“FRIGHTENING AND HIGH”: THE SUPREME COURT’S CRUCIAL MISTAKE ABOUT SEX CRIME STATISTICS

“FRIGHTENING AND HIGH”: THE SUPREME COURT’S CRUCIAL MISTAKE ABOUT SEX CRIME STATISTICS

Ira Mark Ellman* Tara Ellman**

It isn’t what we don’t know that gives us trouble, it’s what we know that ain’t so.’

http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2616429

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 fourperson 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).

 

* Charles J. Merriam Distinguished Professor of Law, Affiliate Professor of
Psychology, Arizona State University; Distinguished Affiliated Scholar, Center for the
Study of Law and Society, University of California, Berkeley.
** Consultant, Tempe, Arizona.
1. Often attributed to Will Rogers or to Mark Twain, but neither attribution
appears to be documented. See Bob Kalsey, “It Ain’t What You Don’t Know”, WELL,
Now, BOB (July 1, 2008), http://wellnowbob.blogspot.com.
496 CONSTITUTIONAL COMMENTARY [Vol. 30:495
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 housinf in their
community, preventing them from living with their families. Separate
“presence restrictions” in many communities bar registrants from using
public libraries or enjoying public parks with their families.! Their
registration formally excludes them from many jobs,5 and as a practical
2. This was noted in People v. Mosley, 60 Cal. 4th 1044,1061 n.10, 344 P.3d 788,185
Cal. Rptr. 3d 251 (2015). For the actual voters’ pamphlet summarizing the provisions,
providing arguments for and against, and containing the law’s full text, see
http:/lwww.voterguide.sos.ca.govlpast/2006/general/props/prop83/prop83.htm (last visited
Aug. 4, 2015).
3. For specifics, see the data described in In re Taylor, 60 Cal. 4th 1019, 343 P.3d
867, 184 Cal. Rptr. 3d 682 (2015). Russell Banks wrote a novel, Lost Memory of Skin
(2011), based on the camp of sex offenders who lived under the Julia Little Causeway in
Miami, where residency restrictions left them no other choices. See Charles McGrath, A
Novelist Bypasses the Middle to Seek Out the Margins, N.Y. TIMES, Oct. 14, 2011, at Cl.
4. See, e.g., Amy Meek, Street Vendors, Taxicabs, and Exclusion Zones: The Impact
of Collateral Consequences of Criminal Convictions at the Local Level, 75 OHIO ST. L.J. 1,
23-24 (2014).
5. See, e.g., Matt Mellema, Not Wanted: Sex Offenders, SLATE MAGAZINE (Aug. 14,
2014),
FRIGHTENING & HIGH
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.” 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! 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
http://www.slate.com/articles/news and-politics/jurisprudence/2014/08/several-states ba
n-peoplein the sex offender registry from a bizarre list.html.
6. State v. Seering, 701 N.W.2d 655, 664 (Iowa 2005).
7. Id. at 665.
8. State v. Mossman, 281 P.3d 153, 160 (Kan. 2012).
9. Id. at 157, 161.
10. Id. at 160.
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498 CONSTITUTIONAL COMMENTARY [Vol. 30:495
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” 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.”
That article has this sentence: “Most untreated sex offenders released
from prison go on to commit more offenses-indeed, as many as 80%
do.” 3 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.” 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.
11. While the Practitioner’s Guide is a publication of the Justice Department, the
Preface notes that its contents present the views “of the authors and do not necessarily
represent the official position or policies of the U.S. Department of Justice,” a distinction
lost to readers of the Court’s opinion.
12. Robert E. Freeman-Longo & R. Wall, Changing a Lifetime of Sexual Crime,
PSYCHOLOGY TODAY, Mar. 1986, at 58. Freeman-Longo is the author described in the rest
of this paragraph. Wall, the second author, is identified in the article as a therapist in a
treatment program Freeman-Longo directed; no further information about him came up
in a Google search.
13. Id. at 64.
14. The modem understandinp of the relevant rule on expert testimony, Federal
Rules of Evidence 702, is explained in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.
579 (1993), and the cases following upon it. The Psychology Today article does not indicate
the author’s training, but a Google search found that his only professional degree is a
Master of Rehabilitation Counseling. His online CV indicates no academic or research
appointments at any institution, but does list him as the second author in a 1982 article in
the iournal Crime and Delinquencv: Undetected Recidivism Amonz Rapists and Child
Molesters, 28 CRIME AND DELINO. 450. The article reported what some incarcerated men
said when asked if they had previously committed a sexual assault. The sample was men
imprisoned in a maximum security Connecticut institution, or committed to a secured
Florida treatment center for sexual offenders, who agreed to answer the questions. Most
already had multiple convictions for rape or child molestation. The answers Oiven by this
small convenience sample of high-risk offenders tells one very little about the recidivism
