The Lingering Impact of Justice Kennedy's Trumpesque Claim About Sex Offenders
Courts assume a "frightening and high risk of recidivism," based on an unsupported claim in Psychology Today.
Last week Robert Montgomery, a senior deputy attorney general at the North Carolina Department of Justice, seemed to have little success convincing the Supreme Court that his state's law banning sex offenders from social media is consistent with the First Amendment. But at least one statement Montgomery made in defense of the law went unchallenged, even though it has no empirical basis. "This Court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again," he said. "Even as late as 20 years from when they are released, they may recidivate."
As New York Times legal writer Adam Liptak notes, it is accurate to say the Supreme Court has assumed that sex offenders "have a high rate of recidivism and are very likely to do this again." But to say the Court has recognized as much implies the statement is true. It isn't, at least insofar as we can tell from the existing research.
In the 2002 case McKune v. Lile, the Supreme Court rejected a Kansas inmate's claim that punishing him for refusing to detail his history of sex crimes (possibly including offenses that had previously gone undetected) as part of a prison therapy program violated the Fifth Amendment's ban on compelled self-incrimination. Underlining the importance of the therapy program in the plurality opinion, Justice Anthony Kennedy said "the rate of recidivism of untreated offenders has been estimated to be as high as 80%," which he called "a frightening and high risk of recidivism." The following year, Kennedy wrote the majority opinion in Smith v. Doe, which upheld retroactive application of Alaska's registration requirements for sex offenders. Describing registration as a civil measure aimed at protecting public safety (as opposed to a punishment), Kennedy quoted himself, saying "the risk of recidivism posed by sex offenders is 'frightening and high.'"
As Ira Mark Ellman and Tara Ellman show in a 2015 Constitutional Commentary article, the original source for Kennedy's claim that sex offenders have recidivism rates "as high as 80%" was a 1986 Psychology Today article by a counselor who ran a treatment program at an Oregon prison and a therapist who worked for him. "Most untreated sex offenders released from prison go on to commit more offenses," they wrote, explaining the value of the work from which they earned their livelihoods. "Indeed, as many as 80% do." As Ellman and Ellman point out, that was "a bare assertion" with "no supporting reference."
Studies of actual sex offenders find much lower recidivism rates. I summarized some of that research in a 2011 Reason article:
"Though often thought of as the most persistent and dangerous criminals, sex offenders are among the least likely criminals to recidivate," write Florida Institute of Technology psychologist Timothy Fortney and three co-authors in a 2007 article published by the journal Sexual Offender Treatment. A 2003 Justice Department study of 9,700 sex offenders found that 5 percent were arrested for new sex crimes within three years of being released from prison. (By comparison, 23 percent of burglars were arrested for new burglaries, and 22 percent of people who had served time for nonsexual assault were arrested for new assaults.) Studies that cover longer periods find higher recidivism rates for sex offenders, but still nothing like those claimed by panic-promoting politicians. Two meta-analyses of studies involving a total of 29,000 sex offenders, published by the Journal of Consulting and Clinical Psychology in 1998 and 2005, found a recidivism rate of 14 percent after four to six years. A study of 4,700 sex offenders, published by Public Safety Canada in 2004, found that 24 percent were charged with a new sex crime over a period of 15 years.
Ellman and Ellman cite a subsequent study, a 2014 meta-analyis covering almost 8,000 sex offenders, that found a five-year recidivism rate of about 20 percent among "high-risk" offenders but less than 3 percent among the rest. The recidivism rate for the high-risk offenders rose to 32 percent after 15 years but remained flat thereafter, indicating that even offenders initially classified as "high risk" pose little or no continuing threat if they go 15 years without committing another sex crime (contrary to Montgomery's claim before the Supreme Court that a sex offender remains dangerous even after two crime-free decades). The 15-year recidivism rate for low-to-moderate-risk offenders was just 5 percent.
These studies do not tell the whole story, because not all crimes are reported. Montgomery, the lawyer defending North Carolina's law, emphasized that point during his oral argument last week. "You don't know how many actual offenses these sex offenders have committed," he told the Supreme Court. In treatment, he said, sex offenders often confess crimes that were never detected, "so there's much more crime committed by these offenders than ever gets reported."
Since confession of past crimes is required by treatment programs and viewed as a sign of cooperation and progress, such statements probably should be taken with a grain of salt. Still, it is fair to say that true recidivism rates are apt to diverge somewhat from estimates based on arrests. But that is a far cry from suggesting that the overall recidivism rate for sex offenders—a diverse group that includes not only rapists and child molesters but nonpredatory lawbreakers such as people who look at forbidden pictures and teenagers who have consensual sex with other teenagers—is anything remotely like 80 percent.
These numbers matter because fear of recidivism is at the heart of the harsh and sweeping policies aimed at sex offenders, including mandatory minimum sentences, indefinite civil confinement after prison, lifelong registration, residence and presence restrictions, occupational bans, and stigmatizing passports. The risk that sex offenders will commit new crimes is relevant not only in justifying these measures on policy grounds but in resolving constitutional issues such as whether registration and all the burdens associated with it should be viewed as punishment or as regulations promoting public safety. Ellman and Ellman found that Justice Kennedy's baseless assertion of "frightening and high" recidivism rates had been quoted "in 91 judicial opinions, as well as briefs in 101 cases."
Legislators make similar claims whenever they want to impose new restrictions on sex offenders. In 2005 Rep. Mark Foley (R-Fla.), later notorious for sending sexually suggestive email messages to teenaged pages, even outdid Kennedy's Trumpesque recidivism claim. "There is a 90 percent likelihood of recidivism for sexual crimes against children," he said. "Ninety percent. That is the standard. That is their record. That is the likelihood. Ninety percent."
There are some encouraging signs that courts are beginning to take a more skeptical view of such claims. Last year, when the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act violated the constitutional ban on retroactive punishment, it cited Justice Department data indicating that sex offenders "are actually less likely to recidivate than other sorts of criminals." In Does #1–5 v. Snyder, the appeals court faulted the state's lawyers for failing to present any data on recidivism and noted research suggesting that laws like Michigan's may "actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for registrants to get and keep a job, find housing, and reintegrate into their communities."
In a recent Boston College Law Review article, Melissa Hamilton describes that decision as "an example of the appropriate use of scientific studies in constitutional law" and cites subsequent cases that "provide hints of a sea change in constitutional decision-making, fueled by a new emphasis upon empirically-led analysis." So far that sea change has not hit the Supreme Court, where an unsupported, self-serving claim published in Psychology Today three decades ago continues to shape constitutional law.