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How the Supreme Court used a made-up statistic to expand sex offender registries

Justice Anthony Kennedy.
Justice Anthony Kennedy.
Chip Somodevilla/Getty Images

The Supreme Court is supposed to be the most respected and trusted judicial body in the US. It hands down decisions that affect hundreds of millions of Americans. And it's not easy for a case to work up to the highest court, much less get a hearing.

But what if the Supreme Court's decisions were occasionally based on a totally made-up statistic?

new essay and paper by Ira Ellman, a law professor at Arizona State University, suggests that happened not once, but twice, in two major decisions regarding sex offenders — McKune v. Lile and Smith v. Doe.

In 2002, the Supreme Court ruled that Kansas hadn't violated a prison inmate's Fifth Amendment protections against self-incrimination by forcing him to fill out a form for a treatment program for sex offenders. A year later, the court allowed Alaska to retroactively place sex offenders in a public sex offender registry.

Justice Anthony Kennedy cited the same claim in justifying these decisions: a statistic that suggested the recidivism rate of sex offenders was as high as 80 percent. In both cases, the figure was supposed to show that extraordinary measures against sex offenders were justified to protect the public from a group of people who were very likely to reoffend.

But Ellman found the statistic was essentially fabricated. The Supreme Court first cited a 1988 "Practitioner's Manual" for its decision, and the manual cited just one source — an article from Psychology Today — that claimed, "Most untreated sex offenders released from prison go on to commit more offenses–indeed, as many as 80% do." But there was little to nothing to support the assertion, Ellman found:

That sentence is a bare assertion with no supporting reference. Nor did its author have the scientific credentials needed too qualify at trial as an expert on recidivism. He was a counselor, not a scholar, and the article containing the sentence isn't 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.

In fact, other research on sex offenders shows they're actually less likely to commit any felony after release than other ex-inmates. Even sex offenders deemed "high-risk" aren't 80 percent likely to reoffend, according to Ellman's review of a recent meta-analysis by Karl Hanson, which combined data from 21 studies that followed nearly 8,000 offenders:

Nearly 20% of the high-risk offenders committed a new sex offense within five years of release, and an additional 12% did so during the next 10 years. But the 68% who hadn't committed a new sex offense fifteen years after release rarely did later. Indeed, none of the high-risk offenders who were offense-free after 16 years committed a sex offense thereafter.

Those reoffending rates — 20 percent over five years and 32 percent over 15 years — are still, in my view, quite bad. But they're a far cry from the 80 percent cited by the Supreme Court in its decisions. Yet the rulings have been used to justify putting thousands of people in sex offender registries, as lower courts cited the same statistic over and over to allow states to place sex offenders on public registries and government supervision — sometimes for life.

Many sex offenders don't fit the stereotypical view of sex offenders

A map of the rate of registered sex offenders per 1,000 people in each state.

Jishai Evers/Dadaviz

A lot of Americans might look at this Supreme Court flub and shrug, wondering why anyone should care about sex offenders' problems. It's an understandable position if you imagine most registered sex offenders to be violent, dangerous criminals who rape, sexually abuse, and sexually assault others.

But according to Ellman, that's not the case:

Sex offender registries include a lot of people who are low-risk from the outset: a teenager who had consensual sex with another teenager, people who possessed erotic images of anyone under 18 but never even attempted to commit any contact offense, and even, depending on the state, someone convicted of public urination. A Justice Department study found that more than a quarter of all sex offenders were minors at the time of their offense. People may assume the registry's purpose is to warn people about those who committed violent, coercive, or exploitative contact sex offenses, but they're in fact filled up with people who never did any of those things.

There are some dangerous, violent people in states' sex offender registries. But sometimes that's not the case. Yet those nonviolent offenders who are unlikely to reoffend are just as hurt by the Supreme Court's decision, based on a totally made-up statistic, as anyone else on the registries.