Saturday, August 22, 2015

Radley Balko: How a Dubious Statistic Convinced U.S. Courts to Approve of Indefinite Detention (Civil Commitment of Sexually Violent Predators)

How a dubious statistic convinced U.S. courts to approve of indefinite detention, August 20, 2015
By Radley Balko

In the 2002 case McKune v. Lile, the Supreme Court upheld a Kansas law that imposed harsher sentences on sex offenders who declined to participate in a prison rehab program. The substance of the Kansas law the court upheld isn’t as important as the language the court used to uphold it. In his opinion, Justice Anthony Kennedy reasoned that they pose “such a frightening and high risk of recidivism” which he wrote “has been estimated to be as high as 80%.” Five year earlier, in Kansas v. Hendricks, the court allowed the states to detain sex offenders found to have a “mental abnormality” can be continued to be held indefinitely under civil commitment laws, even after they’ve served their sentences. The majority justified its decision by explaining that commitment hearings are administrative, not criminal, and the intent of such laws is treatment, not punishment. 

The year after the McKune decision, the court then upheld an Alaska law that puts sex offenders on a public registry, even those who were convicted before the law was passed, which would seem to be a violation of the Constitution’s prohibition of ex post facto laws. Here too, Justice Kennedy noted 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.'” 

In a forthcoming article in Constitutional Commentary, Ira Mark Ellman and Tara Ellman note that Kennedy’s magic words about the recidivism rate of sex offenders — frightening and high — have been cited 91 times by courts around the country, most in the course of upholding state laws allowing for severe ex post facto punishments that can last from years, to decades, to a lifetime. They include registration requirements for which compliance can range from burdensome to impossible; residency restrictions that effectively restrict ex-offenders to living in the shadows (or under a bridge); and restrictions that can make it nearly impossible to find a job, forge meaningful relationships, worship, or generally participate in civilized life. 

The scary thing is, as the Ellmans explain, there’s no empirical data to support Kennedy’s oft-cited phrase, and the statistic Kennedy himself cited is paper thin.