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Frightening and High - Supreme Courts Crucial Mistake About Sex Crime Statistics, Ellman, 2015

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“Frightening and High”:
The Supreme Court’s Crucial Mistake About Sex Crime Statistics


Ira Mark Ellman
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

Tara Ellman
Consultant, Tempe, Arizona

This brief essay reveals that the sources relied upon by the Supreme Court
in Smith v. Doe, a heavily cited constitutional decision on sex offender registries,
in fact provide no support at all for the facts about sex offender re-offense rates
that the Court treats as central to its constitutional conclusions. This misreading
of the social science was abetted in part by the Solicitor General’s
misrepresentations in the amicus brief it filed in this case. The false “facts” stated
in the opinion have since been relied upon repeatedly by other courts in their own
constitutional decisions, thus infecting an entire field of law as well as policy
making by legislative bodies. Recent decisions by the Pennsylvania and
California supreme courts establish principles that would support major judicial
reforms of sex offender registries, if they were applied to the actual facts.

This paper is scheduled to appear in Constitutional Commentary during Fall, 2015.
Revised 8/11/15


It isn't what we don't know that gives us trouble, it's what we know that ain't so. 1

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, with an accompanying
loss of significant prison privileges, including the right to earn the minimum wage for his prison
work and send his earnings to his family.
In justifying its conclusion, Justice Kennedy, writing for the four-person 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 on this earlier language in
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 locationmonitoring ankle bracelets for life. These extreme measures were justified, the argument explained, by
sex offenders’ “very high recidivism rates”. 2
1. Often attributed to Will Rogers or to Mark Twain, but neither attribution appears to be documented. See, accessed August 3, 2015.
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


Residency restrictions like those in Jessica’s law are severe enough to exclude registrants from
most available housing in their community, preventing them from living with their families.3 Separate
“presence restrictions” in many communities bar registrants from using public libraries or enjoying
public parks with their families in some cities.4 Their registration formally excludes them from many
jobs,5 and as a practical 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 an offender and family who
lack financial resources”,6 rejected the offender’s constitutional challenge to them because “the risk of
recidivism posed by sex offenders is 'frightening and high”, as “numerous authorities have
acknowledged”.7 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.8 A Corrections Department psychologist testified that he had accepted
responsibility for his actions, displayed an "appropriate level of remorse", and was a low risk to reoffend.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

containing the law’s full text, see,
accessed August 3, 2015.
3. 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, 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, New York Times , October 14, 2011.
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 (2014).
5. See, e.g., Matt Mellema, Not Wanted: Sex Offenders, Slate Magazine, August 14, 2014, at
6. State v. Seering, 701 N.W.2d 655, 665 (Iowa 2005).
7. Id. at 664.
8. State v. Mossman, 281 P.3d 153, 160 (Kansas 2012).
9. Id. at 157, 161.
10. 160.


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 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 Guide11 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.12 That article
has this sentence: “Most untreated sex offenders released from prison go on to commit more offenses–
indeed, as many as 80% do.” 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.13 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. Freeman-Longo, R., & Wall, R. Changing a lifetime of sexual crime, 20 PSYCHOLOGY TODAY. 58-62
(1986). 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 treatment program Freeman-Longo directed; no further information about him came up
in a Google search.
13. 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, and found no academic or research appointments
at any institution. A Google Scholar search did find one article in a peer-reviewed journal with his name: he is the
second author on a 1982 publication, Undetected Recidivism among Rapists and Child Molesters, 28 Crime and
Delinquency 450. That article reported the results of a small convenience sample of men incarcerated for sexual
assault in a maximum security Connecticut prison, and men committed to a secured Florida treatment center for
sexual offenders. The results of this small non-random sample of high-risk offenders, most of whom already had
multiple convictions for rape or child molestation, tells one very little about the recidivism rate of sex offenders in
general. The modern understanding of the relevant rule, Federal Rules of Evidence 702, is explained in Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and the cases following upon it.


So the evidence for McKune’s claim that offenders have high re-offense 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.14
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"; "[t]hey are the most
likely to reoffend"; and "[t]hey 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”. 15 The California Supreme Court’s citation attributed the same
language to “a report by the United States Department of Justice”.16 The language has also appeared in
several local ordinances in the midwest.17 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
14. 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].” Amicus Brief of the United States at
15. The statement was in the voter’s pamphlet explanation of the law. See People v. Aguon, Calif App.
D053875, filed Feb. 14, 2009 (unpublished), at 37, 39. The initiative made changes to various provisions of the
California law; the key changes are summarized in People v. Mosley, 60 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
16. 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)
17. The language is also quoted in several laws in Wisconsin and Michigan. See Tamara Rice Lave, The
Iconic Child Molester: What We Believe and Why We Believe It, at p. 55. Available at


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.18 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
said19 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 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 88% of the cases the reason was a parole violation, which is generally something that
is not crime for anyone who is not on parole—things like going to a bar or visiting a friend who’s also an
ex-felon. Only 1.8% of those re-incarcerated had committed a new sex offense.20

18. “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.
19. What she actually said, 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.” The
Dallas Morning News, January 5, 2013, 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. Tamara Rice Lave, The Iconic Child Molester: What We Believe and Why We Believe It, at
p. 55. Available at
20. Calif. Dept. of Corrections And Rehabilitation, 2013 Outcome Evaluation Report (January 2014),
( at


