In February,2019, Dr. Emily Horowitz, a sociologist and the author of “Protecting Our Kids: How Sex Offender Laws are Failing Us.” (2015) was a guest presenter on the FAC membership call. Talking points from her presentation are available Here:
In her presentation, she referenced the study “Frightening and High”: The Supreme Court’s Crucial Mistake about Sex Crime Statistics by Ira Mark Ellman and Tara Ellman. The complete 14-page article is found on the University of Minnesota Law school scholarship repository:
Background: In Smith Vs Doe, 538 U.S. 84 (2003) the US Supreme Court ruled that the registry was not punishment, but merely a civil measurement reasonably designed to protect public safety. Justice Kennedy, in writing for the majority opinion, recalled an earlier ruling referencing the phrase: “frightening and high.” This ‘phrase’ had previously appeared in multiple ordinances and rulings, prior to the Supreme Court ruling. In fact, in a Lexis search of legal materials, the phrase is found in 91 judicial opinions as well as in briefs for 101 cases.
However, a careful research of the origin of this ‘phrase’ found only one source for this claim, an article published in 1986 in Psychology Today, a ‘mass market’ magazine aimed at a lay audience. There is no supporting evidence, no peer review which is the standard for scientific basis, no noted study for this frequently used yet uninformed and inaccurate phrase. The author of the Psychology Today article is a counselor, not a scholar of sex crimes or re-offense rates nor a researcher. He also added as a contrast, to his equally unsupported assertion, there was a lower recidivism rate for those who completed his program. Anyone who has experience with the consequences of being on the registry knows firsthand the impact of uninformed and inaccurate statements that serve to create unfair and politically motivated laws that claim to provide safety to the public.
The following are some take away quotes and points from this study:
- “The California Corrections Department recently examined cases of sex offender registrants who are returned to prison and found that 92% of the cases were for a parole violation, such as going to a bar or visiting with someone who is also an ex-felon. These are actions that would be legal for anyone other than one on the registry. Less than 1% of those re-incarcerated had committed a new sex offense.”
- The longer one remains offense free, the less likely another crime will be committed. (reference: R. Karl Hanson et al: “High-Risk Offenders May Not be High-Risk Forever”. This is a well vetted body of research by all credible standards, which includes data from 21 studies (a meta-analysis totaling nearly 8000 subjects). Two important notes: This was a study done on HIGH risk and the risk rate decreased over time, which is significant in that most are placed on the registry for life whether high risk or not. In Florida, the authors of the study note that registration is for life and no distinction is made among the registrants.
- For those who are NOT classified as high-risk in the first place, about 97.5% of this group were offense free after five years (also taken from Hanson study).
- Important statement to remember: If the registry’s main purpose is to let us monitor and warn people about those who committed violent, coercive, or exploitative contact sex offenses, we dilute its potential usefulness when we fill it up with people who never did any of these things.
Here are the Hanson Findings:
Two rulings worthy of note:
The Pennsylvania Supreme Court recently held that treating everyone convicted of a sex offense as a likely re-offender, when many are not, violated the constitutional guarantees of due process. The California Supreme Court is also dealing with decisions related to statutes that apply to every offender without regard to their individual circumstances.
The principal common to the California and Pennsylvania decisions is: “Concerns about public safety cannot justify policies that impose serious burdens on entire categories of individuals when many of them actually present little risk, at least when more accurate assessment criteria employing established actuarial measures and the simple passage of time could easily be employed instead.”
Getting courts to understand the facts well enough to apply them properly. The Hanson study finds the re offense rate for low and moderate-risk offenders, who probably account for MOST adults on the registry, is within the same 2-7% range the court attributes to juveniles. (Note: The rationale for getting juveniles opportunities to get off the registry could also apply to adults.)
Summary: “Risk perception may not be about quantifiable risk as much as it is about immeasurable fear. Our fears are informed by history, economics, social power and stigma, myth and nightmares…..When we encounter information that contradicts our beliefs, we tend to doubt the information, not ourselves.”
Unfortunately, the Supreme Court has fed this fear, fed by self-interested non experts rather than definitive studies. We can no longer have a casual approach to the facts of sex offender re-offense rates. It is high time for corrections!
Note from the Florida Action Committee: Corrections will best be achieved by active participation in organizations such as the Florida Action Committee. If you have not yet joined or made a commitment to work on one of our projects, do so now! We need you! Send Email to: [email protected] With Unity Come Change.