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June 21, 2017

A misdirected attack on two notable sentences in Justice Alito's Packingham concurrence

There is a lot worth discussing concerning the Supreme Court's decision in Packingham earlier this week (basics here), and this new Washington Post "Fact Checker" piece decides to give particular attention to two lines from Justice Alito's concurrence in a piece headlined "Justice Alito’s misleading claim about sex offender rearrests."  I find the WaPo piece itself somewhat misleading (or really misdirected) because it is focused too much on the second of these two sentences in Justices Alito's opinion rather than the first:

“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”

After reviewing a bunch of statistics, this WaPo piece comes to this conclusion:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading.  It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release.  This makes it seem like recidivism among sex offenders to be a uniquely bad problem, but it is an apples-to-oranges comparison.

This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago.  Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide.   It does the public no service when the Supreme Court justices make a misleading characterization like this.  We award Three Pinocchios.

I find disconcerting that what this WaPo piece is calling " quite misleading" is a sentence (the second one above) that is factually accurate.  The piece strikes me as especially problematic because it fails to stress that what might make the second sentence about "sex offender rearrest trends" potentially misleading is that it follows the forceful assertion that "repeat sex offenders pose an especially grave risk to children."  In my reading, it is the phrase "especially grave risk to children" that contributes to the impression that "recidivism among sex offenders [is] a uniquely bad problem."

That all said, the ever bigger problem with the law at issue in Packingham and lots of other similar laws and the WaPo commentary itself is use of the always-way-too-broad offender category of "sex offender."  This board label necessarily lumps together some relatively minor adult offenders and some relatively very serious offenders who consistently victimize children.  There are certainly some serious sex offender who do pose an "especially grave risk to children," but many folks on sex offender registries may pose less of a risk to children than do the average person.

Ultimately, these are challenging issues to discuss with precision both conceptually and statistically.  And though I am always pleased to see detailed discussion of crime data in the Washington Post, I am troubled by its decision to "award Three Pinocchios" to a statement that is factually true. 

UPDATE: I just noticed that Ed Whelan over at Bench Memos has this more thorough review of this WaPo piece under the titled "Fact-checking the fact Checker."

June 21, 2017 at 04:29 PM | Permalink


A lot of fact checkers have been guilty over the past several cycles of criticizing politicians of both sides for being "misleading" for not including all of the caveats and qualifications on a generally true statement that the fact checkers want to be made. (E.g., talking about recent statistics that look good or support your argument without including statistics from a slightly longer time period that point in the opposite direction).

The line in question in this case was not the essence of the opinion. If the Alito opinion had upheld the statute, perhaps the failure to do a deep dive into the evidence supporting the conclusion would be a legitimate criticism. Critiquing what is essentially a throw-away line that tosses a bone to the legislature for not doing the type of thorough analysis that would be appropriate if the case turned on this issue seems itself to be misleading.

Posted by: tmm | Jun 21, 2017 4:42:12 PM

What I find disconcerting, Doug, is none of the data anyone uses points out that, according to the National Child Traumatic Stress Network and the National Association of Adult Survivors of Child Abuse [to name a couple], 90% of child sexual abuse victims know their abuser, and 68% are abused by family members. How does a sex offender registry protect a child when the threat of abuse comes from within? All sex offender registries do is lull the populous into a false sense of security. Anyone that says otherwise is intentionally being disingenuous.


Posted by: Huh? | Jun 21, 2017 4:50:57 PM

Let's not start clouding or confusing the issue. Yes there are always "some" offenders in any crime that will re-offend with the same type of crime when released.


The issue at hand is the politicians are always painting with a broad stroke, the entire registry will re-offend if not kept an eye on.

This is just not true nor has it ever been.

The registry, as was envisioned in Smith 2003 was one of notification. That same registry is now used to punish and re-punish.

As stated above, 90% of registered sex offender were known to their victim. Today's registry protects no one as it is only used to shame and punish. It does not stop a person from re-offending at all no will it ever.

Posted by: Book38 | Jun 21, 2017 5:47:38 PM

Justice Alito's comment is to me not merely "throw away" because it has implications for future cases.

He wrote the concurrence out of a belief that the majority opinion had excessive dicta that would interfere with proper regulations, including regarding certain sex offenders. The assumption of danger there has implications for the future, just like it factored in when the Supreme Court decided questions involving them in the past. The report cited by Kennedy referenced in the article, e.g., has been challenged in the past on this very blog in part because it is used to uphold too broad regulations involving allegedly particularly dangerous individuals.

I appreciate the discussion though am a bit surprised. Past comments would suggest a more positive response. But, each thing has to be taken as it comes, I guess.

