U.S. Supreme Court decisions and sex offender legislation: evidence of evidence-based policy?

• Author: Mancini, Christina

TABLE OF CONTENTS I. INTRODUCTION II. THE U.S. SUPREME COURT, POLICY, AND SOCIAL SCIENCE III. SEX OFFENDER LAWS IV. SEX CRIME LAWS AND THE U.S. SUPREME COURT V. THE PRESENT STUDY VI. FINDINGS A. Sex Crime Prevalence B. Sex Crimes Involving Children C. Sex Offender Treatment D. Sex Offender Recidivism and Reentry E. Effects of Sexual Victimization VII. DISCUSSION AND CONCLUSION I. INTRODUCTION

U.S. Supreme Court decisions constitute the "law of the land"--that is, they have the potential to affirm, modify, and even overturn public policy. (1) For example, the 1972 decision Furman v. Georgia prohibited states from imposing capital punishment pursuant to statutes allowing unbridled discretion of the judge or of the jury, (2) while the 1976 decision Gregg v. Georgia enabled them to resume using it. (3) Such an influence on public policy historically has derived from the Court's interpretation of contested constitutional issues. However, scholars have argued that the influence increasingly involves interpretation and use of social science research. (4) The greater accessibility of such research, for example, "has made American law receptive to valid science to an unprecedented degree." (5) Indeed, the Court's decision in Daubert v. Merrell Dow Pharmaceuticals (6) requires courts to "evaluate the research methods supporting expert evidence and the principles used to extrapolate from that research to the task at hand." (7) Thus, in addition to settling questions of law, judges and Justices must also be able to consider and assess social scientific research.

This requirement presents substantial challenges for judges because legal education typically does not include training in research methods or statistics, or, by extension, instruction in how to interpret the results of empirical research studies, especially when such studies involve complicated questions involving research design, measurement, sampling, or analysis. (8) Supreme Court Justice Antonin Scalia has emphasized this point. In his dissenting opinion in Roper v. Simmons, a case in which the Court prohibited the execution of juveniles, he remarked, "Given the nuances of scientific methodology and conflicting views, courts ... are ill equipped to determine which view of science is the right one." (9) Notably, the problem is central to the Court's decisions in cases that affect many prominent criminal justice policies. The findings from empirical research, for example, have been cited in such landmark cases as McCleskey v. Kemp (racial discrimination and capital punishment), (10) Atkins v. Virginia (execution of the mentally handicapped), (11) and District of Columbia v. Heller (gun control). (12)

This use of social scientific research in Court decisions has occurred as policymakers and practitioners have increasingly emphasized the importance of evidence-based policy, (13) which draws on credible research to support the assumptions on which it is premised. (14) Given the Court's prominence in shaping policy, (15) and its use of empirical research in some decisions, (16) the question arises: How is the social scientific research interpreted? For example, does the Court interpret scholarship in a manner that accords broadly with the state of empirical evidence and not only that from select studies? Does the Court acknowledge competing claims supported by different bodies of empirical research? If it does, then its decisions arguably rest on an evidence-based foundation. If it does not, then, conversely, its decisions arguably lack an evidence-based foundation.

Against this backdrop, the goal of this study is to supplement scholarship on the Court's role in contributing to evidence-based crime and criminal justice policy. To this end, we focus on a largely neglected area of investigation--the Court's role in upholding, reversing, or modifying sex crime laws, and, in particular, whether the Court not only has drawn on social science but has accurately interpreted extant scholarship. This focus stems from two considerations. First, sex crime laws have proliferated during a period of time in which courts increasingly have evaluated research that bears on legal decisions. (17) Second, many of these laws proceed from faulty assumptions about sex crime. (18)

Accordingly, this study examines all Supreme Court decisions from 1991 to 201 1 that focused on sex crimes or sex offenders. We address two research questions. First, to what extent does the Court make reference to scholarly work in its decisions? Second, is the Court's use and interpretation of research in these cases consistent with findings from a larger body of scholarship centered on understanding sexual offending? Specifically, Part II of the study describes the Supreme Court's role in affecting public policy and its use of social science research in rendering decisions. Part Ill reviews prominent sex crime laws enacted nationally. In Part IV, we examine Supreme Court decisions concerning the constitutionality of these reforms. Study methodology is outlined in Part V. Findings are presented in the subsequent section, Part VI. Finally, in Part VII, we conclude with a discussion of the study's implications for theory, research, and policy.