The time period we ask about of course also matters: As one lengthens the follow-up period, one
would expect to find more re-offenses. 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 31.21 Nearly 8000 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.22 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. 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,23 the Static 99-R,24 to classify each of the individual offenders in all
21 studies as low, medium, and high risk.
page 26. Another 3% of the cases involve a violation of the sex offender registry rules, such as failing to update
registry information on schedule, while the remaining 7.3% of those returned to prison committed a new offense that
was not a sex crime.
21. R. Karl Hanson, Andrew J. R. Harris, Leslie Helmus, and David Thornton, High-Risk Sex Offenders
May Not Be High Risk Forever, Journal of Interpersonal Violence 2014, Vol. 29(15) 2792–2813. The median year
of release was 1996; the release year ranged from 1957 to 2007.
22. 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).
23. 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, Chapter 40 in HEURISTICS AND BIASES: THE PSYCHOLOGY OF
INTUITIVE JUDGMENT (Thomas Gilovich, Dale Griffin, and Daniel Kahneman, eds, 2002) at 476. 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 reoffense than was in fact the case. Wormith, Hogg, & Guzzo, The predictive validity of a general risk/needs
assessment inventory on sexual offender recidivism and an exploration of the professional override, 39 CRIMINAL


Consider first the high-risk offenders in this study. Nearly 20% of them committed25 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.26 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 4.5 years of their release.27 Of course, they aren’t 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 re-offend, but that is
revealed over time. Those who haven’t re-offended after fifteen years are not high-risk for doing so. 28
24. 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 JOURNAL OF THREAT ASSESSMENT AND
MANAGEMENT 102 (2014).
25. 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
26. There were 126 high-risk offenders followed after 17 years who had not yet re-offended; 61 of them
were followed for at least five additional years and none re-offended. Hanson, et al., supra n. 24, at footnote 12.
27. Wormith, J. S., Hogg, S., & Guzzo, L. The predictive validity of a general risk/needs assessment
inventory on sexual offender recidivism and an exploration of the professional override, 39 CRIMINAL JUSTICE AND
BEHAVIOR 1511 (2012). 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
follow-up period; 3.17 percent of the nonsexual offenders (80.5% male) did so. Table 1 at p. 1521. The difference
between these two percentages was not statistically significant. There was also no difference between the groups in
rate of non-sexual violent offenses. Id.
28. 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 105) 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
Law and Human Behavior 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, “[s]exual offenders sampled from general


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.29
Thus, a simple actuarial test identifies a large group of sex offenders whom we know from the outset are
less likely than other released felons with no sex offense history (who will never be on the registry) to
commit a sex offense after release. 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.30
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.31 A Justice
Department study concluded that more than a quarter of all sex offenders committed their offense when
they were themselves a minor.32 If the registry’s main purpose is to let us monitor and warn people

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 reoffense 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 243244 (2015).
29. These figures are all taken from Table 2 of Hanson, Harris, et al, n. 21 supra. The high risk group was
26% of the entire sample of 7,740 offenders; the low risk group was 11.5%.
30. 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%).
31. Chanakya Sethi, The Ridiculous Laws That Put People on the Sex Offender List, Slate Magazine, at
32. David Finkelhor, Richard Ormrod, and Mark Chaffin, Juveniles Who Commit Sex Offenses Against
Minors, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency


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 contendere in 1984 to sexual contact with minors. 33 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 is "not a
pedophile".) Neither had re-offended in the twelve years since release, a fact that alone predicts a reoffense rate below 5%.34 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.”35
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. That mean a California college
student convicted of public urination must register for life, as must a 14-year old in Florida who had
consensual intimate contact with his 13-year old girlfriend.36
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.37 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
14.38 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 “irrebutable 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

Prevention, Juvenile Justice Bulletin December 2009. Juveniles account for 36% of all sex offenders with juvenile
victims, id.
33. 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 (9th Cir.
34. Hanson, Harris, et. al., n. 21 supra.
35. 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 tit. 13, § 09.050(a) (2000) as then containing these provisions.
36. Sethi, supra n. 31.
37. In the Interest of J.B., 107 A.3d 1 (Pa. 2014).
38. Id. at 12.


housing, employment, and schooling” as well as “depression”.39 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.”40
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.41 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 reoffense. 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 justifications grounded on more nuanced risk assessments that 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.
39. Id. at 33-34.
40. Id. at 42-43. The Pennsylavania 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 (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.
41. In re Taylor, 60 Cal. 4th 1019, 343 P.3d 867, 184 Cal. Rptr. 3d 682 (2015).


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.”42 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
shows that the likelihood of re-offense for most adults on the registry is within the same 2-7% range the
court attributes to juveniles.43 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 fears are dear to us.
When we encounter information that contradicts our beliefs, we tend to doubt the
information, not ourselves.44
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. 45 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.

42. 107 A.3d at 17.
43. Examining the sources the Pennsylvania court relies on for the juvenile rate of 4 to 7 percent shows that
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 a 6.7% 5-year rate for moderate risk offenders. These two groups together account for 74.2% of
Hanson’s sample of 7,740 offenders.
44. Eula Biss, On Immunity: An Inoculation (2014), as quoted in Jerome Goopman, There’s No Way Out of
It!, New York Review of Books, March 5, 2015. Biss (and Goopman) were writing about parents’ irrational fears of
inoculating their children.
45. See Carl Hulse, Unlikely Cause Unites the Left and the Right: Justice Reform, New York Times,
February 19, 2015 at p. A1.