'Frightening and high': the Supreme Court's crucial mistake about sex crime statistics.

• Author: Ellman, Ira Mark

It isn't what we don't know that gives us trouble, it's what we know that ain't so. (1)

In McKune v. Lile, 536 U.S. 24, 33 (2002), the Supreme Court reversed two lower courts in rejecting, 5-4, Robert Lile's claim that Kansas violated his 5th Amendment rights by punishing him for refusing to complete a form detailing all his prior sexual activities, including any that might constitute an uncharged criminal offense for which he could then be prosecuted. The form was part of a prison therapy program that employed a polygraph examination to verify the accuracy and completeness of the sexual history which program participants were required to reveal. Lile had earned placement in a lower-security prison unit, but the automatic punishment imposed on him for declining to complete this form included permanent transfer to a higher security unit where he would live among the most dangerous inmates, and lose significant prison privileges, including the right to earn the minimum wage for his prison work and send his earnings to his family.

Justice Kennedy, justifying this conclusion for the four-person plurality, wrote that the recidivism rate "of untreated offenders has been estimated to be as high as 80%." The treatment program, he explained, "gives inmates a basis ... to identify the traits that cause such a frightening and high risk of recidivism." 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 reasonably designed to protect public safety. Now writing for a majority, Justice Kennedy's Smith opinion recalled his earlier language in McKune:

Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature's findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is "frightening and high." McKune v. Lile, 536 U. S. 24, 34 (2002). This "frightening and high" recidivism rate of "sex offenders" (more on the term "sex offender" later) is a commonly offered justification for the increasingly harsh set of post-release collateral consequences imposed on them, nearly all triggered by their inclusion in sex offender registries. An example is the voters' pamphlet argument for the California initiative known as Jessica's Law, which imposed extraordinary residency restrictions on sex offenders and also required them to wear location-monitoring ankle bracelets for life. These extreme measures were justified, the argument explained, by sex offenders' "very high recidivism rates." (2)

Residency restrictions like those in Jessica's Law are severe enough to exclude registrants from most available housing in their community, preventing them from living with their families. (3) Separate "presence restrictions" in many communities bar registrants from using public libraries or enjoying public parks with their families. (4) Their registration formally excludes them from many jobs, (5) and as a practical matter keeps them from many more. The registration requirement typically extends for decades, and in some states, such as California, for life, with no path off the registry for most registrants. Challenges to the registration requirement, and the consequences that flow from it, are usually turned back by courts and politicians who often quote Justice Kennedy's dramatic language describing the recidivism rate for sex offenders as "frightening and high." A Lexis search of legal materials found that phrase in 91 judicial opinions, as well as briefs in 101 cases.

Two examples from state supreme courts give the flavor of these decisions. The Iowa Supreme Court, while expressing sympathy for the "difficulties" that state's residency restrictions created for the "offender and his family, who lack financial resources," (6) still rejected his constitutional challenge to them because "the risk of recidivism posed by sex offenders is 'frightening and high", as "numerous authorities have acknowledged." (7) Despite this reference to "numerous authorities," only Justice Kennedy's language in Smith was cited. A Kansas law mandating lifetime post-release supervision of all sex offenders applied to a 25-year old man convicted of consensual intercourse with a fifteen year old girl who testified she had "encouraged" his behavior. (8) A Corrections Department psychologist testified that he had accepted responsibility for his actions, displayed an "appropriate level of remorse," and was at low risk to re-offend. (9) The Kansas Supreme Court nonetheless rejected his challenge to the statutes' mandated lifetime supervision, citing Smith, and explaining the legislature could reasonably have "grave concerns over the high rate of recidivism among convicted sex offenders" whose risk of recidivism "is frightening and high." (10)

Given the impact of the language in Smith and McKune, it seems important to know whether it's true-whether those convicted of sex offenses indeed re-offend at an 80% rate that is both "frightening and high," and much greater than the rate for other offenders.

McKune provides a single citation to support its statement "that the recidivism rate of untreated offenders has been estimated to be as high as 80%": the U.S. Dept, of Justice, Nat. Institute of Corrections, A Practitioner's Guide to Treating the Incarcerated Male Sex Offender xiii (1988). Justice Kennedy likely found that reference in the amicus brief supporting Kansas filed by the Solicitor General, then Ted Olson, as the SG's brief also cites it for the claim that sex offenders have this astonishingly high recidivism rate. This Practitioner's Guide (11) itself provides but one source for the claim, an article published in 1986 in Psychology Today, a mass market magazine aimed at a lay audience. (12) That article has this sentence: "Most untreated sex offenders released from prison go on to commit more offenses--indeed, as many as 80% do." (13) But the sentence is a bare assertion: the article contains no supporting reference for it. Nor does its author appear to have the scientific credentials that would qualify him to testify at trial as an expert on recidivism. (14) He is a counselor, not a scholar of sex crimes or re-offense rates, and the cited article is not about recidivism statistics. It's about a counseling program for sex offenders he then ran in an Oregon prison. His unsupported assertion about the recidivism rate for untreated sex offenders was offered to contrast with his equally unsupported assertion about the lower recidivism rate for those who complete his program.

So the evidence for McKune's claim that offenders have high re-offense rates (and the effectiveness of counseling programs in reducing it) was just the unsupported assertion of someone without research expertise who made his living selling such counseling programs to prisons. (15)

The Solicitor General's brief in Smith is also the likely source of a second influential phrase about sex offenders. The brief frames the question before the Court with this opening statement:

Sex offenders exact a uniquely severe and unremitting toll on the Nation and its citizens for three basic reasons: "[t]hey are the least likely to be cured"; "[t]hey are the most likely to reoffend"; and "[t]hey prey on the most innocent members of our society." United States Dep't of Justice, Bureau of Justice Statistics (BJS), National Conf. on Sex Offender Registries (National Conf.) 93 (Apr. 1998).

The Smith opinion did not quote this language, but others have. One example is the preamble to California's Jessica's Law, which attributes the quoted language to an otherwise unidentified "1998 report by the U.S. Department of Justice." (16) The California Supreme Court's citation attributed the same language to "a report by the United States Department of Justice." (17) The language has also appeared in several local ordinances in the Midwest. (18) Yet the statement is rather odd. What does it mean to say that sex offenders are "the least likely to be cured?" Least likely to be cured of what? Of the inclination to commit sex offenses? In that case, who's more likely to be cured? People who don't have that inclination in the first place? It's hard to imagine any scientist making such an incoherent statement, and a search for the referenced "Justice Department Report" reveals that none did. The "report" is merely a collection of speeches given at a 1998 conference of advocates for sex offender registries. The collection's cover sheet disavows any Justice Department endorsement of its contents. (19) The "least likely" phrase is taken from a speech in this collection given by a politician from Plano, Texas, who never claimed any scientific basis for it. Indeed, she did not even claim it was true. What she actually said was that it is a statement she likes to make. (20) The Solicitor General's representation of this statement as a Justice...