The US Supreme court "Recidivism" discussion seemed to be the tipping point of Smith v Doe, but something went wrong, somehow the truth of recidivism data did not control the outcome of Smith. What went horribly wrong? This paper explores that specific issue and reveals facts never before researched and documented. So lets start at the beginning, the first Bureau of Justice (BJS) National Recidivism study.
Known National Recidivism Studies:
1) In 1984 the BJS published the first ever National Recidivism Study: "Returning to Prison." This study took data from 20 states and arrived at recidivism numbers. The problem here was, recidivism was not clearly defined and there were various differences between the data from the states which were part of this study. What we learn from this study is, definitions and standards were created so that there would be consistency in future studies. The published results were mixed at best.
2) In 1989 the BJS then published the second, but first ever "National Recidivism Study" with data consistency between the states collecting data. The study was "Recidivism of Prisoners Released in 1983" Published 4-1989
3) Then the BJS published the second ever "National Recidivism Study." The study was "Recidivism of Prisoners Released in 1994" Published 6-2002.
4) Then from the BJS comes the first ever " Recidivism of Sex Offenders Released from Prison in 1994" Published in 11-2003.
Given "recidivism" was at the core of Smith v Doe, we need to explore what occurred in Smith with respect to recidivism studies. Here is a chart of the relevant Smith docket items and the national recidivism studies, relevant of which -at the time- should have played a part in Smith, but did not and the wrong one did. This one wasn't published until after the court decision:
|Name of Study:|
|Varying||See Table-1||Nov 1984||Returning to Prison|
|1983||1984-1986||Apr 1, 1989||Recidivism of Prisoners Released in 1983|
|Sup Court||Nov 21, 2001||Smith v Doe--(Petition for writ of certiorari filed)|
|1994||1995-1997||Jun 2, 2002||Recidivism of Prisoners Released in 1994|
|Sup Court||Jun 18,2002||Smith v Doe--(Motion of the Solicitor General for leave to participate in oral argument as amicus curiae)|
|Sup Court||Jun 28, 2002||Smith v Doe--(Motion of the Solicitor General for leave to participate in oral argument (GRANTED))|
|Sup Court||Jun-Aug 2002||Smith v Doe--(Note: Many Other Amicus Briefs Filed)|
|Sup Court||Nov 13, 2002||Smith v Doe--(Oral Arguments)|
|Sup Court||Mar 5, 2003||Smith v Doe--(Decision)|
|Sup Court||Mar 21, 2003||Smith v Doe--(Petition for rehearing filed.)|
|Sup Court||Apr 28, 2003||Smith v Doe--(Rehearing DENIED.)|
|1994||1995-1997||Nov 2003||Recidivism of Sex Offenders Released from Prison in 1994|
It is imperative to know what the US Sup court, as to recidivism, was hearing during oral argument. Accordingly, besides what was filed in briefs, during Oral Argument the following discussion took place:
MR. ROBERTS: -- Court has recognized, as recently as last June in the McKune case, for the conclusion that those convicted have a high rate of recidivism.
There is no doubt that Alaska's high recidivism rate was firmly implanted in the minds of the Justices. The origin of that belief is this 1996 Alaska study: "Sex Offender Treatment Program: Initial Recidivism Study by Anthony M. Mander, Martin E. Atrops, Allan R. Barnes, and Roseanne Munafo (1996). More recent studies (2007-2012) show a much reduced sex offender recidivism rate. "2% of sex offenders were reconvicted of another sex offense."
Summary: This report presents results of a recidivism study of participants in the Sex Offender Treatment Program at Hiland Mountain Correctional Center, Alaska Department of Corrections, from January 1987 to August 1995.
Now we need to find out what the McClune case (in June of 2002) said about recidivism rates that everyone seems to accept as gospel during Smith's Oral Argument (Nov 13, 2002). The US Supreme court in McKune v Lile 536 US 24 (June 10, 2002) had this to say:
Sex offenders are a serious threat in this Nation. In 1995, an estimated 355,000 rapes and sexual assaults occurred nationwide. U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 1 (1997) (hereinafter Sex Offenses); U.S. Dept. of Justice, Federal Bureau of Investigation, Crime in the United States, 1999, Uniform Crime Reports 24 (2000). Between 1980 and 1994, the population of imprisoned sex offenders increased at a faster rate than for any other category of violent crime. See Sex Offenses 18. As in the present case, the victims of sexual assault are most often juveniles. In 1995, for instance, a majority of reported forcible sexual offenses were committed against persons under 18 years of age. University of New Hampshire Crimes Against Children Research Center, Fact Sheet 5; Sex Offenses 24. Nearly 4 in 10 imprisoned violent sex offenders said their victims were 12 or younger. Id., at iii.
Bingo, the McKune court was relying on OLD statistics and "U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997)," 1983 statistical data. A review of the McKune docket it is easy to see why the court did not use later statistical data. Oral Arguments were held on Nov 28, 2001 before the 1994 study and final decision Jun 10, 2002 after release of the 1994 study.
But, that does not explain why the Smith court was not aware of 1994 recidivism statistics ( Recidivism of Prisoners Released in 1994 ) published 5-months before its oral arguments, on June 2, 2002. Was this an oversight or was everyone just ignoring them because it might change the outcome of Smith?
And there is no explanation for not raising "New Recidivism Statistics" when requesting rehearing on March 21, 2003. Published statistical data was being ignored. Why?
Also notice, the 1983 study, the study was published within 3-years of collecting study data. The 1994 study, published within 5-years of collecting study data. Almost twice the time to publish results. Was this study purposefully delayed because of the case in the US Sup court?
Finally the biggest question: The Recidivism of Sex Offenders Released from Prison in 1994 was not published until after the US Sup court case; Nov 2003. Why did it take 6-years after collecting study data to publish results? This study drew from the same study data as the Recidivism of Prisoners Released in 1994 study already published. Did the -then active- US Sup court case effectively delay this study?
Clearly the Smith court was not fully informed about CURRENT recidivism studies BEFORE rendering its decision, and it appears to have been mislead by the absence of CURRENT recidivism data! This scenario further shakes my faith in our criminal justice system.
Will there be future National Recidivism Studies?
Here is what we found:
On this BJS page it says "These are the most recent recidivism data available until a new BJS study on the recidivism of state prisoners released in 2005 is published in 2012." Then on this BJS page it says "These are the most recent recidivism data available until a new BJS study on the recidivism of state prisoners released in 2005 is published in 2013."So YES something is in the works, but when will it be published? Your guess is as good as ours.
And there is another possibility, is the study being delayed because of one or more cases working their way through the courts? Or is there some other Behind Closed Doors force keeping recidivism data from court decisions?
For now have a great day and a better tomorrow.