Posted by: Joe | Jun 21, 2017 6:04:41 PM

I think the point made in the Washington Post piece is both correct and important, because various versions of Alito's statement are common and misapprehend the meaning of the data in ways that really matter for policy purposes. Consider: suppose something like 75% of the abused children were abused by an adult living in their household (it's something like, the precise number isn't important for this point). Alito's point is akin to saying that we should impose restrictions on adults who live with children, since they are three times as likely as those who don't to commit an act of sex abuse. That's an absurd result, of course, but it's absurd not because the factual claim is not true, it is. It is absurd because the factual claim is not relevant. What's relevant is that the vast majority of adult living with children do not abused them--which is also true of the vast majority of people labeled "sex offender", who will NOT commit any sex offense against anyone in the future. I also agree, of course, that the label SO is put on a very heterogeneous group of people who do not share risk charactertics. The California AG has estimated that less than 8% of people on the California registry are high risk.

Posted by: Ira Ellman | Jun 21, 2017 7:13:31 PM

Fact: DAB doesn't really much like the Washington Post.

Posted by: anon | Jun 21, 2017 7:41:29 PM

Fact-check: the Washington Post was my childhood paper, and I still recall fondly taking the sports page to my elementary school many mornings to calculate updated batting averages based on the reprinted box scores (showing my age here, I know). For that reason and many others, WaPo will always have an extra warm spot in my heart (though the WSJ will always have the warmest spot because they did a feature about this blog way back in 2004).

In other words, I like WaPo as much if not more than any newspaper, although they all tend to seem comparable to me in this modern digital age. Indeed, probably the main reason I would come to dislike a paper these days is because their content is behind a paywall (and that is a problem of late for me with both WaPo and WSJ).

And I am especially bemused, anon, by the idea that my feelings for a paper would really impact my blogging about their content.

Posted by: Doug B. | Jun 21, 2017 8:17:22 PM

The Post piece caught my attention because I rarely see a Supreme Court opinion get "fact checked." After reading Alito's opinion and the reading through McKune and Kebodeux I think the writer for the Post missed the broader context that the claim was used in. The Post writer claims Alito is comparing apples to oranges, but that is the purpose of the comparison. All three cases involve government action that is being challenged and as such the the court needs to look at the government's interest in enacting the law in question. The government has an interest in protecting children and others against sexual assault. The evidence cited indicates that those who are arrested for a sex offense are more likely than other convicted criminals to commit sexual assault in the future. Therefore the government has chosen to enact additional punishment or requirements of release on sexual offenders as a class.

If the government required all convicted criminals to register as a sex offenders to protect children, which is a legitimate purpose, the state would likely be overinclusive. It matters that the class being regulated (sex offenders) is seen as different from other offenders. Whether it's inducement to take part in a sexual rehabilitation program (McKune), register under SORNA (Kebodeaux), or refrain from using social media (Packingham), the court is simply acknowledging that the law is related to a legitimate government interest and the class being regulated is related to that interest. From there the analysis can continue to other issues and whether those issues withstand scrutiny given different arguments.

In Kebodeaux the opinion, right after citing the updated study, mentions that these findings have been questioned (another study is cited). But it defer to Congress as the branch that is best in position to weigh competing evidence and give weight to one side over another.

I don't read anything nefarious or misleading in Alito's opinion, or the opinions cited. It's just connecting the government interest with the class covered by the legislation. The strength of this connection matters when weighing it against the deprivation of liberty that occurs because of the legislation.

I think the Post writer, while meaning well, simply missed the broader connection that the claim was cited in support of. One could certainly take issue with citing social science findings from older opinions, given the potential of new evidence, and blending them with law. I make no claim on this issue here. Nor do I make any judgment on the laws at issue in the cases and whether they are "good" or "bad."

Posted by: Sean | Jun 21, 2017 9:25:55 PM

On a side note Doug, The Washington Post offers a free digital subscription to those with a .edu address, which I would assume you have. The link to set-up an account is: https://subscribe.washingtonpost.com/specialoffer/#/gov-mil-edu

With regards to the Wall Street Journal it looks like your university library subscribes to it and you have access through the library catalog. The link to it is http://library.ohio-state.edu/search~S7?/yw/yw/1%2C88%2C90%2CB/eresource&FF=ywall+street+journal&1%2C1%2C

Not sure if that will give you access to the actually wsj.com website or if its just a database of articles (the former is obviously more conducive to browsing). Call me simple but these are the perks I love about academia!

