In 2002, the very same year that Lester Packingham was arrested for having sex with his girlfriend, the Supreme Court first considered the constitutional implications of several obligations placed on the vast swath of people now required to register as sex offenders. In considering the restrictions, Justice Anthony Kennedy found that the state had a compelling interest in regulating sex offenders because the recidivism rate of untreated offenders “has been estimated to be as high as 80 percent.” According to Justice Kennedy, this “frightening and high” recidivism rate, justified conduct by the state that might otherwise fail constitutional muster.
The problem is this: The recidivism statistics the court cites are dead wrong as a matter of social scientific fact. In reality, sex offenders have among the lowest same-crime recidivism rates of any category of offender. Indeed, 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.
So how could the highest court in the land arrive at a conclusion so at odds with scientific reality? In 2015, Ira Ellman, a professor at the UC–Berkeley School of Law, uncovered the answer. Engaging in a bit of brilliant legal archeology, Ellman discovered that the 80 percent number came from an amicus brief submitted by the United States solicitor general’s office in McKune v. Lile, a case that was in turn cited in Smith v. Doe, a blockbuster decision that, for the first time, upheld the constitutionality of sex-offender registries.
And where did the government come up with their numbers? As it turns out, the solicitor’s brief in McKune cited a government manual that in turn cited a single article published in 1986 in Psychology Today, a mass-market magazine aimed at a lay audience. It was there that Ellman found this sentence: “Most untreated sex offenders released from prison go on to commit more offenses—indeed, as many as 80 percent do.” The article did not even pretend to be a scientific study. It offered no hard data, and its author was neither a scientist nor a professor, but rather a man with a degree in counseling who ran a program for sex offenders in an Oregon prison.
Despite the questionable provenance of the numbers, Justice Kennedy’s false declaration in Smith about the “frightening and high” recidivism rates has made its way into the heart of our sex-offender jurisprudence. Lower courts have cited it in nearly a hundred different judicial decisions, justifying everything from requiring offenders to live more than 1,000 feet from schools or playgrounds to banning them from entering any city, county, or state park. The language has seeped its way into the popular culture so completely, that the public’s unshakable sense of sex offenders is that they are compulsive sex addicts who will stop at nothing to gain access to our vulnerable children. And while that may describe a small number of predators, it is wildly misleading when applied to the huge number of people we currently list on our sex-offender registries.