“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.’
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).