Posted by: sean | Jun 21, 2017 9:45:24 PM

Doug, you seem to be assuming there is a factual basis for treating sex offenders as a special risk to children placing restrictions on them that are not placed on others including other felons. But of course that is exactly the claim that is being contested here. And the claim Alito seemed to be trying to support with the passage Michelle Lee criticized. Her point that the data Alito cites provides no support for the claim is I think think. And it is an important point.

Posted by: Ira Ellman | Jun 21, 2017 10:10:06 PM

Whoops, typo--should be "is I think correct" not "is I think I think"! but hopefully I do think.

Posted by: Ira Ellman | Jun 21, 2017 10:11:47 PM

Please explain what this means:

There are certainly some serious sex offender who do pose an "especially grave risk to children," but many folks on sex offender registries may pose less of a risk to children than do the average person.

Posted by: Diogenes | Jun 22, 2017 7:10:45 AM

New evidence says US sex-offender policies are actually causing more crime

Posted by: Anon2017 | Jun 22, 2017 8:08:19 AM

Diogenes: there is empirical data that suggest that certain groups of sex offenders, often labeled as having pedophilia, are at high risk of continued criminal behavior directed toward children; other empirical data suggest that other groups of sex offenders, often those involved only in adult-oriented, lower-level offenses, who may be considered less of a risk to children than just an average person.

Posted by: Doug B | Jun 22, 2017 10:59:37 AM

I hate the Washington Post, with the exception of all its wonderful, and occasionally nostalgic, sports stuff.

Posted by: anon | Jun 22, 2017 12:29:32 PM

Doug, can you provide a link to this empirical data? We have seen Justice Kennedy use a glossy article that started this oppression and now rights are being stripped away even from those who's sentences have already been completed.

I just don't want to add to the bad data by throwing around "opinions" without the data being verified.

Your blog has a far reaching audience and I want the facts to be known and truth to be told.

Posted by: Book38 | Jun 22, 2017 2:05:50 PM


I believe that the data suggest that adults who rape stranger female victims and also adults who molest same-sex stranger victims have higher rates of re-offense than other groups. Whether that translates to a risk that justifies a blanket policy of dubious efficacy in preventing sexual violence is another question entirely. Turning people into social lepers and pariahs does not make them more likely to be well-developed, pro-social individuals.

Posted by: Guy | Jun 22, 2017 2:54:55 PM

Ira and Book38 and Guy: Here is a DOJ page with lots and lots of recidivism data based on lots and lots of studies and with lots and lots of wise caveats about what the studies show and do not show: https://www.smart.gov/SOMAPI/sec1/ch5_recidivism.html Here are some summary points from the DOJ page toward the end of a lengthy discussion making the point about empirical data showing different sex offenders having different recidivism profiles:

"Female sex offenders have lower rates of sexual and general recidivism than male sex offenders. Five- to six-year rates of sexual recidivism for female sex offenders may be as low as 1 to 3 percent....

"Different types of sex offenders have markedly different rates of recidivism. Research that examines the recidivism of rapists and child molesters indicates that the highest observed recidivism rates are found among child molesters who offend against boys. Harris and Hanson's (2004) analysis, for example, found a 5-year sexual recidivism rate of 23 percent and a 15-year sexual recidivism rate of 35 percent for molesters of boys. Comparatively lower recidivism rates are found for rapists, child molesters who victimize girls, and incest offenders. In the Harris and Hanson (2004) analysis, rapists were found to have a 5-year sexual recidivism rate of 14 percent and a 15-year sexual recidivism rate of 24 percent. Child molesters who victimize girls were found to have a 5-year sexual recidivism rate of 9 percent and a 15-year sexual recidivism rate of 16 percent.

"While differential rates of recidivism between opposite-sex and same-sex child molesters have not always been found in research, the weight of the evidence suggests that contact offenders who target boys are more likely to sexually reoffend than those who target girls (Seto, 2008)..... It is important to keep in mind, however, that the recidivism rates observed for child molesters, and for incest offenders particularly, are artificially depressed by underreporting even more so than recidivism rates for other types of sex offenders, as research indicates that child victims who know their perpetrator are the least likely to report their victimization."

These data, which are imperfect in many ways, do not conclusively prove anything nor do they necessarily justify a unique type of offender restriction for all or any subclass of sex offender. But the research does support the idea that a particular class of sex offender --- specifically men who have repeatedly molested boys --- present a particularly high risk of committing further sex crimes against children over time.

Posted by: Doug B | Jun 22, 2017 5:47:31 PM


I don't know how any of it really matters. Justice Samuel Anthony Alito Jr. is a bible thumping Nancy boy who who more than likely refuses to have sex with a light on.