rate of sex offenders in general, even assuming the answers were truthful and accurate.
Indeed, perhaps ironically, given the use the Court made of his statement, the author has
elsewhere expressed the view that current registration laws “may do more harm than
good” because, among other things, they apply to many people who are low-risk and often
burden efforts at rehabilitation. Robert E. Freeman-Longo. Revisiting Megan’s Law and
Sex Offender Registration: Prevention or Problem, in SEXUAL VIOLENCE: POLICIES,
PRACTICES, AND CHALLENGES IN THE UNITED STATES AND CANADA (James Hodgson
& Debra Kelley, eds., 2001). It appears the author has in recent years moved from
traditional counsellinp to providing biofeedback services under the name Serendipity
Healing Arts; see SERENDIPITY HEALING ARTS, http://roblongo.com/index.php (last
visited Aug. 26, 2015).
2015] FRIGHTENING & HIGH
So the evidence for McKune’s claim that offenders have high reoffense
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. 5
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”; “[tihey are the most likely to
reoffend”; and “[tihey 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.”” The California Supreme
Court’s citation attributed the same language to “a report by the
United States Department of Justice.” The language has also
15. The Solicitor General was complicit in urging the Court toward this conclusion
with the argument that “[t]he absence of ready and reasonable alternatives for reducing
recidivism among convicted sexual offenders bolsters the constitutionality of [Kansas’s
Sexual Abuse Treatment Program I.” Amicus Brief of the United States at 24, McKune v.
Lile, 536 N.W.2d 24 (2002) (No. 00-1187).
16. The statement was in the voter’s pamphlet explanation of the law. See People v.
Aguon, No. D053875, 2009 Cal. App. Unpub. LEXIS 9836 at *37, 39 (Cal. Ct. App. filed
Dec. 14, 2009). The initiative made changes to various provisions of the California law; the
key changes are summarized in People v. Mosley, 603 Cal. 4th 1044,1063-64,344 P.3d 788,
185 Cal. Rptr. 3d 251 (2015). There is some confusion about the law’s actual effect. The
residency restrictions have historically been applied to those on parole from a state sex
offense, but not to other registrants, but the language is broader and in Mosley the
California Supreme Court recently declined to decide its scope. In a companion case, the
California Supreme Court found the residency restrictions unconstitutional as applied to
parolees in San Diego County, In re Taylor, 60 Cal. 4th 1019, 343 P.3d 867, 184 Cal. Rptr.
3d 682 (2015). Jessica’s Law also requires all registrants to wear GPS devices so that their
whereabouts can be continuously monitored by state authorities. The scope of this
requirement has not been contested, but at the moment California enforces it against
current parolees only.
17. The California opinion, in rejecting an offender’s claim that he was improperly
placed on the registry and made potentially subject to the residency restrictions, explains
the residency restrictions as “relatively modern attempts to address, by means short of
secure confinement, the persistent problem of recidivism among sex offenders,” and then
in footnote 10 quotes the initiative language, noting that it “[relies] on a report by the
United States Department of Justice.” People v. Mosley, 60 Cal. 4th 1044, 344 P.3d 788,
185 Cal. Rptr. 3d 251 (2015).
500 CONSTITUTIONAL COMMENTARY [Vol. 30:495
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.9 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.’ The
Solicitor General’s representation of this statement as a Justice
Department conclusion about the nature of sex offenders was at best
irresponsible.
So what is the re-offense rate for those convicted of a sex offense?
One cannot calculate it without first defining “re-offense,” without
specifying the time period to employ, and without considering whether
one needs to distinguish among different groups of offenders said to
have committed a “sex offense.” We consider these points in turn.
The right definition of re-offense depends on what we want to
know: is it the proportion of released offenders who commit a crime of
any kind, or a serious crime of any kind, or a sex crime (of any degree)?
If the purpose of the sex offender registry the Court addressed in Smith
18. The language is quoted in several laws in Wisconsin and Michigan. See Tamara
Rice Lave, The Iconic Child Molester: What We Believe and Why We Believe It 55-56
(Apr. 15, 2008) (unpublished manuscript), available at http://papers.ssm.com
/sol3/papers.cfm?abstract id= 118554.
19. “Contents of this document do not necessarily reflect the views or policies of the
Bureau of Justice Statistics or the U.S. Department of Justice.” Bureau of Justice Statistics,
National Conference on Sex Offender Registries, Proceedings of a BJS/SEARCH
Conference, April 1998, NCJ-168965, at p. ii.
20. Her precise words, as set forth in the conference proceedings: “Sex offenders are
a very unique type of criminal. I like to say they have three very unique characteristics:
