A Far Reaching SCOTUS Ruling Based On Anecdote, Not Data

Yesterday I wrote about the delusional world of the Trump administration. But delusion is not limited to Trump and his minions. A story in the New York Times shows that the Supreme Court has based a ruling that has led to a whole raft of new laws and lower court decisions on a study that does not exist.

In 2003, the Court ruled that Alaska’s sex offender registration law was constitutional. That ruling led to a whole raft of new laws around the country that limited the rights of convicted sex offenders even after they have served their time for the crimes committed. These include registration, limiting them from living near schools, restricting them from entering public parks, and now limiting their access to social media.

In writing the majority opinion in 2003, Anthony Kennedy stated “[t]he rate of recidivism of untreated offenders has been estimated to be as high as 80 percent”, citing a Justice Department document named “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender”. That document was a compendium of research studies on sex offenders and their recidivism. Many of the studies actually showed a recidivism rate in the single digits. The only report in the document that claimed the 80% recidivism rate was an article about a sex offender counseling program that was written for a general population psychology magazine and provided no scientific evidence for that claim. Yet that was the statistic that Kennedy glommed on to and cited in his opinion.

That citation in the Supreme Court decision has colored the perceptions and laws about sex offenders ever since. In fact, with laws restricting sex offenders’ social media access now being challenged in the Supreme Court, Kennedy’s statistic is being used by those defending those laws again.

Subsequent studies have shown that the recidivism rate for sex offenders is slightly higher than non-sex offenders but only around 5% and nowhere near the 80% level cited by Kennedy. There is another study that showing that, over a 20 year time span, a sex offender’s chance of committing another sex crime rises to around 25%. That is certainly significant and important to consider and may still be enough to warrant the original Supreme Court decision. But again, it is nowhere near 80%.

If it was any other group other than sex offenders, do we really thing that laws based on a myth would have survived for a decade and a half. But the reality is that sex offenders are pretty hard to defend so it takes a lot of courage to oppose these restrictive laws. And perhaps these laws are necessary. But it would be nice to base the need for them in reality rather than engage in another delusion.