My pal, David Feige, has a spectacular op-ed in the New York Times calling on the Supreme Court to correct one of the most egregious errors to find its way into their decisions and popular mythology.
This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans. Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.
In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.” The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.
The consequences have been draconian, with the overwhelming support of the public because, in part, of a shockingly false myth:
And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.” The problem is this: The 80 percent recidivism rate is an entirely invented number.
This isn’t to suggest that sex offenses aren’t serious and can’t be horrific. But to state that this myth, that once a sex offender, always a sex offender, and they can’t stop themselves, is pure hogwash. But the Supreme Court said so.
As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.
That article was written not by a scientist but by a treatment provider who claimed to be able to essentially cure sex offenders though innovative “aversive therapies” including electric shocks and pumping ammonia into offenders’ noses via nasal cannulas. The article offered no backup data, no scientific control group and no real way to fact-check any of the assertions made to promote the author’s program.
Somehow, this false stat found its way into then-Solicitor General Ted Olson’s brief, and from there into Justice Kennedy’s opinion in McKune v. Lile. There was only one problem: it was completely false. Yet, it has seeped into the public psyche as a reality despite the fact being almost entirely the opposite:
But in the 30 years since that Psychology Today article was published, there have been hundreds of evidence-based, scientific studies on the question of the recidivism rate for sex offenders. The results of those studies are astonishingly consistent: Convicted sex offenders have among the lowest rates of same-crime recidivism of any category of offender.
Nearly every study — including those by states as diverse as Alaska, Nebraska, Maine, New York and California — as well as an extremely broad one by the federal government that followed every offender released in the United States for three years, has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent. Needless to say, there is a tremendous difference between claiming that 80 percent of offenders will re-offend and that more than 95 percent of them won’t. And it is in that basic difference that the Supreme Court’s doctrine has done its most lasting damage.
Yet based on the mythology of the crazed sex offender who can’t control his irresistible urge to break into your house at night and rape your children, a bastardized jurisprudence has developed to rationalize such punitive burdens as Sex Offender Registries, as well as even more outrageous schemes to keep these animals from your bedroom window.
For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake. The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.
But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release. In the 24 years it has existed, not a single “patient” has ever been fully released. There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.
The lucky ones are allowed to leave therapeutic prison before they die, and are merely subject to the joys of the penile plethysmograph. While the myth can’t be entirely attributed to Justice Kennedy’s baseless adoption of a false recidivism statistic, it remains a “fact” upon which courts invariably rely in concluding that the problem of sex offender recidivism is so severe, so horrible, that it justifies extreme measures. Indeed, if courts were deciding the constitutionality of SORA and therapeutic imprisonment based on accurate recidivism rates, it would be difficult, if not impossible, to rationalize these outrages.
Feige calls on the Supremes to fix their mistake, to clean up the mess they made by their citing as fact a statistic that is utterly false. It’s bad enough that Justice Kennedy made the mistake in the first place. It’s worse still that this mistake has remained uncorrected since 2002. It can’t be allowed to continue any longer. It’s just not true.