They are the least likely to be cured; they are the most likely to reoffend; and they prey on
the most innocent members of our society.” Id. at pp. 92-93. The politician was Texas state
senator Florence Shapiro. Shapiro was a schoolteacher. When she retired from the Texas
State Senate in 2013 she was quoted as saying “her proudest achievement came in 1995
when she introduced a set of bills called Ashley’s Laws, which are designed to protect
children from sexual predators.” Matthew Watkins, Retiring Plano Legislator Florence
Shapiro Plans To Continue Community Work, THE DALLAS MORNING NEWS (Jan. 5,
2013), http://www.dallasnews.com/news/community-news/collin-county/headlines/20130
105-retiring-plano-legislator-plans-to-continue-community-work.ece. A researcher who
asked Shapiro in 2007 for the basis of her “least likely/most likely” statement was promised
an answer by her staff, but never received one. Lave, supra note 18 at 55.
FRIGHTENING & HIGH
is to aid the police in investigating sex offenses, or warn the public
about persons thought likely to commit them, then we want to know
the rate at which those convicted of a sex offense commit another one.
That’s quite different than the rate at which they commit any act that
returns them to prison. The California Corrections Department
recently examined cases of sex offender registrants who are returned
to prison, and found that in 92% of the cases the reason was a parole
violation, which is generally something that is not a crime for anyone
who is not on parole-things like going to a bar or visiting a friend
who’s also an ex-felon. Less than 1% of those re-incarcerated had
committed a new sex offense.2′
The time period we ask about of course also matters: As one
lengthens the follow-up period, one would expect to find more reoffenses.
So the most cautious measure would ask whether an offender
ever commits another sex offense. But answering that question would
require following offenders until their death. Of course, a study limited
to deceased offenders would necessarily exclude most released in
recent decades. Long-term follow-up studies are available, however,
and a recent meta-analysis by a leading scholar in the area, Karl
Hanson, combines the data from 21 studies that followed offenders for
an average of 8.2 years, and for as long as 31.22 Nearly 8,000 offenders
were followed, overall. The use of a meta-analysis to combine the data
from all these long-term studies provides more confident projections of
long-term re-offense rates. Sixteen of the 21 studies were done on
offenders in other western countries (most often, Canada) where
sentences are typically shorter than in the U.S., and released offenders
are not subject to American-style offender registries.23 The 21 studies
included in this meta-analysis examined different populations of
offenders; one might expect the modal offender in some studies to
present a higher risk of re-offense than the modal offender in others.
21. CALIF. DEPT. OF CORRECTIONS AND REHABILITATION, 2014 OUTCOME
EVALUATION REPORT, 30 (July 2015), available at http://www.cdcr.ca.gov/Adult
-ResearchBranch/ResearchDocuments/2014_Outcome Evaluation-Report__7-6-
2015.pdf. The exact rate was 0.8%. Another 2% of the cases involved violation of the sex
offender registry rules, such as failing to update registry information on schedule, while
the remaining 5.3% of those returned to prison committed a new offense that was not a
sex crime.
22. R. Karl Hanson, Andrew J. R. Harris, Leslie Helmus, and David Thornton, High-
Risk Sex Offenders May Not Be High Risk Forever, 29 (15) J. OF INTERPERSONAL
VIOLENCE 2792, 2792-813 (2014). The median year of release was 1996; the release year
ranged from 1957 to 2007.
23. Ten of the 21 studies involved Canadian offenders. For a comparison of Canadian
and American laws, discussing why Canada adopted a much less aggressive approach to
sex offenders, see Michael Petrunik, The Hare and Tortoise: Dangerousness and Sex
Offender Policy in the United States and Canada, 45 CANADIAN J. CRIMINOLOGY & CRIM.
JUST. 43 (2003).
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502 CONSTITUTIONAL COMMENTARY [Vol. 30:495
But having such a variety of offenders is another advantage. The
authors were able to assess offender risk levels using a well-established
actuarial measure,” the Static 99-R, 5 to classify each of the individual
offenders in all 21 studies as low, medium, or high risk.
Consider first the high-risk offenders in this study. Nearly 20% of
them committed26 a new sex offense within five years of release, and
32% (an additional 12%) did so within 15 years. But high-risk
offenders who hadn’t committed a new sex offense within fifteen years
of their release rarely did later. Indeed, none of the high-risk offenders
who were offense-free after 16 years committed a sex offense
thereafter.27 This point is important because most people are typically
put on registries for decades, and often for life. Being offense-free for
twenty years, or more, will not get them removed even though this
history tells us the chance of their committing a new offense is very
small. Some context can help here. One recent study found that about
