“Justice Alito’s misleading claim about sex offender rearrests”

The title of this post is the Washington Post’s “Fact Checker’s” assessment of a statement in Justice Alito’s concurrence in Packingham v. North Carolina about the recidivism rates of sex offenders.  We reprint excerpts because of the importance of the issue to the Supreme Court’s collateral consequences jurisprudence:

“Repeat sex offenders pose an especially grave risk to children. ‘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.’”
–Supreme Court Justice Samuel A. Alito Jr., concurring opinion in Packingham v. North Carolina, June 19, 2017

. . . . .

The Fact Checker normally doesn’t fact-check Supreme Court justices, and we certainly do not fact-check opinions. But the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.

What do the data show?

The Facts

There are many limitations in recidivism data for sex offenders, so it’s difficult to use rearrest rates to accurately measure their threat to public safety. Many sex offenses are not reported to police, so there are problems of underreporting. Rearrests are not the same as reconvictions or reincarceration, and researchers are inconsistent in their method of calculating recidivism. (This Department of Justice report offers a detailed look at limitations in sex offender recidivism data.)

Sex offenders have a relatively low rate of committing the same sex crime after being released from prison. Yet policymakers often base policies on rearrest rates or the fear that sex offenders are more likely than other convicted criminals to commit the same crime after release.

Alito’s claim in this opinion reflects a common misrepresentation of sex offender recidivism.

Alito quotes a sentence from an opinion by Justice Anthony M. Kennedy in the 2002 case McKune v. Lile: “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 are two citations. The first is a reference in McKune to a 1997 Bureau of Justice Statistics (BJS) report on recidivism among prisoners released in 11 states in 1983. The report found: “Released rapists were 10.5 times more likely than nonrapists to have a subsequent arrest for rape. Prisoners who had served time for other sexual assaults were 7.5 times more likely than those who had not served time for sexual assault to be arrested for a new sexual assault.”

The second citation is a 2013 Supreme Court opinion in United States v. Kebodeaux, which cites an updated version of the 1997 report. This report, published in 2003 using data from 1994, is considered one of the most comprehensive studies on sex offender recidivism. The 2013 opinion cites the report’s finding that released sex offenders were four times more likely to be rearrested for a sex crime than non-sex offenders, and 5.3 percent of sex offenders were rearrested for a sex crime within three years after release.

When you dig into the data, it’s clear Alito has fallen for an apples-and-oranges comparison — one that unfairly compares sex offenders to non-sex offenders.

The 5.3 percent figure represents 517 of the 9,691 released sex offenders in 1994. But that’s measured against a much larger pool of 262,420 non-sex offenders, of whom 1.3 percent were arrested for a sex crime.

On the surface, comparing 1.3 percent to 5.3 percent makes it seem like sex offenders are four times more likely to commit a sex crime after release. But the 1.3 percent represents 3,328 of 262,420 released non-sex offenders. So out of the total of 3,845 people arrested post-release on sex crimes, 13 percent were prior sex offenders.

Moreover, this comparison doesn’t tell you much about the dangers posed by sex offenders after release.

“The broad majority of all rearrests for all offenders are not for new sex offenses, so we would be better off looking at recidivism rates generally, and not just for new sex offenses,” said Marc Mauer, executive director of the Sentencing Project. “For example, if 90 percent of the rearrests of sex offenders were for homicide, that’s clearly very important and would outweigh the relatively modest proportion of new arrests for a sex offense.”

The rate of getting rearrested for the same crime is lowest among sex offenders compared to non-sex offenders, with the exception of people convicted of homicide.

The most recent prisoner recidivism data are in a 2014 BJS study of 404,648 prisoners released in 30 states in 2005. It shows the percentage of all prisoners who were arrested for the same type of crime within five years of release.

Here’s a breakdown (the corresponding percentages match the order of the bolded figures in the first bullet point):

  • Homicide: Among released prisoners whose most serious crime was homicide, 2.1 percent were rearrested for the same crime (homicide); 51.2 percent were arrested for any violent or property offense.
  • Rape or sexual assault: 5.6 percent; 60.1 percent.
  • Robbery: 13.1 percent; 77 percent.
  • Assault: 34.4 percent; 77.1 percent.
  • Burglary: 23.2 percent; 81.8 percent.
  • Larceny/motor vehicle theft: 41.4 percent; 84.1 percent.
  • Fraud/forgery: 29.7 percent; 77 percent.
  • Drug: 51.2 percent; 76.9 percent.

Most post-release arrest charges for prisoners released on rape or sexual assault involved property offenses or assault — not sex offenses.

This is not the first time that questionable interpretation of sex offender recidivism statistics found its way to a Supreme Court opinion. Kennedy wrote in his McKune opinion: “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent.” This traces back to one 1986 article in Psychology Today that had no research to back it up. Yet the 80 percent statistic even made its way to the Packingham case, and was included in an argument by a lawyer defending the North Carolina law. [Adam Liptak’s article commenting on the questionable validity of the argument made by counsel for North Carolina at oral argument is here.]

Ira Ellman, law professor at the University of California-Berkeley’s Center for the Study of Law and Society, wrote a detailed examination of the 80 percent figure. He wrote: “The label ‘sex offender’ triggers fear, and disgust as well. Both responses breed beliefs that do not yield easily to facts. Unfortunately, the Supreme Court has fed the fear. It’s become the ‘go to’ source that courts and politicians rely upon for ‘facts’ about sex offender recidivism rates that aren’t true.”

Ellman also was critical of Alito’s use of recidivism statistics in the Packingham opinion: “Where’s he getting his social science? From an old judicial opinion.”

A spokeswoman for the Supreme Court said: “As a matter of policy the Court does not comment on its opinions, which speak for themselves.”

The Pinocchio Test

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading. It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release. This makes it seem like recidivism among sex offenders to be a uniquely bad problem, but it is an apples-to-oranges comparison.

This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago. Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide. It does the public no service when the Supreme Court justices make a misleading characterization like this. We award Three Pinocchios.

Three Pinocchios