In a case about registered sex offenders at the Supreme Court last week, lawyer Robert Montgomery told the Justices, “This court has recognized that they have a high rate of recidivism and are very likely to do this again.” Montgomery was defending a North Carolina law that bars sex offenders from using Facebook, Twitter and other social media services. The Supreme Court has said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase in a 2003 case 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. There is little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates, the New York Times reports.
The story behind the notion starts with a throwaway line in a magazine. Justice Anthony Kennedy’s opinion in the 2003 case, Smith v. Doe, cited one of his own opinions that said, “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent.” He cited a 1988 U.S. Justice Department guide. Only one source in that long guide claimed an 80 percent rate, and the guide said that number might be exaggerated. The source was a 1986 article in Psychology Today. In it, people who ran a counseling program said, “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” but it cited no evidence. “Unfortunately,” Melissa Hamilton wrote in The Boston College Law Review, “the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.”