The Truth: Recidivism and Smith v Doe, What went wrong?

March 2014:

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? Here we explore that specific issue and reveal 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" seems to be the core of Smith v Doe Oral Argument, 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:

Inmates Released	Study Data Gathered	Study Published	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. (Note: That is the first mention of recidivism during oral arguments) QUESTION: May I ask you a question about that? I -- I understand that the -- the percentage of sex offenses in Alaska with children is extremely high, and what is -- has been the effect of this scheme if it's been employed? Has it had some effect there -- MR. OLSON: I -- QUESTION: -- in reducing the number of sex offenses? MR. OLSON: I do not know the answer to that, and perhaps Mr. Roberts does. But what this is -- and I think this is a proper way to think of this statute -- in connection with a class of offenses, where the -- where the rate of recidivism is significantly higher -- as this Court has held very recently -- than any other crime, people are asking their government please allow us to know when we have someone in our neighborhood. When we -- when we're hiring a new -- ... ... ... ... QUESTION: I'm sorry. One -- one thing that makes it more difficult perhaps than it might be to see your side of the argument -- go back to the Chief Justice's question. What if they put every criminal conviction on the Internet? Well, there's one difference between the situation that would obtain then and the situation that -- that you're objecting to here. That is, that there is not the same high recidivism rate for crimes generally that there is, apparently undisputedly, for sex crimes in the State of Alaska. And therefore, when you earlier made the argument that there is something very -- something less than credible in the State's claim that it's merely trying to inform the public when, in fact, it makes no differentiation between current dangerousness and uncurrent dangerousness, the answer is there is -- or an answer is -- there is a very high recidivism rate, and that high recidivism rate does support the claim that there is something that -- that it is credible to say that by publishing this information, we are simply trying to inform people of a probability of dangerousness, leaving them to do what they want. What is -- is there any -- do you have any response to this claim that the high recidivism rate itself supports the argument that, in fact, this is nothing but a safety information kind of measure, whereas broadcasting all criminal convictions would not be justified as having a good fit between the object and what the State was doing? Do you have any response to that? MR. THOMPSON: I certainly don't profess to be an expert on the statistical recidivist rates. I think that is -- QUESTION: You don't dispute the State's recidivism figure, do you? MR. THOMPSON: Well, actually vis-a-vis the brief that was submitted by Massachusetts as an amici in this, sets forth a very different pattern of recidivist rates. I mean, when we say recidivist rates, are we talking about repeat sex offenses? Are we talking about repeated crimes? I mean, there are all different ways in which -- QUESTION: They're making specific -- they're making specific claims. They -- they set out specific percentages with respect to Alaska. Are you disputing those figures or not? MR. THOMPSON: We do. QUESTION: You do. All right. MR. THOMPSON: We do, but I don't think we did it directly in our brief, but I think other -- other briefs -- QUESTION: That's -- that's the trouble. Yes. MR. THOMPSON: -- do. ... ... ... ... MR. ROBERTS: But again, with respect to both the Ex Post Facto Clause and the Due Process Clause, the question is whether there's a rational connection between the sanction and the legislative purpose. Now, if it is too extreme, it may cause you to doubt that connection. For example, it may be -- the legislature may say we think safe crackers present a risk of recidivism, so we're going to cut off their hands. There may be a rational connection there, but it's too excessive given the purpose.

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. The report provides an overview and history of sex offender treatment in Alaska as well as a literature review of other studies and findings on this area of treatment. The Alaska study, which was the first conducted of the treatment program, found that any level of treatment achieved resulted in less recidivism, with the longer the period of treatment, the lower the recidivism. The study also noted the high percentage of Alaska Natives in the program and the history of alcohol and substance abuse presented by many sex offenders. The majority of offenders in the program were guilty of assaulting children. The study discusses the program's cost benefits as well as the implications of its findings for probation and parole. Which includes this series of papers: Sex Offender Treatment Program: Initial Recidivism Study — Executive Summary by Alaska Department of Corrections and Alaska Justice Statistical Analysis Unit (1996). Sex Offender Treatment Project: Literature Review by Allan R. Barnes, Melanie Baca, Melody Dix, Shelly Flahr, Cathy Gaal, Max Whitaker, Samantha Moeglein, and Nicol Morgheim (1994). Sex Offender Treatment Program: Preliminary Description by Alaska Justice Statistical Analysis Unit (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. "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. See Sex Offenses 27; U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997). States thus have a vital interest in rehabilitating convicted sex offenders. 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%. “Even if both of these figures are exaggerated, there would still be a significant difference between treated and untreated individuals”)."

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.
eAdvocate