8-21-15 National:Recently I've received e-mails about a new paper addressing 2003 Smith v Doe, one of two sex offender cases from 2003, and which did rely in part on 2002 McKune v Lile. Supposedly this new essay found a way to challenge 2002 McKune v Lile's belief that sex offenders have a high recidivism rate. If that were possible then 2003 Smith v Doe would be in trouble as well. i.e.,cut the roots and the tree will fall.
While I hadn't heard of essay authors before, but I am always open to new work and ideas. Given my past research on both cases above I was interested in reviewing this essay. I had high hopes this was the Golden Egg. So this is a review of their Essay:
The Supreme Court’s Crucial Mistake About Sex Crime Statistics
I recognized the paper because it was also on SSRN, but the version sent to me was different. So for clarity sake: paper on SSRN is Version-B ('Frightening and High': The Supreme Court’s Crucial Mistake About Sex Crime Statistics), version sent to me is Version-A (The Supreme Court’s Crucial Mistake About Sex Crime Statistics)(Links provided). Titles slightly different, inside looks different as well so my review is of Version-A only.
Sex offender recidivism is always an issue, it has been in the past and will continue to be in the future. Sex offender recidivism is high or low depends on the research paper one reviews; how it is measured can vastly effect percentages. Recidivism is a measurement of the success or failure of past social, rehabilitative and law enforcement programs.
Reading Version-A, I didn't get two paragraphs in and knew something was amiss. The authors haven't fact checked well, the pieces of information they found and complain of. Essay Authors say the claims of high recidivism in 2003 Smith v Doe came from its reliance on a case from a year earlier 2002 McKune v Lile. (Smith did cite McKune but..?) Further that, what appears to be support for McKune is not really authority. Then blame the 2002 Solicitor General for submitting, as authority for high recidivism a certain document containing a quote (estimating recidivism (up to 80%)) made by Freeman-Longo. Authors say, Freeman-Longo (source of comment) is not qualified to make such a comment. Further, that is the ONLY support in McKune for the premise of High Recidivism.Using Version-A Essay authors provide a link to the document complained of "a 1988 Justice Department “Practitioner’s Manual", opening the document the real name is "A Practitioner's Guide To Treating the Incarcerated Male Sex Offender." (TPG) OK, we begin here:
Verbatim from Essay Version-A:
A "Statistic" With No Support
McKune provides just one citation for its much-quoted statement: a 1988 Justice Department “Practitioner’s Manual”. That reference likely came from the amicus brief supporting Kansas filed by the Solicitor General, then Ted Olson, which also cites it. This Practitioner’s Guide itself provides but one source for the claim, but it’s no scientific study. It’s a 1986 article from Psychology Today, a mass market magazine aimed at a lay audience, which had this sentence: “Most untreated sex offenders released from prison go on to commit more offenses–indeed, as many as 80% do.” Freeman-Longo, R., & Wall, R, Changing a lifetime of sexual crime, Psychology Today (1986).
That sentence is a bare assertion with no supporting reference. Nor did its author have the scientific credentials needed to qualify at trial as an expert on recidivism. He was a counselor, not a scholar, and the article containing the sentence isn’t about recidivism statistics. It’s about a counseling program for sex offenders he then ran in an Oregon prison. His unsupported assertion about the recidivism rate for untreated sex offenders was offered to contrast with his equally unsupported assertion about the lower recidivism rate for those who complete his program..
CORRECTION 8-26 9AM: Thanks to a reader.Absent some form of skullduggery, I don't think it matters much who submitted any specific source, whats important is, did the Justices complain about sources? If not, and I'm sure they are very intelligent folks, they accepted, reviewed, and worked sources into their decision, or simply ignored sources; that is what I've seen reading cases over time.
The TPG did come from the Amicus Brief file by Solicitor General (see SG brief at link pg-3 note 2). However, although the TPG does point to a Psychology Today article on pgs-49 and 188. The full articles were never submitted as part of the case. Further that, the alleged wording of the comment shown by Essay Authors as coming from the Psychology Today article is different from what appears in the TPG. see TPG 44 and 219. The real source is found on pg-117 and 122 which cites a recidivism study authored by Freeman-Longo and two other folks.
Now, McKune was a case about in prison sex offender treatment, the Practitioner's Guide is about sex offender treatment and more, correct for McKune. Likely why Justices considered the Guide. I fail to see how the Guide could be considered inappropriate for McKune. Then I see the Freeman-Longo name, I recognize it, he is one of the oldest researchers of sex offender topics and recidivism, he has published dozens of papers over the years. ex: "Revisiting Megan's Law and Sex Offender Registration: Prevention or Problem" Robert E. Freeman-Longo, MRC, LPC for one of his many papers.
Moving on.
A Look INSIDE the 1988 Practitioners Guide:
We opened the link provided by Essay authors, inside we found:
"A Practitioner's Guide To Treating the Incarcerated Male Sex Offender." (TPG)."