3% of felons with no known history of sex offenses commit one within
24. In clinical judgments a professional combines or processes information about the
person in his or her head, rendering an intuitive assessment said to be based on training
and experience. Actuarial judgments, by contrast, are based entirely on empirically
established relations between data and the condition or event of interest. The relationship
can be set out in a table or formula. A life insurance agent uses the actuarial method when
he assesses life expectancy, or the likelihood of causing an automobile accident, by
entering data into a formula, or consulting tables and charts that relate the data to the
event to be predicted. The nature of the actuarial method thus encourages predictions
based on objective assessable facts that can be summarized numerically. The agent
employing a clinical method might look at the same data, but might consider other factors
as well, and would in any event assess risk intuitively rather than by reference to a formula
or table. Robyn M. Dawes, David Faust, and Paul E. Meehl, Clinical versus Actuarial
Judgment, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 716,
716 (Thomas Gilovich, Dale Griffin & Daniel Kahneman, eds., 2002). The psychological
literature has repeatedly shown that actuarial judgments yield better predictions of future
behavior than do clinical judgments. Id. A recent Canadian study showed that general rule
applied (as one would expect) in the context of predicting criminal recidivism in general,
and sexual re-offense in particular. The study allowed assessors to use their professional
judgment to adjust the risk level score obtained from a commonly used actuarial measure,
and compared the predictive accuracy of their adjusted rating to the unadjusted actuarial
score. The assessor adjustments made the re-offense predictions less accurate, largely
because they mistakenly predicted a higher chance of re-offense than was in fact the case.
J. Stephen Wormith, Sarah Hogg, & Lina Guzzo, The Predictive Validity of a General
Risk/Needs Assessment Inventory on Sexual Offender Recidivism and an Exploration of the
Professional Override, 39 CRIM. JUST. AND BEHAV. 1511,1529-32 (2012).
25. See R. Karl Hanson, Alyson Lunetta, Amy Phenix, Janet Neeley & Doug
Epperson, The Field Validity of Static-99/R Sex Offender Risk Assessment Tool in
California, 1 J. OF THREAT ASSESSMENT AND MGMT. 102 (2014).
26. What constitutes having “committed” a new offense depends on the criterion
used in the individual study. Eleven of the 21 studies logged a new offense for any offender
who was charged; the other ten required a new conviction. Hanson et al., supra note 22.
27. There were 126 high-risk offenders followed after 17 years who had not yet reoffended;
61 of them were followed for at least five additional years and none re-offended.
Hanson et al., supra note 25, at n.12.
2015] FRIGHTENING & HIGH
4.5 years of their release. Of course, they are not on the sex offender
registry during their release period, even though the chance of their
committing a sex offense is higher than the chance of a new sex offense
by a high-risk sex offender who has been offense-free for fifteen years.
Indeed, it’s mistaken to think of anyone who’s been offense-free
for fifteen years as high-risk. At the time of their release we cannot tell
which high-risk offenders will be among the two-thirds who won’t reoffend,
but that is revealed over time. Those who haven’t re-offended
after fifteen years are not high-risk for doing so, regardless of their
offense or their initial risk assessment.29 One cannot accurately assess
an individual’s risk of committing an offense in the future if one ignores
what they have done-and not done-for the last fifteen, twenty, or
28. Wormith et al., supra note 24. This study followed 1,905 sex offenders, and 24,545
nonsexual offenders, who were released in Ontario, Canada, during 2004. The mean
follow-up period for both groups was 4.5 years, with a standard deviation of 106 days. 3.73
percent of the sex offenders (97% male), committed another sex offense during the followup
period; 3.17 percent of the nonsexual offenders (80.5% male) did so. See Wormith et
al., supra note 23, at 1521 tbl. 1. The difference between these two percentages was not
statistically significant. There was also no difference between the groups in rate of nonsexual
violent offenses. Id.
29. Another statement in Smith v. Doe (“Empirical research on child molesters, for
instance, has shown that ‘[c]ontrary to conventional wisdom, most reoffenses do not occur
within the first several years after release, but may occur as late as 20 years following
release,” 538 U.S. at 104) is sometimes cited for the claim that sex offenders remain at high
risk of re-offending for life. Here Smith cites Robert A. Prentky, Raymond A. Knight, and
Austin F.S. Lee, Child Sexual Molestation: Research Issues, National Institute of Justice
Research Report, NCJ 163390 (1997). But the more complete published version of this
study, Robert A. Prentky, Austin E. S. Lee, Raymond A. Knight, and David Cerce,
