A commonly-cited statistic about sex offender re[cidivism] rates is wrong.
This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case.
“Frightening and High”
McKune v. Lile, 536 U.S. 24, 33 (2002) rejected, 5-4, Robert Lile’s claim that Kansas violated his 5th Amendment rights by punishing him for refusing to complete a form detailing prior sexual activities that might constitute an uncharged criminal offense for which he could then be prosecuted. The form was required for participants in a prison therapy program; refusing to join the program meant permanent transfer to a higher security unit where he would live among the most dangerous inmates and lose significant privileges, including the right to earn the minimum wage for his prison work and send his earnings to his family. Justice Kennedy explained the treatment program helped identify the traits that caused “such a frightening and high risk of recidivism” among sex offenders—a rate he said “has been estimated to be as high as 80%.” The following year in Smith v. Doe, 538 U.S. 84 (2003) the Court upheld Alaska’s application, to those convicted before its enactment, of a law identifying all sex offenders on a public registry. It reasoned that the ex post facto clause was not violated because registration is not punishment, but merely a civil measure justified because the “risk of recidivism posed by sex offenders” is “frightening and high”, 536 U. S. at 34.
A “Statistic” With No Support
McKune provides just one citation for its much-quoted statement: a 1988 Justice Department “Practitioner’s Manual”. That reference likely came from the amicus brief supporting Kansas filed by the Solicitor General, then Ted Olson, which also cites it. This Practitioner’s Guide itself provides but one source for the claim, but it’s no scientific study. It’s a 1986 article from Psychology Today, a mass market magazine aimed at a lay audience, which had this sentence: “Most untreated sex offenders released from prison go on to commit more offenses–indeed, as many as 80% do.” Freeman-Longo, R., & Wall, R, Changing a lifetime of sexual crime, Psychology Today (1986). That sentence is a bare assertion with no supporting reference. Nor did its author have the scientific credentials needed to qualify at trial as an expert on recidivism. He was a counselor, not a scholar, and the article containing the sentence isn’t about recidivism statistics. It’s about a counselling program for sex offenders he then ran in an Oregon prison.
Contributor note: As a convicted felon I served 10 months in Seagoville, TX Federal Correctional Institution where I was one of the first offenders to attend the SOTP, Sex Offender Treatment Program. This program was new and in fact I personally attended the very first class that the Federal Department of Corrections offered, it was in the year 2008; shortly after the SORNA kicked in and the feds were required to “do something about offenders rehabilitation efforts.” I could write a book on the short comings of the program itself but I will say this in support of the above article: the Doctors and physiologists that taught the program were not educated in any aspect of ‘recovery’ or soul-searching methods to help the individual.
The information these teachers had at hand were simply, a book that was reworded and extracted from the existing DARP (Drug and Alcohol Recovery Program) and some invalidated information about sex offenses based on fact finding clinical trials from the 1950’s. Yes from the 1950s! A teacher, whom was a licensed psychologist and a Doctor of Psychiatry, provided this information to the class, verbally, in return to a question a student had ask. I do not remember in full but, I believe the student was asking the therapist how they knew, for sure, that the recidivism rate was so high… or something to that effect. I wish I could find the paper someone in the law library wrote which covered this discourse in detail. the paper was sent to several Parents of Sex Offender Prisoners meeting groups somewhere in Alabama and Louisiana. If anyone has this article I would love to read it.