Who created it: National Institute of Corrections, Raymond C. Brown, Director, John E. Moore, Project Manager.In the Preface of the TPG we find this:
"Although there are a number of problems in using recidivism rates to measure program success in any area, the rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%. According to Robert Freeman-Longo, Clinical Director of the Oregon State Hospital Sex Offender Treatment Program, the recidivism rate of untreated offenders is around 80%. Even if both of these figures are exaggerated, there would still be a significant difference between treated and untreated individuals."
The (undated) comment the Essay Authors question.
However it is inserted by the creators of the TPG in 1988.Next look at "About the Authors" page, nine folks are shown, most with PhDs. All credible folks and their backgrounds are explained, too much information to include here. see TPG.Now very important from TPG page 117:
A measure of a treatment program's effectiveness is, of course, the reoffense rate of its graduates. The problems of detecting recidivism in sex offenders are frequently mentioned in the literature of the field and are well documented in a study by Groth, Longo, and McFadin (1982). In the few studies available, there is some evidence that the highest rate of known repeated offenses occurs within the first two years of release from a correctional facility (Christiansen, Elers-Nielson, Lamaire, & Sturup, 1965; Soothill & Gibbens, 1978).
There is no doubt "A Practitioner's Guide To Treating the Incarcerated Male Sex Offender (TPG)" is about treatment, recidivism, aftercare and more! All necessary to issues of McKune. In fact, if we look at pages 7, 65, 117, 139, 220-224 we will see several recidivism papers w/authors and recidivism rates shown.Note: Groth, A.N., Longo, R.E., & McFadin, B. (1982) Undetected recidivism among rapists & child molesters. Crime and Delinquency, 28 (3), pp. 450-458. ( Groth reported that 60% to 80% of adult offenders admitted that they had begun their deviant sexual behaviors as adolescents. (Source: pg-179 of Offenders: Characteristics and Treatment by Judith V. Becker) -- ( A significant portion of sexual crimes are committed by juveniles; research indicates that as much as 80% of adult sexual offenders committed sexual crimes as juveniles. citing Groth et al, Undetected recidivism among rapists, and child molesters. Crime and Delinquency, 1982; 128: 450-458. [Source: Mandated Treatment Programs for Juvenile Sexual Offenders]) -- See also other Freeman-Longo papers
Now we see a problem, Essay authors say they found the 80% comment in a 1986 paper from Psychology Today (and it may be there ?), reality is, a 80% comment is in the TPG Preface /viii, 44, 219. Based on what we found, the creators of the TPG put an undated 80% comment in when they created the TPG, and their source (embedded in the TPG) is 1982 research authored by Freeman-Longo and two other folks. Is it possible that Essay authors failed to find this in the TPG?
The TPG Guide (loaded w/information related to treatment, recidivism and more, issues of McKune) is relevant to McKune Moving on..
Now the actual McKune decision (click link and scroll down to the following):
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 *3333 sex offenders said their victims were 12 or younger. Id., at iii.Apparently the McKune Justices accepted for review several research papers by different authors (Depart of Justice, etc.) obviously relevant to the issues under consideration in McKune. True, the "Practitioner's Guide" is included, but, it is NOT the only authority the court relied on. There would be no point in even mentioning the other studies if they had nothing to do with recidivism of sex offenders and played no part in McKune's decision. Justices had no problem accepting them. So, did "McKune provides just one citation" as Essay authors suggest, or did McKune review other research shown as well? Essay authors fail to mention or address any of the other research. WHY?
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 id; at 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").
Clearly the McKune court did not rely solely on the Practitioner's Guide.
What did Justice Kennedy actually say: What was his source for his strong language?
Verbatim cite from Essay Version-A:
"Frightening and High"Verbatim from actual Kennedy Opinion:
McKune v. Lile, 536 U.S. 24, 33 (2002) rejected, 5-4, Robert Lile’s claim that Kansas violated his 5th Amendment rights by punishing him for refusing to complete a form detailing prior sexual activities that might constitute an uncharged criminal offense for which he could then be prosecuted. The form was required for participants in a prison therapy program; refusing to join the program meant permanent transfer to a higher security unit where he would live among the most dangerous inmates and lose significant privileges, including the right to earn the minimum wage for his prison work and send his earnings to his family. Justice Kennedy explained the treatment program helped identify the traits that caused “such a frightening and high risk of recidivism” among sex offenders—a rate he said “has been estimated to be as high as 80%.”
"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%."
When Kennedy used the phrase "frightening and high risk of recidivism" his source appears to be the Practitioner's Guide (underlined above) his comment follows where the opinion shows sources before the court. Had he read the TPG?
Remember, we now know the real source of the 80% comment, research study from 1982 by Freeman-Longo and two other researchers: Groth, A.N., Longo, R.E., & McFadin, B. (1982) Undetected recidivism among rapists & child molesters. Crime and Delinquency, 28 (3), pp. 450-458. Found when we opened the TPG.
