How the Supreme Court has promoted myths about sex offense registries

Twenty years ago, the justices deemed registration preventive rather than punitive.

By  Jacob Sullum   Mar 1, 2023, 12:30pm CDT

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 offense 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 [so called] “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 people. 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 of a sex offense, 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 offense 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 people may live and which locations they may visit, undermine rehabilitation and continue to punish people 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.

Jacob Sullum is a senior editor at Reason magazine.

Source Chicago Sun-Times

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This is probably the most rational article I have ever read about the sex offense registry scheme.

Do registries work? A simple test should let us know. Since the super majority of people convicted of offenses have been placed on the registries for the last 20 years, then obviously if registries work the rate of sex offenses should have declined drastically over that time period.

Since the internet has exploded since Smith vs Doe, and since more data is available that refutes the claims of Kennedy, and since there are a number of new justices, it is time to challenge this ruling and reevaluate the registry.


Here is publishing this same article on Mar 1, 2023 with some interesting comments and links to other registry related articles you may enjoy reading: How SCOTUS Promoted Pernicious Myths About Sex Offender Registries
One comment in particular calls it out like it is:

Civil Ex Post Facto laws are only constitutional because the US Supreme Court decided in 1798 that Article I, Section 9, Clause 3 (No Bill of Attainder or ex post facto Law shall be passed) only applied to criminal law. Same for Article I, Section 10 (no State shall pass any ex post facto Law). One can appreciate the humor in this as the constitution was only 9 years old at this time and the people who wrote it were still alive. They Court didn’t need to wonder if that is what the founder intended, they could have walked down the street and asked them.

SORNA accomplishes none of its stated goals and even if one could argue it was not punishment when it started (it was), State legislatures have added more onerous requirements to it making it punishment now without a doubt. Laws are passed every day at the State and even Local level (county and city) based on nothing more than getting headlines and re-election mailer material. Not a single new law is based on fact or study that passing it will make one more child safe in exchange for violating registrants constitutional rights. Nor at any time, just like SORNA itself, are these laws reviewed by those law making bodies to ensure the produce the result promised.”

The Chicago Sun Times ram this?

Surely the End Times are upon us.

So, studies and even CASOMB admit that the recidivism rate is low, and still the government is allowed to keep using myths to punish a group of people forever? How can we make them stop. Studies are in black and white, so how come this can not be made clear to the uneducated public? The public should be outraged that they have been lied to yet again! I would be,

The most telling thing about this article is that it comes from a mainstream newspaper. It may not be the Chicago Tribune, but the Sun Times is still a pretty big deal. At least Roger Ebert would think so

Child abductions in this country has gone down drastically and it’s not because of Megan’s law it’s because of today’s technology and CCTV that’s it plain and simple. …

Some comments as to the publication appearing in the Chicago Sun Times as being notable and important are generally true. But such opinion pieces must be repeated over and over again (an ongoing “drumbeat”), if we are to turn the tide, persuading the general public (as well as the “finger-in-the-wind” politicians) as to the many counter-productive consequences of this Kafka-esque scheme.

I would note that the Los Angeles Times has twice published Opinion pieces on this very subject (May 29, 2015 and then again on June 23, 2017), advocating for reform or ending of the registry. Similarly, the widely-read online media publication, The Hill, published a similar opinion piece on May 5, 2018, as did Yahoo News, on March 24, 2022.

Whenver such pieces are published, it would be wise for ALL OF US to then write comments on the subject in response if possible, as there will naturally be many “registry advocates” doing the same.