Much of the destructive, extra-punishment punishment we inflict on sex offenders is due to the widely held belief that they’re more likely to re-offend than the perpetrators of other classes of crimes. This has been the main justification for the Supreme Court’s authorization of sex-offender registries and for holding sex offenders indefinitely after they’ve served their sentences. Lower courts have then cited those rulings to justify a host of other measures, from severe restrictions on where sex offenders can live to GPS monitoring of their every move.
The problem, as Adam Liptak writes at the New York Times, is that the claim just isn’t true.
Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders.
“This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.
The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.
But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.
The quote came from Justice Anthony M. Kennedy, and it claims that the recidivism rate for sex offenders is 80 percent. If true, that would indeed be “frightening and high.” But it isn’t true. At Slate, David Feige brings the data:
In the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent.
We’ve discussed this before here at The Watch, as well as other areas where the Supreme Court has relied on bad information in important rulings. And this is just a small slice of a much larger problem — the courts’ inability to reconcile the evolving nature of science with the criminal-justice system’s premium on precedent and finality.
There isn’t much sympathy out there for sex offenders. But if the public wants to prioritize retributive justice over all else and put every sex offender away for life after the first offense, then let’s have that debate. I wouldn’t favor that approach. But that at least is a much more honest discussion than how we’ve approached this issue for the past 30 years or so. What we’ve done instead is allowed sex offenders to be “released” from prison, but then made it impossible for them to live anything resembling normal lives. Casting them off and marginalizing them after they’re out, regardless of the nature of their crimes, isn’t just cruel; it doesn’t make society any safer, either. I haven’t seen data on this, but it seems likely that removing support networks, making it more difficult to solicit help, limiting what they can do to earn a living and even limiting their ability to attend religious services makes recidivism more likely, not less.
And that’s before we even get to the subject of this post — that all of these policies are based on a widely held assumption that all the available data say is utterly false.