Pre-Qualification of documents (and comments inserted in them) submitted in court cases:
Verbatim cite from Essay Version-A:
This Practitioner’s Guide itself provides but one source for the claim, but it’s no scientific study. It’s a 1986 article from Psychology Today, a mass market magazine aimed at a lay audience, which had this sentence: “Most untreated sex offenders released from prison go on to commit more offenses–indeed, as many as 80% do.” Freeman-Longo, R., & Wall, R, Changing a lifetime of sexual crime, Psychology Today (1986).Here Essay authors have missed a very important fact, while a Freeman-Longo comment may very well be in the 1986 Psychology Today article, that article was never submitted to the McKune court, nor is it mentioned in any of the Justices opinions.
That sentence is a bare assertion with no supporting reference. Nor did its author have the scientific credentials needed to qualify at trial as an expert on recidivism. He was a counselor, not a scholar, and the article containing the sentence isn’t about recidivism statistics. It’s about a counseling program for sex offenders he then ran in an Oregon prison. His unsupported assertion about the recidivism rate for untreated sex offenders was offered to contrast with his equally unsupported assertion about the lower recidivism rate for those who complete his program.
The Freemand-Longo comment is actually in the Preface of "A Practitioner's Guide To Treating the Incarcerated Male Sex Offender" put there by NIC when they created the Guide. The comment comes from 1982 research by Freeman-Longo: Groth, A.N., Longo, R.E., & McFadin, B. (1982) Undetected recidivism among rapists & child molesters. Crime and Delinquency, 28 (3), pp. 450-458. NIC support is found on pg-117 of th TPG. See my earlier review of the contents of the TPG. Again, how did Essay authors miss this?.
Essay authors missed the real source of the 80% comment, 3 places in TPG, and who knows when Freeman-Longo said that to NIC, and even that is not important because the TPG Guide pg-117 shows the real source, a 1982 recidivism study authored by Freeman-Longo and two other researchers.
This is the strangest set of facts ever, pre-qualifying documents submitted for court consideration. Courts would shut down if they had to do this for everything submitted in a case. Every person mentioned or quoted (NIC quotes Freeman-Longo in their TPG), in a document submitted in a case, if what they said was relevant to the issue of the case, must be pre-qualified as a EXPERT on that issue, OR, the document cannot be submitted.
So EXPERTS testifying on some point, must have a job related to what the are testifying to, the day they testify. So people who are EXPERTS one day, if they change their job say to another field, can no longer testify as an EXPERT as they did in the past?
Freemam-Longo comment tucked into the TPG by the National Institute of Corrections, along with other valid studies cited and accepted in the McKune opinion, resulted in a LATER BELIEF -OR- CONSTRUCTION of McKune that sex offenders have a high recidivism rate when untreated? While McKune eludes to that belief, as do other courts, before and since, the question remains what is the source?
Other courts cite "High Recidivism of Sex Offenders" without the TPG document: See Doe v Pataki 120 F.3d 1263 (1997); Doe v Bredesen 507 F.3d 998 (2007); Simonson v Hepp 549 F.3d 1101 (2008); US v McLaurin 731 F.3d 258 (2013).Neither of these sources were even addressed by Essay authors, yet they were listed as resources in both McKune and Smith.
Now, two other resources appear in both McKune and Smith, which have been cited as sources for "High Recidivism of Sex Offenders" by other courts:
---Sex Offenses and Offenders 1997 and
---Recidivism of Prisoners Released in 1983,
See US v Dean 604 F.3d 1275 (2010); US v Beier 490 F.3d 572 (2007); Jones v Murray 962 F.2d 302 (1992). ("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").
There is no way TODAY to say McKune relied on "A statistic with no support."
Finally: Along comes 2003 and TWO chances to change the lingering court's belief about high recidivism rates of sex offenders.
The TWO cases came up for decision in March of 2003; SMITH v. DOE (Brief OSG) and CONNECTICUT DEPT. OF PUBLIC SAFETY v. DOE (Briefs OSG). Yes 2003 Smith v Doe diid cite McKune for the -still lingering belief/construction- that sex offenders have a high recidivism rate when untreated. Far too many folks forget McKune was about -in prison therapy- and not specifically recidivism; recidivism was merely part of the discussion of treated and untreated offender.
(Note: If 2003 Smith v Doe relied on a portion of McKune, that doesn't mean there is any problem with McKune. Whatever is appropriate for one may or may not be appropriate for the other.) And other things happened in 2003, in Smith, with respect to research about recidivism rates. That is covered in another 2005 paper.
Now, BEHIND the scenes in 2003 the Dep't of Justice was getting ready to publish NEWER sex offender statistics, new recidivism rates. Recidivism of Sex Offenders Released from Prison in 1994. One wonders what the Bureau of Justice process is when it is getting ready to publish a new study. Granted that study is the largest of its kind ever done, which included following all sex offender released in 1994, over 9,000 offenders for three years. When did the process actually begin and end? As best I can figure there was an overlap in the process and the 2003 cases coming up through the courts.
Unfortunately the DOJ didn't publish that study until November of 2003; too late for the high court to review and set the record straight. Is there any chance any of the lawyers -in 2003 cases- knew about this new recidivism study coming? We will never know.
When I heard about this new Essay I really had hopes someone did find an answer to overturn many of these laws, but as I point out above, there is much more work to get to, and holes to close. My hopes are still that someone will find a way, someday.
eAdvocate
The END!
