My week
In 2002, the Supreme Court decided McKune v. Lile. It involved a Kansas law which required sex offenders to undergo treatment, including polygraphs and admission of uncharged offenses, or be sent to a prison with less favorable conditions. By a 5-4 vote, the Court rejected Lile's argument that this violated his rights against self-incrimination.
But the opinion isn't remembered as a landmark case on Fifth Amendment law. Rather, it's remembered for Justice Kennedy's remarks about sex offenders. In his opinion, he wrote that "the rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%, whereas the rate of recidivism of untreated offenders has been estimated to be as high as 80%," and that the Kansas program allowed inmates "a basis to understand why they are being punished and to identify the traits that cause such a frightening and high risk of recidivism."
Those two quotes have served as the basis for much of the law on sex registration since that time. My BFF Lexis tells me that the phrase "frightening and high" appears in no fewer than 113 decisions since McKune, nine of them in Ohio. Most recently, it was used in State v. Blankenship to counter a constitutional challenge to a 21-year-old defendant's claim that imposing a 25-year period of sex registration on him for having a consensual sexual relationship with a 15-year-old violated the 8th Amendment's proscription against excessive punishment. The belief that sex offenders are much more likely than other offenders to recidivate has become a core belief in our society. There's only one problem.
It's bullshit.
In an interesting bit of legal archaeology, Law Professor Ira Ellman of Arizona State University dug deeper into Kennedy's comments. The only support for them cited by Kennedy was a paper published by Department of Justice in 1988, titled "A Practitioner's Guide to Treating the Incarcerated Male Sex Offender"; it had been included in the amicus brief supporting Kansas filed by the solicitor general.
The Practitioner's Guide, in turn, provided only a single source for the claim, a 1986 article in Psychology Today. That source, in turn, contains no supporting references for either the 80% or 15% figure; the author was a counselor, and he was not writing about recidivism statistics, but about a counseling program for sex offenders he conducted in an Oregon prison. As Ellman points out,
the evidence for McKune's claim that offenders have high reoffense 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.
It's one thing to say that an assertion is unsupported; it's another to say that it's wrong. But wrong it was, as study after study has demonstrated: the recidivism rate for sex offenders is around 3-5% after three years, less than that for most other crimes.
All of this is leading up to the reason I only did one post last week. I spent the time writing a brief on a case I have, where the defendant touched a woman's breast during a medical examination. (There's a bit more to it than that, so we'll not get into the guilt/innocence thing.) At any rate, he got convicted of sexual imposition, a third-degree misdemeanor, and got tagged with a 15-year period of sex registration.
I talked to my daughter about it. She makes the leaders of the #MeToo movement sound like Playboy bunnies, but even she thought that was excessive. Then again, I don't imagine I'll get very far with the argument, "Hey, even my kid thinks this is whack."
And I may not get very far with the ones I made. It's one thing to argue that the law is punitive, it's another to argue that registration is an excessive punishment. I've done a lot or research, and courts have rejected this argument on the basis of the "historical" approval of sex offender registration laws.
Of course, that approval is no more reality-based than Kennedy's comment was. The real problem with sex offender laws is not that they're based on a misconception about recidivism, it's that they don't do what they're supposed to do: there's no evidence that they work, and some to indicate they're actually counterproductive. That was the 6th Circuit's conclusion a couple years ago in Doe v. Snyder (discussed here).
But making the guy register for fifteen years is whack. We'll see if I can convince the 8th District of that, but it should be fun.
Which tells you all you need to know about my concept of "fun."
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