With oral arguments before the Pennsylvania Supreme Court opening May 23, 2023, a member of the NARSOL affiliate in West Virginia looked at these two US Supreme Court (SCOTUS) cases which are cited so often, and prepared a brief review to share.
Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003).
This case has been cited 5,990 times in cases and court documents. Alaska’s SORA was challenged as being punitive and thus violating ex post facto (adding punishment after the fact) laws. The Federal 9th Circuit Court of Appeals found the act punitive. On grant of certiorari, the Supreme Court Justice Kennedy, held that the Act was nonpunitive and therefore its retroactive application did not violate the ex post facto clause. The case was reversed by SCOTUS on a 6-3 decision. The most commonly cited quote is the following paragraph:
Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.” McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002); see also id., at 33, 122 S.Ct. 2017 (“When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault” (citing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997))).
Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 1153, 155 L. Ed. 2d 164 (2003). NOTE: Smith v Doe has been cited 86 times with negative treatment (contrary findings) since 2003 in other court cases.
McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002).
This case has been cited 3,584 times in cases and court documents. Lile was challenging his Fifth Amendment right against self-incrimination by being compelled to admit his sexual assault in order to pass sex offender classes administered by the state while incarcerated in Kansas. Kansas prison officials ordered respondent to participate in a Sexual Abuse Treatment Program (SATP). As part of the program, participating inmates are required to complete and sign an “Admission of Responsibility” form, in which they accept responsibility for the crimes for which they have been sentenced. Here the Federal 5th Circuit agreed with Lile and the case was reviewed by SCOTUS. Supreme Court Justice Kennedy, held that adverse consequences faced by state prisoner for refusing to make admissions required for participation in sexual abuse treatment program were not so severe as to amount to compelled self-incrimination. The case was reversed by SCOTUS on a 5-4 decision. The most commonly cited quotes are the following:
Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism. See U.S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender xiii (1988) (“[T]he rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%,” whereas the rate of recidivism of untreated offenders has been estimated to be as high as 80%.
The critical first step in the Kansas SATP, therefore, is acceptance of responsibility for past offenses. This gives inmates a basis to understand why they are being punished and to identify the traits that cause such a frightening and high risk of recidivism.
McKune v. Lile, 536 U.S. 24, 33–34, 122 S. Ct. 2017, 2025, 153 L. Ed. 2d 47 (2002) NOTE: McKune v. Lile has been cited 38 times with negative treatment (contrary findings) since 2002 in other court cases.
The recidivism battle will continue this week in oral arguments opening May 23 in the PA Supreme Court case in Commonwealth v.Torsilieri 2. The next quotes we see about recidivism from SCOTUS will likely come from this PA case.
FAC thanks Stephen for sharing this review. Stephen is a member of the NARSOL Affiliate in West Virginia.
These cases are both based on flawed statistics. (*0% is factually incorrect).
But one of the things that Pennsyvania Commonwealth has been arguing is that the actual recidivism rate does not matter because the crime is so heinous. So they are basically saying that, even if the recidivism is only 5%, that 5% number represents a “high” figure (because of the heinousness of the crime and the disproportionate affect it has on society in general).
And they are saying that the Pennsylvania legislature has every right to determine what is a “high” number for recidivism because the term “high” is relative (to the heinousness of the crime).
But I believe that this is a bad argument (a nonstarter) because the law says clearly what the law says. The law says “high recidivism”, and that rate is relative to ALL recidivism, not just a subset.
Pennsylvania Commonwelth are twisting the plain facts!
I too had to take and complete ” Sex offender group” before I would be able to get a parole. I was ” kicked out, removed” from this group because of what my ” Pre- sentence investigation ” report said that I was convicted of…it was wrong.
So, I was told that I was ” not ready” for group and I was removed. My first chance for parole came and I was told by the parole board that I ” had to get back into this group and gave me a two year continuance… denied Parole.
I filled a motion with the Court to correct my” PSI” because it was wrong and because of it being wrong I was removed from” group”.
I had to get an in person interview with the head of psych services to decide if I could get back on ” the list ” to be included in the next group.
I was able to show the Court that in fact my PSI was wrong, that I was ” acquitted ” of the charged offence but found guilty of the” lesser included ” offence….there are more details that I had to overcome. But, my point is, if u don’t complete the group, u will do your max sentence.
In ’91 my group sessions were 80+ miles one way, 3 days a week, and cost $50 per session. To “graduate,” we each had to pass a voice stress test. They kept holding me back because I maintain innocence despite no contest plea. Even if I were granted clemency, which would probably remove me from the registry, I’d still have to deal with the feds and it can never be expunged or sealed.
As part of my probation, I was required to attend a year long counseling at my own expense. It ended up being groups sessions which was not comfortable for some but for me I loved it as I am not shy at all. I was in fact so talkative that after 90 days, the counselor contacted my probation officer and said I had successfully completed the program and no further counseling would be any benefit to my success.
I kind of missed it but did not miss the $50 we had to pay in addition to our probation fees.
Thank you for trying.