The Supreme Court’s Mixed Signals in Packingham

July 10, 2017,        Guest Post

by Bidish Sarma.  Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.
Near the end of the term, the Supreme Court handed down its decision in Packingham v. North Carolina.

The outcome was a slam-dunk victory for Mr. Packingham—a registered sex offender—and proponents of robust free speech protections around the country. The Court left no doubt about its commitment to protecting the First Amendment (all eight presiding justices agreed that the law at issue was unconstitutional), but it sent mixed signals about whether it would author a new chapter in its dealings with individuals convicted of sex offenses. This is an increasingly important question because for many years now sex offenders have been the target of unique, restrictive and hyper-punitive legislative schemes that raise deep constitutional questions. If the Court ducks these questions, similarly dubious laws may be used to target other groups, including individuals who have committed no crimes at all. Nobody seriously questions a legislature’s interest in protecting individuals from sexual violence. But, the time has come to ask whether society’s “war” on sex offenders who have already completed criminal sentences has gone too far.
Packingham involved a North Carolina statute that prohibited registered sex offenders from accessing an astounding range of websites (including news websites, WebMD and Amazon). The defendant was arrested for violating the law after he posted a message on Facebook praising God because a court had dismissed a traffic ticket without imposing any fine or other punishment. In striking down the sweeping restraint on internet use, Justice Kennedy’s majority opinion acknowledged the state’s interest in preventing sex offenders from using technology to facilitate crimes, but held that the “statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” The law’s breadth and the Court’s robust protection of free speech may best explain the result. Thus, Packingham may well be “the rare case” in which the Supreme Court rules in favor of sex offenders.
If, however, the Court is more broadly worried about laws that may infringe on the rights of people who have been convicted of sex offenses, the First Amendment is not the only amendment that requires judicial enforcement. Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”
Individuals who have seen or experienced the devastation wrought by society’s moral panic about sex offenders must feel a small measure of hope now that the Court has given a nod to the “troubling” restrictions so many endure. From a constitutional perspective, there is little doubt that the laws are damaging in a number of ways. Most plainly, they ensnare far more people than most of us realize. While the average person tends to think that an individual labeled a “sex offender” committed a violent crime like rape, thousands of the more than 747,000 registered sex offenders in the United States were convicted of crimes like public urination, streaking and consensual (but illegal) teenage sex.
Even setting aside this serious problem of the legal conflation of child molesters with teenage pranksters—a problem that poses a real public safety concern by undermining the utility of registries—state laws dealing with sex offenders who have already served time curtail liberty to an extreme degree. A subset of these offenders are subjected to civil commitment, meaning the state detains them in prison-like conditions (where they are theoretically treated for mental health problems that make them dangerous). In several states, this involuntary detention is indefinite. These people will die in state custody. Many states and localities also impose severe residency and travel restrictions on released sex offenders, making it so difficult to find living arrangements in some places that affected citizens are forced to live on the streets and under bridges. Research suggests that such laws may actually increase the odds that these individuals will commit crimes again.
Add to this mix the demanding registration and notification requirements placed on sex offenders. These laws severely punish a wide range of conduct, including failures to register, failures to pay registration fees and even failures to notify authorities of an intent to move to a new residence before and after the move. A powerful amicus brief filed by several highly-respected law professors in a recent case dealing with Michigan’s sex offender laws summarizes how this panoply of restrictions effectively banishes sex offenders from society. The state has
retroactively placed punitive and highly burdensome restrictions on those convicted of sex offenses, including extensive requirements to appear frequently in person at police departments, as well as restrictions on their movement, residency, and place of work. These restrictions stem automatically from their convictions, with no individualized determinations. These regulations are . . . punitive rather than regulatory in their effect.
The problem with this “punitive” approach is that the restrictions imposed are not part of a defendant’s criminal sentence; these individuals have already served their time and yet get punished again and again. Considering the laws we have passed, Professor Corey Rayburn Yung is certainly correct when he writes, “[i]t is difficult . . . to name a group in the United States that is more reviled than sex offenders.” So, the Court has good reasons to be worried about “troubling” and “severe” restrictions that have put a crushing weight on the lives of sex offenders. But, Packingham was not an all-around win for those disturbed by how we treat these people. In that case, we can see two indications that the Court continues to propagate the myth at the core of our nation’s moral panic: that individuals convicted of sex offenses are almost certain to commit more sex crimes if they are released.
