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September 12, 2017

New op-ed and op-doc from New York Times takes on "A ‘Frightening’ Myth About Sex Offenders"

David Feige has a new op-ed and a short video documentary unpacking and attacking the notion that sex offender recidivism rates are extraordinarily high.  This op-ed is headlined "When Junk Science About Sex Offenders Infects the Supreme Court," and this op-doc is titled "A ‘Frightening’ Myth About Sex Offenders."  Here is how the op-ed starts and ends:

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans.  Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.”  The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake.  The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release.  In the 24 years it has existed, not a single “patient” has ever been fully released.  There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness.  In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal.  They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.”  The problem is this: The 80 percent recidivism rate is an entirely invented number....

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear.  The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record.  More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study.  Simple decency and perhaps more important, intellectual honesty demands better.

A few prior recent related posts:

September 12, 2017 at 08:11 PM | Permalink


See also Commonwealth vs Muniz, in Pennsylvania, which may get appealed to SCOTUS. And Commonwealth vs Reed, also in Pennsylvania was just decided I believe based on Muniz.

Posted by: Salmon | Sep 12, 2017 8:15:05 PM

Also Millard vs Rankin, just decided in Colorado. Yet another as applied challenge decision that registry is punitive.

Posted by: Salmon | Sep 12, 2017 9:10:04 PM

Regulatory quackery should be criminalized. Regulators promoting ineffective or harmful regulations should see prison time with sentencing guidelines of white collar crime.

Posted by: David Behar | Sep 13, 2017 9:48:40 AM

I am surprised that no major Attica-like uprising has occurred at Moose Lake Civil Commitment Center. If these ex-convicts have no hope of release, what incentive to they have to behave themselves before staff and corrections officers? To put it another way, what would these detainees have to lose by taking hostages among the staff, or even in killing the custodial staff, for that matter? It seems the worse they would have to fear is another life sentence at a real prison with conditions no worse than the ones they have to contend with at Moose Lake? Do they choose only submissive inmates for the Moose Lake program so as to avoid any militant or violent gang-member type in civil commitment? The program is almost 25 years old which surprises me that no major flare up has occurred there like Attica in 1971.

As for major restrictions for former sex offenders not in civil commitment, those restrictions could put law enforcement personnel at extra risk to their own safety if former sex offenders decide to take revenge against their restrictions. I could imagine two scenarios where enforcing these laws could endanger a law enforcement officer without contributing one bit to the public safety. Scenario one I call the accidental killing where a sex offender at his or home mistakes a police officer for a burglar or a vigilante and decides to invoke the "stand your ground" response of killing whom they thought was an intruder only to learn that it was a police or parole officer they killed. Scenario two would be the deliberate killing where a former sex offender who has become extremely bitter over the restrictions that he or she decides to take revenge by either booby-trapping his or her home or in stalking individual officers.

These pragmatic reasons for abolishing civil commitment and other restrictions deserve equal heeding as other reasons for repeal.

Posted by: william r. delzell | Sep 13, 2017 9:49:19 AM

Time to dissolve the registry.

Posted by: kat | Sep 13, 2017 10:38:04 AM

There's a reason why there has not been an uprising at Moose Lake or Coalinga, California or anywhere else sex offenders are illegally held beyond their terms of imprisonment: sex offenders are, overwhelmingly, passive and non-violent, contrary to all of the images held of them in the popular imagination. I've been advocating, from the outside for Coalinga "Hosprisoners" for well over a decade now and am continuously frustrated at their unwillingness to organize and fight for their own rights.

It's why there hasn't been prison uprisings of sex offenders or sex offenders going "postal" in the face of extraordinary injustice, taking down D.A.'s and judges despite the opportunities.

Ask anyone who works with these populations and they will tell you that sex offenders are overwhelmingly compliant and unwilling to engage in battle.

It's not what people believe but then, few understand anything about them except for the received sensationalist mythology.

Posted by: David Kennerly | Sep 14, 2017 10:22:14 PM


Regardless of what SCOTUS says, Commonwealth vs Muniz is settled law. In Spann v. Pennsylvania Board of Probation & Parole and Pennsylvania State Police [http://caselaw.findlaw.com/pa-supreme-court/1870976.html], Justice Mundy, who did not participate in Muniz because of her involvement in Commonwealth v. Gilbert, 48 MAP 2016, concluded that "Although I disagree with Muniz's conclusions, they are now the law of this Commonwealth. As such, they must be applied in a meaningful way."


Posted by: Huh? | Sep 30, 2017 12:31:07 PM

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