Recidivism Rates Among Child Molesters and Rapists: A Methodological Analysis, 21 L. &
HUM. BEHAV. 635 (1997), reveals why it is inapt. The study’s offender sample consisted of
rapists and child molesters released from the Massachusetts Treatment Center for Sexually
Dangerous Persons, established in 1959 “for the purpose of evaluating and treating
individuals convicted of repetitive and/or aggressive sexual offenses.” Id. at 637. As
Prentky and his coauthors themselves observe, “Sexual offenders sampled from general
criminal populations, from offenders committed to a state hospital, and from a maximum
security psychiatric hospital, are likely to differ in ways that would affect their recidivism
rates and make cross-sample comparisons difficult.” Id. at 636. The data in this older study
are also difficult to interpret because we aren’t given the number of offenders followed for
any given length of time. We are told, however, that the total sample of offenders convicted
of child molestation was just 115. Clearly, the subset they were able to follow for ten or
fifteen years was much smaller, but we do not know how much smaller because they do
not provide that number. We do know that the re-offense rate from a sample of just ten or
twenty offenders would be too small to be meaningful. By contrast, the 2014 Hanson study
described in the text provides complete information on the 7,740 offenders it followed.
Prentky himself (with coauthors) recently reviewed studies on the effectiveness of offender
treatment programs, in a book evaluating research on sex offender recidivism, and found
treatment effects were small or absent. But they explain that one reason why treatment
does not reduce re-offense rates very much is that the rates for control groups of untreated
offenders is already quite low. Indeed, they found rates that were similar to those found in
the Hanson study. ROBERT PRENTKY, HOWARD BARBAREE, AND ERIC JANUS, SEXUAL
PREDATORS: SOCIETY, RISK, AND THE LAW 243-244 (2015).
504 CONSTITUTIONAL COMMENTARY [Vol. 30:495
twenty-five years in the past. Yet that is exactly what sex offender
registries do for large groups of people listed on them.
And what about those who were not classified high-risk in the first
place? About 97.5% of the low-risk offenders were offense-free after
five years; about 95% were still offense-free after 15 years.30 Thus, a
simple actuarial test identifies a large group of sex offenders whom we
know are, from the outset, less likely to commit a sex offense after
release than are released felons with no sex offense history (who of
course are not on the registry). What about the chance of a sex offender
committing some other serious crime? Other studies find that released
sex offenders are less likely to commit a new felony of any kind, after
release, than are other released felons.31
People may assume that most registrants committed violent rapes
or molested children, but they would be wrong. State laws require
registration of a teenager who had consensual sex with another
teenager, of people who possessed erotic images of anyone under 18
but had no history of any contact offense, and even, depending on the
state, someone convicted of public urination.3 2 A Justice Department
study concluded that more than a quarter of all sex offenders
committed their offense when they were themselves a minor.33 If the
registry’s main purpose is to let us monitor and warn people about
those who committed violent, coercive, or exploitative contact sex
offenses, we dilute its potential usefulness when we fill it up with people
who never did any of those things.
Or, people who once did but are very unlikely to do so again
because it’s been many years since they committed any crime. The
respondents in Smith who challenged the Alaska registry were
classified as “aggravated” sex offenders, required under Alaska law to
register four times a year for life, because they had been pled nolo
30. These figures are all taken from Table 2 of Hanson et al., supra note 22. The high
risk group was 26% of the entire sample of 7,740 offenders; the low risk group was 11.5%.
31. Id. at p. 2. While 43% of released sex offenders were rearrested for some crime
within three years of release, 68% of the released non-sex offenders were, and a higher
proportion of them were charged with a felony (84%) than was true of the rearrested sex
offenders (75%).
32. Chanakya Sethi, The Ridiculous Laws That Put People on the Sex Offender List,
SLATE MAGAZINE (Aug. 12, 2014, 11:41 AM), http://www.slate.comlarticles/news and
politics/jurisprudence/2014/08/mapped sex offender registry laws on statutory-rape-p
ublic urination and.html.
33. David Finkelhor, Richard Ormrod & Mark Chaffin, Juveniles Who Commit Sex
Offenses Against Minors, OFF. OF JUV. JUST. & DELINQ. PREVENTION, JUV. JUST.
BULLETIN 1, 1 (Dec. 2009), https://www.ncjrs.gov/pdffilesl/ojjdp/227763.pdf. Juveniles
account for 36% of all sex offenders with juvenile victims. Id.
FRIGHTENING & HIGH
contendere in 1984 to sexual contact with minors.34 They served their
sentences and were released in 1990. One had completed a two-year
