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‘Frightening and High’: The Frightening Sloppiness of the High Court’s Sex Crime Statistics

This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case. The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts. ArticleFull Paper [pdf]

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  1. steve

    Wow!!!! Great report! Registry needs to go and the fact the Supreme Court relied on FALSE information to base it’s decision is telling. Is this the report that starts it’s demise?

    “in assessing risk, there’s another important thing to consider: whatever the assessment of risk at the outset, the likelihood of re-offense declines for each year after release without a new sex offense, even for offenders initially considered at the highest risk to re-offend. In the 2014 Hanson study, none of the offenders in the high risk group who was offense-free AFTER 16 YEARS committed a sex offense thereafter.his point is important because most people are typically put on registries for decades, and often for life. Being offense-free for twenty years, or more, will not get them removed.”

    “The burdens imposed by registration and all that follows from it demand justifications based on more individualized risk assessments. That is the principle. The correct fact is that the risk level, for nearly everyone on the registry, is nowhere near the “frightening and high” rate assumed by Smith and McKune and all the later decisions that rely on them.”

  2. B

    “The arc of the moral universe is long but bends toward justice.” (MLK)

    Someday the registry will be gone because it is unjust. Crimes are punished once and then you get on with your life. I don’t know if the registry will go due to legislative action or judicial action. If, as I suspect, it goes due to judicial action, we may look back at this paper as a huge step forward.

  3. Two states east

    Whoa ! See note 9: It says it was used in the VOTERS PAMPHLET in California JESSICA’S law initiative. Is that a Runner thing ? Am I confused, or can you use that in the letters ? Sez it was used in the Preamble…See pg 4 of 11.

  4. Two states east

    Oops, sorry. It’s section 2b in prop 83, And all of you know about it.

  5. steve

    I’m shocked not a lot of comments on this.

  6. Two states east

    Steve: Your comment from June 16: “..the Supreme Court relied on false information…”
    It wouldn’t have mattered. Go to the public website Daily strength, families of sex offenders. Under the Discussion topics, go to Smith v Doe Revisited. Then to Reply # 13, Aladdin 4d. I’ll type some of it here:

    “The standard of review is not was the Legislature correct when it concluded that sex offenders have a HIGH rate of recidivism. The real question is simply could the legislature have reached that conclusion ? The conclusion doesn’t have to be logical, correct, or even all that reasonable so long as it isn’t based on an unconstitutional premise like say race or gender; just so it could be reached.”

  7. Diana

    Thanks for this. I am finding the Ellman essay on more websites every day. I believe that the information therein is so clear and shocking that even those who would not usually agree with us might take an interest. Especially during these politically charged times. What better target than the high and frightening court?

    The best summary with a large readership that I found was in the Washington Post, by an opinion writer named David Post, Aug. 16, 2015, “More fuel for the movement to reform sex offender laws”. The best
    short summary was Matthew T. Mangino: “Supreme Court perpetuates sex offender law myths”. Best Action Oriented was from Sosen: “Time to File a Petition for Writ of Error Coram Nobis in Smith vs. Doe.”

    • sadandmad

      It’s at the point where the people will say “eff their rights, we need to be aware of them”

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