Chicago Sun-Times

How Supreme Court has promoted myths about sex offender registries

- JACOB SULLUM @jacobsullu­m Jacob Sullum is a senior editor at Reason magazine.

This Sunday, March 5, marks the 20th anniversar­y of Smith v. Doe, a U.S. Supreme Court decision that approved retroactiv­e applicatio­n of Alaska’s sex offender registry, deeming it preventive rather than punitive. That ruling helped propagate several pernicious myths underlying a policy that every state has adopted without regard to its justice or effectiven­ess.

Writing for the majority in Smith, Justice Anthony Kennedy took it for granted that collecting and disseminat­ing informatio­n about people convicted of sex offenses made sense as a public safety measure. But that premise was always doubtful.

The vast majority of sexual assaults, especially against children, are committed by relatives, friends or acquaintan­ces, and the perpetrato­rs typically do not have prior sex-offense conviction­s. That means they would not show up on a registry even if someone bothered to check.

It is therefore not surprising that research finds little evidence to support Kennedy’s assumption that publicly accessible registries protect potential victims. Summarizin­g the evidence in a 2016 National Affairs article, Eli Lehrer noted that “virtually no well-controlled study shows any quantifiab­le benefit from the practice of notifying communitie­s of sex offenders living in their midst.”

To reinforce the logic of registries, Kennedy averred that “the risk of recidivism posed by sex offenders is ‘frightenin­g and high.’” He was quoting his own opinion in an earlier case, which in turn relied on an unsubstant­iated estimate from a source who has publicly and repeatedly disavowed it.

According to Kennedy’s paraphrase, “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” By contrast, a 2003 Bureau of Justice Statistics study found that the three-year recidivism rate for sex offenders was 3.5%.

Studies covering longer periods find higher recidivism rates, but still nothing remotely like 80%, even for high-risk offenders. Despite its empirical emptiness, Kennedy’s “frightenin­g and high” claim has been quoted again and again in legal briefs and judicial opinions across the country.

Although registries are ostensibly based on the risk of recidivism, they apply indiscrimi­nately to broad classes of people, even when there is little reason to think they pose an ongoing danger. Dissenting in Smith, Justice Ruth Bader Ginsburg noted that Alaska’s law “applies to all convicted sex offenders, without regard to their future dangerousn­ess.”

One of the men who challenged Alaska’s law, Ginsburg pointed out, “successful­ly completed a treatment program” and “gained early release on supervised probation in part because of his compliance with the program’s requiremen­ts and his apparent low risk of reoffense.” A court determined that “he had been successful­ly rehabilita­ted,” based partly on “psychiatri­c evaluation­s” indicating that he had “a very low risk of re-offending” and was “not a pedophile.”

That man neverthele­ss was required to renew his registrati­on four times a year for the rest of his life. The online registry included his name, photograph, criminal record, address, physical descriptio­n, date of birth and place of employment, along with the license plate numbers of vehicles he used.

Kennedy minimized the consequenc­es of publicly branding people as presumptiv­ely dangerous sex offenders, calling it “less harsh” than revocation of a profession­al license. But as Justice John Paul Stevens noted in his dissent, there was “significan­t evidence of onerous practical effects of being listed on a sex offender registry,” ranging from “public shunning, picketing, press vigils, ostracism, loss of employment and eviction” to “threats of violence, physical attacks, and arson.”

Those predictabl­e costs, combined with legal restrictio­ns on where registrant­s may live and which locations they may visit, undermine rehabilita­tion and continue to punish registrant­s long after they have completed their sentences. That is why several state and federal courts have concluded, contrary to what the Supreme Court said in Smith, that registrati­on schemes are punitive in effect.

Activists who oppose registrati­on will call attention to that reality during a vigil at the Supreme Court on Tuesday morning. They are clearly right in arguing that the illusory benefits of public registries cannot justify the burdens they impose.

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 ?? JIM WATSON/AFP VIA GETTY IMAGES ?? The U.S. Supreme Court in Washington.
JIM WATSON/AFP VIA GETTY IMAGES The U.S. Supreme Court in Washington.

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