The first flare came during the oral argument. At one point, Justice Sotomayor seemed to accept the basic claim that the sex offender recidivism rate is abnormally high. According to the argument transcript, she said “Yes. There’s a high statistical inference that recidivism will follow with one sexual crime to another . . . .” The second signal appeared in Justice Alito’s concurring opinion. In it, he wrote that “[r]epeat 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.’ McKune, supra, at 33 (plurality opinion) . . . .”
If the Court is looking to its own past for its understanding of sex offender recidivism, it is no wonder that the justices continue to embrace the myth that the recidivism rate is alarming. In 2002, in McKune v. Lile, the Court described the risk of sex offender recidivism as “frightening and high.” It went further, citing a Department of Justice publication for the proposition that “the rate of recidivism of untreated offenders has been estimated to be as high as 80%.” This astronomical number is certainly frightening. But, it is also blatantly wrong.
A number of experts, researchers and journalists have stepped forward in recent months to illuminate the Court’s profound misstep in McKune. In the New York Times in March, Supreme Court reporter Adam Liptak pointed out that the lawyer for North Carolina in Packinham stated during the oral argument that “[t]his court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again.” Liptak explains that “there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.” Professor Ira Mark Ellman and Tara Ellman excavated the truth about the source Justice Kennedy relied upon in McKune: the DOJ publication cited one source for the 80 percent figure, “an article published in 1986 in Psychology Today, a mass market magazine . . . [that used 80% as] a bare assertion: the article contains no supporting reference for it.”
David Feige recently compiled the real statistics:
The recidivism statistics the court cites are dead wrong as a matter of social scientific fact. In reality, sex offenders have among the lowest same-crime recidivism rates of any category of offender. Indeed, in the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent.
In short, the 80 percent number is pure rubbish. But, the Court’s elevation of that myth has caused a lot of damage in the past 15 years. Lower courts around the country have cited it over and over again to justify the raft of draconian laws used to restrict the liberty of individuals who have already paid their debts to society.
When North Carolina (and other states) attempted to justify restrictions on the right of sex offenders to access important websites by invoking claims about the recidivism rate, the Court had an opportunity to correct its previous error. Professor Melissa Hamilton produced an excellent article explaining that, with respect to the recidivism claims, the states’ legal representatives were either “naïve and uneducated” or “intentionally misleading” the Court. Yet, rather than seize the chance to clear things up, the Court continued down the trodden path. Justice Sotomayor appeared to agree with the claim of a “high statistical inference” of recidivism. And, though Justice Alito was careful not to cite directly the debunked 80 percent figure, the concurring opinion relied on McKune to emphasize the notion that sex offenders are uniquely dangerous. (A dispute about Alito’s factual claims arose when the Washington Post ran a fact-check that was subsequently challenged by the National Review. Professor Carissa Byrne Hessick best clears up the confusion when she explains that Alito’s opinion is misleading, but not for the reason the Washington Post identified: “Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate. The problem with this paragraph is . . . the claim ‘[r]epeat sex offenders pose an especially grave risk to children.’ . . . [T]he facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.”) Alito’s opinion is not misleading on the scale of the “frightening and high” farce, but it certainly pours more fuel on the fire that is the myth that sex offenders are bound to commit more offenses, particularly against our children.
More cases are coming. The Court recently asked the solicitor general to weigh in on a petition emerging from a Sixth Circuit opinion that actually struck down the Michigan laws mentioned earlier. (One does not need much of an imagination to predict how the “tough-on-crime” Trump Administration will come down on that question.) And, when the Court comes back to session after the summer recess, it will decide whether to review a case involving the Minnesota Sex Offender Program—a civil commitment scheme that confines over 700 individuals, and at the time of the class-action trial, had never released a single individual in two decades even though the state concedes that many offenders are no longer dangerous (the case materials can be found here). If the Court is genuinely concerned—and it should be—it can soon address the severe restrictions that dominate the legal landscape. Standing up for constitutional rights—even of very unpopular groups—is critical at a time when it looks like our nation could easily begin to tumble down the slippery slope of abridging them.

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