Way back in 2003, Justice Kennedy said in an opinion on a state sex-offense case that “the risk of recidivism posed by sex offenders is frightening and high.” Smith v. Doe, 538 U.S. 84 (2003). He backed this statement by saying that reoffense by sex offenders “has been estimated to be as high as 80%.” However, Kennedy`s statement was baseless and the 80% figure he cited actually had no basis in any evidence.
Over the years, experts have shown again and again that the Supreme Court`s 80% recidivism rate for sex offenders has never been proven and that it`s in fact the opposite: the rate of reoffense for sex offenders is one of the lowest, if not the lowest, of all crimes. In fact, the recent report by the U.S. Sentencing Commission showed that sex offenders commit a new sex offense just 4.3% of the time. While any new sex offense is horrible, sex offenders aren`t out running around committing new sex crimes 80% of the time, like the Supreme Court said.
So where did this 80% statistic come from? It was a comment in a 1986 article in Psychology Today, a mass-market magazine for the public and not considered a valid source for empirical evidence by psychology scholars. Digging deeper, it was an article written by a sex-offender counselor, Robert E. Freeman-Longo, who was trying to promote his sex-offender treatment program he was selling to state prisons in Oregon.
While experts and scholars have fully debunked this “frightening and high” myth, many people still believe it today. Courts routinely cite the high court`s “frightening and high” comment to deny any relief to sex offenders. While it may be a good tactic for a lower-court judge to do so in order to avoid being overturned by a higher court (after all, you can`t go wrong by citing the Supreme Court, the most noble court in the land … right?), it`s misleading because sex offenders are being denied the constitutional right to be heard in court in a meaningful way.
Some federal judges have bucked this “frightening and high” trend. In Does v. Snyder, 834 F.3d 696 (6th Cir. 2016), federal court of appeals judge Alice Batchelder criticized the “frightening and high” myth rather bluntly, noting there is “significant doubt case by recent empirical studies on the pronouncement in Smith that the risk of recidivism posed by sex offenders is `frightening and high.`” Others have agreed with Judge Batchelder. See, e.g., Doe v. Rausch, 461 F. Supp. 3d 747 (E.D. Tenn. 2020) (criticizing the Supreme Court`s “frightening and high” statement to find retroactive application of Tennessee`s sex-offender registry violated the Constitution).