post-release treatment program. The other had remarried after release
and been granted custody of his daughter, the court having concluded
he had been rehabilitated. (Psychiatric evaluations found he had “a
very low risk of re-offending” and was “not a pedophile.”) Neither had
re-offended in the twelve years since release, a fact that alone predicts
a re-offense rate below 5% .5 Alaska posts the address and place of
employment of all registrants for public viewing in print or electronic
form, so that it can be used by “any person” and “for any purpose., 36
Alaska’s registry rules are milder than some. California’s and Florida’s
registries, for example, make no distinction among sex offenses;
lifetime registration is required for all. A 14-year old in Florida who
had consensual intimate contact with his 13-year old girlfriend would
have to register for life.37
The Pennsylvania Supreme Court has recently held that treating
everyone convicted of a sex offense as a likely re-offender, when many
are not, violates the constitutional guarantees of Due Process. In J.B. 8
it considered changes to the Pennsylvania registry law that
automatically placed juveniles on the offender registry for 25 years if
they committed a rape or “aggravated indecent assault” when over
14.39 The rationale for the registry law was the legislative finding that
“Sexual offenders pose a high risk of committing additional sexual
offenses and protection of the public from this type of offender is a
paramount governmental interest.” The court objected that the
affected juveniles were effectively subject to an “irrebuttable
presumption” that they posed a high risk of re-offense even though the
presumption is in fact “not universally true.”
The effect of registration was one key to the court’s holding that
this misclassification has constitutional significance. The plaintiffs had
argued that registration “impedes a child’s pathway to a normal
productive life through continuously reinforcing the unlikely
supposition that the youth has ‘a high risk of committing additional
sexual offenses,”‘ creating “difficulty obtaining housing, employment,
34. The factual information in this paragraph about the offenders, and the provisions
of Alaska law then in effect, is taken from the Ninth Circuit opinion that the Supreme
Court reversed. Doe v. Otte, 259 F.3d 979, 990 (9th Cir. 2001).
35. Hanson, et al., supra note 22.
36. The Ninth Circuit opinion that the Supreme Court reversed in Smith, Doe v. Otte,
259 F.3d 979 (9th Cir. 2001) described Alaska Admin. Code fit. 13, § 09.050(a) (2000) as then
containing these provisions.
37. Sethi, supra note 32.
38. In the Interest of J.B., 107 A.3d 1 (Pa. 2014).
39. Id. at 12.
2015]
506 CONSTITUTIONAL COMMENTARY [Vol. 30:495
and schooling” as well as “depression.” 4 Imposing these burdens on
the plaintiffs unconstitutionally denied them Due Process, the court
concluded, because individual offenders were allowed no meaningful
opportunity to show the presumption of high risk was factually wrong
in their case. Because good individualized measures of the likelihood
of re-offending are available, the state has no need to employ, and thus
endorse, global stereotypes that registered sex offenders are
particularly dangerous, when these stereotypes have no basis in fact.
Registration requirements “premised upon the presumption that all
sexual offenders pose a high risk of recidivating… impinge upon
juvenile offenders’ fundamental right to reputation as protected under
the Pennsylvania Constitution.”,41
The California Supreme Court used different labels but a similar
logic when it held this year that it was unconstitutionally irrational to
automatically subject every sex offender parolee in San Diego County
to residency restrictions that impeded their rehabilitation and left many
of them with no place to live.42 Once again, the problem with the statute
was its application to every sex offender, without regard to their
individual circumstances including an individualized assessment of
each offender’s risk of re-offense. The court noted that parole officers
have general supervisory authority over parolees that allows them to
impose restrictions on their residence that are reasonably related to the
particular parolee’s situation. So the court allowed customized
restrictions logically connected to the individual offender’s situation,
but not “one size fits all” restrictions imposed on all offenders.
The logic of these decisions offers hope for a wider judicial
rationalization of the rules on sex offender registries and the life
restrictions that typically accompany them. To realize that hope, one
must apply the principle common to the Pennsylvania and California
decisions to a correct understanding of the facts. The principle is that
concerns about public safety cannot justify policies that impose serious
burdens on entire categories of individuals when many of them actually
present little risk, at least when more accurate assessment criteria
employing established actuarial measures, and the simple passage of
time, could easily be employed instead. The burdens imposed by
registration and all the consequences that follows from it demand
