by Ira Ellman, Professor at Sandra Day O'Connor College of Law, Arizona State University
Proponents of criminal justice reform never talk about sex offenders. They’re political untouchables subject to debilitating legal restrictions that typically continue for decades after they have served their sentence. The Supreme Court upheld two such restrictions in a pair of cases decided in 2002 and 2003. Those decisions were grounded on the factual assumption that sex offenders have a re-offense rate of about 80 percent , a rate so “frightening and high” that it justified their harsh post-release treatment. The Court’s colorful language about the re-offense rate has since been quoted in nearly 100 judicial opinions, and is often relied upon to justify America’s harsh and distinctive laws on sex offenders. It turns out, however, that the “study” the Court cites for this 80 percent re-offense rate does not exist. More importantly, the scientific studies that do exist show that the great majority of people required to register as “sex offenders” under current laws are in fact very unlikely to commit a sex offense. That’s partly because the sex offender label is applied so broadly that it includes many people who never posed a high risk, and partly because in so many states, living offense-free for fifteen or twenty years after release doesn’t get one off the public sex offender registry, even though studies show those who do not re-offend for fifteen years are very unlikely to do so thereafter.
A few state supreme courts have now reevaluated the constitutional status of such laws. Read a summary of my forthcoming article reviewing these developments, with a link to the fuller version.