The Supreme Court’s Sex-Offender Jurisprudence Is Based on a Lie

The Supreme Court believes most sex offenders will keep committing sex crimes. The data suggests otherwise.

Can the state ban sex offenders from social media? That’s the question at the heart of Packingham v. North Carolina, a case argued before the U.S. Supreme Court last week. In 2002, then–21-year-old Lester Gerard Packingham Jr. was indicted for having consensual sex with an underage girl he was dating. After serving a sentence of two years probation, he was required to register as a sex offender. Nearly a decade later, Packingham was arrested again, after he posted on Facebook that a traffic ticket he had received had been dismissed. That simple act ran afoul of a North Carolina law that makes it a felony for anyone on the sex-offender registry to use any “commercial social networking website” that the person “knows” does not restrict usage to legal adults.” Thus Packingham was indicted and convicted of violating the state’s social media ban for sex offenders. There have been more than a thousand such convictions in North Carolina alone.
The Packingham case has become a First Amendment cause célèbre, and judging from the oral arguments the court may well reverse his conviction on those grounds. It is also a near certainty that even while doing so, the court will leave unexamined a much greater problem: a tragic lie at the heart of all of the jurisprudence surrounding sex offenders. Sex offenders are among the most reviled citizens of our nation. Subject to registration, residency restrictions, and literally hundreds of other constricting laws, the 800,000 people on America’s sex-offender registries are by far the most policed population in our country. Less than a week ago Delaware joined many other states when its Supreme Court ruled that it was constitutional to make sex offenders wear (and pay for) GPS trackers. What drives this extraordinary raft of regulations is a pervasive and resilient belief that sex offenders are extremely likely to repeat their crimes. And despite the fact that the data and the science say otherwise, lawyers and politicians continue to invoke this shibboleth to justify their attempts to curtail the rights of people on the sex-offender registry. Even worse is the fact that this fundamental falsehood has been incorporated into our sex-offender jurisprudence—from the top down.

In 2002, the very same year that Lester Packingham was arrested for having sex with his girlfriend, the Supreme Court first considered the constitutional implications of several obligations placed on the vast swath of people now required to register as sex offenders. In considering the restrictions, Justice Anthony Kennedy found that the state had a compelling interest in regulating sex offenders because the recidivism rate of untreated offenders “has been estimated to be as high as 80 percent.” According to Justice Kennedy, this “frightening and high” recidivism rate, justified conduct by the state that might otherwise fail constitutional muster.

The problem is this: The recidivism statistics the court cites are dead wrong as a matter of social scientific fact. In reality, sex offenders have among the lowest same-crime recidivism rates of any category of offender. Indeed, in the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent.

So how could the highest court in the land arrive at a conclusion so at odds with scientific reality? In 2015, Ira Ellman, a professor at the UC–Berkeley School of Law, uncovered the answer. Engaging in a bit of brilliant legal archeology, Ellman discovered that the 80 percent number came from an amicus brief submitted by the United States solicitor general’s office in McKune v. Lile, a case that was in turn cited in Smith v. Doe, a blockbuster decision that, for the first time, upheld the constitutionality of sex-offender registries.

And where did the government come up with their numbers? As it turns out, the solicitor’s brief in McKune cited a government manual that in turn cited a single article published in 1986 in Psychology Today, a mass-market magazine aimed at a lay audience. It was there that Ellman found this sentence: “Most untreated sex offenders released from prison go on to commit more offenses—indeed, as many as 80 percent do.” The article did not even pretend to be a scientific study. It offered no hard data, and its author was neither a scientist nor a professor, but rather a man with a degree in counseling who ran a program for sex offenders in an Oregon prison.

Despite the questionable provenance of the numbers, Justice Kennedy’s false declaration in Smith about the “frightening and high” recidivism rates has made its way into the heart of our sex-offender jurisprudence. Lower courts have cited it in nearly a hundred different judicial decisions, justifying everything from requiring offenders to live more than 1,000 feet from schools or playgrounds to banning them from entering any city, county, or state park. The language has seeped its way into the popular culture so completely, that the public’s unshakable sense of sex offenders is that they are compulsive sex addicts who will stop at nothing to gain access to our vulnerable children. And while that may describe a small number of predators, it is wildly misleading when applied to the huge number of people we currently list on our sex-offender registries.

The fear surrounding sex offenders is understandable. But we have a right to expect that when our high court rules, it does so based on real science, not imagined or “alternative” facts. Sadly, while the Packingham case offered a terrific opportunity to re-examine the profound and deeply embedded error in our sex-offender jurisprudence, the only person in the courtroom who addressed the issue of recidivism at all was North Carolina’s Deputy Attorney General Robert Montgomery.

And yes, he once again claimed that the frightening and high recidivism rate of sex offenders justified the Facebook restrictions at issue in last week’s case.

David Feige is the director of Untouchable, a documentary feature about sex-offender laws. He spent 15 years as a public defender.

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