40. Id. at 33-34.
41. Id. at 42-43. The Pennsylvania Supreme Court is not alone in its concern about
the effect of registration on juveniles. Two years before, the Ohio Supreme Court held that
imposing lifetime registration on juveniles constituted “cruel and unusual punishment”. In
re C.P., 967 N.E.2d 729, 749 (Ohio 2012). Treating required registration as punishment
accurately captures its impact on the registrant, and triggers additional constitutional
protections, but differs from the position taken by the U.S. Supreme Court in Smith.
42. In re Taylor, 60 Cal. 4th 1019, 343 P.3d 867, 184 Cal. Rptr. 3d 682 (2015).
FRIGHTENING & HIGH
justifications grounded on more nuanced risk assessments than those
the registration laws currently employ. The simple fact is that the risk
level, for nearly everyone on the registry, is nowhere near the
“frightening and high” rate assumed by Smith and McKune and all the
later decisions that rely on them.
But while the principles endorsed by these recent opinions offer
hope, the Pennsylvania opinion also illustrates the difficulty of getting
courts to understand the facts well enough to apply them properly. The
court held that the burdens of registration on juveniles could not be
justified because of their lower re-offense rate: “While adult sexual
offenders have a high likelihood of reoffense, juvenile sexual offenders
exhibit low levels of recidivism (between 2-7%), which are
indistinguishable from the recidivism rates for non-sexual juvenile
offenders, who are not subject to SORNA registration.”43 But one can
see that the court’s comparison was infected by the very same error it
condemned when it compares juveniles to all adults, making no
distinction among adult registrants. The Hanson study finds the reoffense
rate for low and moderate-risk offenders, who probably
account for most adults on the registry, is within the same 2-7% range
the court attributes to juveniles. And of course, the re-offense rate
then declines, for all registrants, with each year after release that they
remain offense-free. Any state that routinely imposes 25-year
registration requirements on adult offenders has a registry full of
people who have gone ten or more years with no new offense, for
whom the average likelihood of re-offense is well below 7%. The
problem is worse in states like California and Florida that put all
offenders on the registry for life.
Writing on a different subject entirely, Eula Biss recently
observed:
Risk perception may not be about quantifiable risk so much as
it is about immeasurable fear. Our fears are informed by
history and economics, by social power and stigma, by myth
and nightmares. And as with other strongly held beliefs, our
43. In the Interest of J.B., 107 A.3d at 17. SORNA refers to the Sex Offender
Registration and Notification Act, which is Title I of the Adam Walsh Child Protection
and Safety Act of 2006 (Public Law 109-248). SORNA sets out federal standards for sex
offender registration and notification. Pennsylvania was one of seventeen states meeting
these requirements; see the compilation at SEX OFFENDER REGISTRATION AND
NOTIFICATION ACt, http://www.smart.gov/sorna.htm (last visited Oct. 3,2015).
44. If one examines the sources the Pennsylvania court relies on for its conclusion
that the re-offense rate for juveniles is 2 to 7 percent, one finds that it is a 5-year re-offense
rate. Table 2 of the Hanson study shows a 5-year re-offense rate of 2.2% for low-risk sex
offenders, and 6.7% for moderate-risk offenders. These two groups together account for
74.2% of Hanson’s sample of 7,740 offenders. Hanson, et al., supra note 22, at 2802.
2015]
508 CONSTITUTIONAL COMMENTARY [Vol. 30:495
fears are dear to us. When we encounter information that
contradicts our beliefs, we tend to doubt the information, not
ourselves. 45
The label “sex offender” triggers fear, and disgust as well. Both
responses breed beliefs that do not yield easily to facts. That’s why even
those politicians now urging criminal justice reforms conspicuously
omit mentioning sex offenses when they argue for less punitive policies
that would facilitate the offenders’ reintegration into civil society.’
Unfortunately, the Supreme Court has fed the fear. It’s become the “go
to” source that courts and politicians rely upon for “facts” about sex
offender recidivism rates that aren’t true. Its endorsement has
transformed random opinions by self-interested nonexperts into
definitive studies offered to justify law and policy, while real studies by
real scientists go unnoticed. The Court’s casual approach to the facts of
sex offender re-offense rates is far more frightening than the rates
themselves, and it’s high time for correction. Perhaps there’s now hope
it may soon happen.
45. EULA Biss, ON IMMUNITY: AN INOCULATION (2014), as quoted in Jerome
Groopman, There’s No Way Out of It!, NEW YORK REVIEW OF BOOKS, Mar. 5,2015, at 4.
Biss (and Groopman) were writing about parents’ irrational fears of inoculating their
children.
46. See Carl Hulse, Unlikely Cause Unites the Left and the Right. Justice Reform, N.Y.
TIMES, Feb. 19,2015, at Al.