2. THE U.S. SUPREME COURT, POLICY, AND SOCIAL SCIENCE

   Scholars have long observed that U.S. Supreme Court decisions constitute a form of public policy. For example, Barbara Ann Stolz has emphasized that the Court, through its interpretation of the law, engages in policymaking directly affecting the actions of law enforcement, corrections, and, more broadly, the criminal justice system. (19) Recently, Richard D. Hartley and Rob Tillyer showed how the Court's decisions have substantially altered sentencing laws. (20) There are, to be sure, clear limits to the Court's influence on policy. The Court can only hear cases brought before it, and there may be substantial gaps between what its decisions require and how well these requirements are implemented in the criminal justice system; even so, Court decisions have the potential to affect crime reforms by, among other things, ruling that they are unconstitutional. (21)

   Court rulings derive from several sources, but historically social science research has not been one of them. (22) Indeed, prior to the 1900s, the Court had not relied on social science research in an opinion. (23) At the turn of the century, however, a shift occurred. In Muller v. Oregon, Louis D. Brandeis, acting as a litigator, submitted a brief to the Court that cited research describing the negative effects of long industrial work hours on women. (24) The Court referenced this research to help justify its decision in Muller. (25) This recognition of empirical work "is considered a watershed in the Supreme Court's use of social science research evidence...." (26)

   A half-century later, in one of its most famous cases, Brown v. Board of Education, the Court drew heavily on psychological and educational research. (27) Since then, social scientific research increasingly has surfaced in the proceedings and decisions of American courts. (28) More recently, Shawn D. Bushway and Anne Morrison Piehl emphasized that "it is clear that social science can and will be taken into account by legal actors such as the Supreme Court." (29) How the Court uses social science research varies. Justices may obtain information from briefs submitted by the parties or amicus curiae. As but one example, the American Psychological Association et al. submitted an amici curiae brief that argued against mandatory life sentences without the possibility of parole for juveniles convicted of homicide offenses in Miller v. Alabama. (30) The brief argued, in part, that psychological research strongly indicates that juveniles are not as capable as adults of anticipating the consequences of their actions and, as a result, should not be held as culpable as adults for their offenses. (31) The Court appeared persuaded by the evidence presented in the brief, (32) as it reversed the practice, finding that mandatory life without parole sentences for juveniles amounted to cruel and unusual punishment. In contrast, some accounts suggest that Justices may occasionally undertake independent literature searches. (33) To date, studies of the Supreme Court's use of research have focused on such dimensions as the number of citations mentioned in court decisions, (34) the role of amicus curiae briefs and judicial decisionmaking, (35) and the influence of expert testimony. (36) Notably, however, basic questions remain about the extent to which the Court draws on research and whether it does so accurately. Over twenty years ago, in a review of Supreme Court reliance on scientific research, James R. Acker concluded that "we know little about such basic matters as ... what kinds of references are utilized" and whether the Court summarized research findings in a manner consistent with the state of scientific research. (37) That assessment remains largely the same today. (38)

3. SEX OFFENDER LAWS

   The U.S. Supreme Court renders decisions on a broad range of issues each year. This fact makes it difficult to assess not only the Court's use of social science research but also the extent to which the research is accurately represented. One strategic avenue through which to investigate this issue, however, is to focus on the Court's decisions in a particular policy arena. Here, we adopt this approach and focus on sex offender laws for three reasons. First, the federal government and state legislatures have been active in developing and implementing an array of sex offender reforms in recent decades. Second, per some accounts, sex crime laws appear to reflect panic-driven responses that have resulted from misperceptions about sexual offending. Some scholars have observed that the emergence of sex crime reforms has not followed an increase in sexual offending; (39) indeed, in the last decade and a half, reports...