Based upon the data I've seen, only 9.2% of child abuse cases are sexual in nature. 10% [0.92%] of all child sex abuse cases are committed by strangers. 68% of abusers are family members, and the majority of sex abuse cases are new. BJS data suggests that sex offenders overall have a 5.3% rearrest rate, with the rearrest rate for child molesters at 3.3%.

The rearrest [recidivism] rate or level of risk shouldn't be the focus where the Internet is concerned. Most offenders are NOT abusing kids they don't have access to. Again, 0.92% of child sex abuse cases are committed by strangers. Offenders not at risk of abusing kids they don't have access to are not going on the Internet to lure kids away from their computer screens. Why focus attention on the majority of offenders who 1.) abused someone they knew, 2.) are Romeo & Juliet [Romeo & Romeo, etc] cases, 3.) are cases where someone was arrested 20 years ago and has been free of convictions or, 4.) were child pornography cases, where even some judges admit, there is NO empirical data that suggests a person convicted of possession of CP will sexually abuse a child?

Let's face it, condoms are not 'one size fits all.' Even the people who started it all [Jerry and Patty Wetterling] know it has gone too far and changes need to be made.


Posted by: Huh? | Jun 22, 2017 6:16:07 PM

It matters because the politicians and the general public will use any data they receive as gospel truth. No matter if it's correct or not.

It matters because the registered humans (and their families) who are being oppressed by these statutes have to live through all of the crap laws the politician create just to get a vote.

It matters because it's literal "hell" to fight a government who takes away a persons constitutional rights, even after their sentence is complete just because one justice made a grave error by quoting a phrase like "Frighting and High".....when no such fact ever existed.

It matters because....one day....sanity will return to our courts and legislators when they make laws that include safety and human/civil rights.

It matters because it's the correct way govern a society by have the truth sitting before you when you craft a bill.

Posted by: Book38 | Jun 22, 2017 9:19:26 PM

This amicus brief filed in Packingham provides some additional insights into the facts: http://www.scotusblog.com/wp-content/uploads/2016/12/15-1194_amicus-petitioner-ATSA.pdf.

Posted by: Amici | Jun 23, 2017 9:38:24 AM

Well, I was going to commment, but then I read the comment posted by: Huh? and he (or she) said everything that I would want to say about this.

Alito's comment was mistaken and based on false data and false belief.

Sex offender registries are extra punishments and any claim that they are instead based on public safety is completely false, as hundreds of studies done over the past 4 decades show unequivocally (and as some on this comment thread have made reference to).

There is no public safety benefit to sex offender registries and substantial societal damage done by them.

Lastly, Doug is right. Men who molest boys, especially not in the family (like teachers, priests, etc.) have been revealed to be the most intransigent molesters: a true fixation that society should be aware of.

But there are already harsh laws against that type of illegal sexual activity. So again, a registry is some kind of attempt at preventing future crime.

The saying when guns are outlawed only outlaws will have guns comes to mind here. A fixated boy molestor will move continually if stymied in one area. Registering will not stop him. An otherwise law-abiding sex offender of the type mentioned above by Huh? will register and be revealed to everyone in his or her community as a predator child molester (that's truly what the public believes you are if you are on the registry no matter what your offense).

Doug, there are laws against illegal sex. If a truly fixated individual continues to break those laws then the commensurate punishment should go up. There is still no need for an SO registry.

Even for the worst.

Posted by: Stephen Douglas | Jun 23, 2017 9:58:48 AM


None of what you said matters when you don't read comments posted.

My entire point was that the laws, all of them, are ineffective because thye don't address any issue. If the majority of cases a committed by a person within a child's circle, how will any registry or any law that purports to protect kids be effective? If the person most likely to molest a child isn't already on the registry, lives in the home, or is a trusted friend or neighbor, then the issue is access.


Posted by: Huh? | Jun 23, 2017 4:56:56 PM

If the U.S. is a nation based upon constitutional democracy And
Legit interest > constitutional prohibition. No real nation exists!

Posted by: Tim Lawver | Jun 23, 2017 5:52:58 PM

Packingham proves the idea mentioned above. The bar on his FB access by N.C. proves that state legislators overwhelmingly approved of unconstitutional law. Trail judge had the opportunity to dismiss on grounds given it was properly raised, He/she DENIED stated request.

SCOTUS ruling here makes Trial Judge and Majority in SCONC were both in error. So in fact, no state/nation of constitutional basis was in hand for Mr. Packingham, or anyone else for that matter, at least in real time.

If people are required to follow their leadership, then they are required to act unconstitutionally and they WILL.

Posted by: Tim Lawver | Jun 23, 2017 7:10:28 PM

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