4 comments for ““FRIGHTENING AND HIGH”: THE SUPREME COURT’S CRUCIAL MISTAKE ABOUT SEX CRIME STATISTICS

  1. Steve Kim
    July 26, 2016 at 7:33 am

    ‘Frightening and High’ is one of the best written pieces that has ever been done on this subject. Everyone should read it–especially judges!

    • July 30, 2016 at 7:44 pm

      I met and talked with Professor and Tara Ellman at the International Megan’s Law hearing this past week. Very nice folks and he sent me a case where the guy got 200 years as he was charged for each child pornography image on his computer.

  2. Frank
    July 29, 2016 at 10:58 pm

    Yes, the article is very informative.
    Most families involved in any way, are convinced that the Registration Laws are punitive.
    What was originally conceived as a way for law enforcement to monitor the released offender,
    has morphed into a punishment nearing that of Nazi Germany’s treatment of the Jews.
    What jumped out at me is near the very end of this piece.

    “The Court’s casual approach to the facts of
    sex offender re-offense rates is far more frightening than the rates
    themselves, and it’s high time for correction. Perhaps there’s now hope
    it may soon happen.”

    Frank

  3. nvrsol help
    September 12, 2016 at 8:18 am

    It begs the question as to why this type of rhetoric (“Frightening and High”) is so easily overlooked and accepted in our society. Perhaps it is because of the sensationalized nature of some of the most infamous crimes being the meme for all sex crimes and all sex offenders. To counter this trend of ignoring the facts in favor of keeping the knee-jerk emotional response to all sex crimes alive needs to have a calm and rational approach restored in the courts. As evidenced in the recent Stanford rape scandal, emotions are running high but hopefully reason will prevail in the long haul.

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