From The Front Line
By: Jim Love
The best kept secret in today’s society. The truth has become pliable commodity in this nation, distorted to fit political agendas, preying, for the sake of votes, on the most unpopular of all crimes.
For the past year at Lebanon Correctional Institution I have been advising several prisoners facing Classification as a Sexual Predator on how I believe they can prevail at their hearings and avoid a sexual predator label. O.R.C §2950.02(A)(2) specifically gives the “high risk” of a convicted sex offender committing another sex offense after release from prison as the legislature’s “reason” the statute and reporting requirements are needed to protect the public. Statutes which infringe upon a citizen’s privacy must pass a “rational basis,” or “rational relationship” test. (See generally, West’s Digest, “Statutes”).
Before I start spouting statistics at you, I want to inform you that the only man at Lebanon Correctional Institution to follow my advice won at his Sexual Predator hearing. Instead of being required to report his address every 90 days for the rest of his life, and subjected to community notification of all persons within 1000 feet of his residence for the rest of his life, he was ordered to report his address once a year for the five years he was on post-release control only, with no reporting requirement after he is released from post-release control. Two other men tried to present the arguments below, and even sent their court-appointed attorneys the statistics below, but both attorneys ran “roughshod” over the men at their hearing and refused to present the following argument, even though prior to the hearing, the attorneys promised the men they would present the argument. The man who won had the cohunes to stand up in the courtroom and pull the following statistics out of his jumpsuit pocket, present it to the Court, and force the Court, on the record, to acknowledge his vocal claim the Sexual Predator Statute is “arbitrary and capricious” and “creates an arbitrary class of persons” in violation of the Equal Protection Clause of the 14th Amendment. Upon being presented with the following evidence and statistics, an “in-chambers” conference was immediately called, and upon returning from the conference, the Judge denied the prosecution’s request to find the man was a “Sexual Predator.”
So if any of you think what I have to say is worth using, be prepared to commit it to memory and present it yourself, because it appears the Public Defenders are in collusion with the State on this and will lead you on, mouthing what you want to hear before the hearing, then abandon the argument and fail to present it at the hearing. One PD just did that to a very good friend of mine at Warren Correctional.
In United States v. Mound, 157 F.3d 1153, 1154, (8th Cir. 1998) (en banc), four dissenting Judges cite Law Review articles citing statistics finding the recidivism rate of released sex offenders is the second lowest rate of recidivism of all convicted felons. In State v. Krueger, Case No. 76624 (December 19, 2000, Eighth Judicial District of Ohio, unreported), two female Judges reversed a Sexual Predator adjudication, finding the statute is based on a false assumption and in essence, an “old wives tale” of popular beliefs contradicted by empirical data.
By writing the National Criminal Justice Reference Center, P.O. Box 6000, Rockville, Maryland 20849-6000, you can obtain the following reports.
- NCJ-163392 (February 7, 1997), Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault, finds the recidivism rate of 2,214 convicted rapists released from prison was 7.7% after three years. The only category of crimes with a lower recidivism rate are those persons convicted of murder (6.8%).
- NCJ-193427 (June, 2002), Recidivism of Prisoners Released in 1994, finds the recidivism rate of 3,138 convicted rapists released from prison was 2.5% after three years. The only category of crimes with a lower recidivism rate are those persons convicted of murder (1.2%).
In April, 2001, the Ohio Department of Rehabilitation and Correction (ODRC) released a report also on the recidivism rate of released sex offenders. In Ten-Year Recidivism Follow-Up of 1989 Sex Offender Releases, Office of Policy, Bureau of Planning and Evaluation, Paul Konicek, Principle Researcher, (available at www.drc.state.oh.us), the recidivism rate of 879 sex offenders released from Ohio’s prisons in 1989, after ten (10) years, was found to be 8% for new sex offenses.
The ODRC study finds its results as typical, citing to:
1) Gibbons, Soothill, and Way, found in Furby, Weinrott & Blackshaw, 1989. (Twelve year study finding sex offender recidivism rate of 4%).
2) Gibbons, Soothill, and Way 1980, found in Furby, Weinrott & Blackshaw, 1989. (Thirteen year study finding sex offenders recidivism rate of 12%).
3) Hanson & Bussiere, 1996. (Mega-analysis of sixty-one sex offender studies with a total of 28,972 sex offenders finding recidivism rate for new sex offenses five years after release was 13.4%).
4) New York Department of Corrections, nine year follow-up study. Finding a 6% rate of recidivism for new sex offenses.
These studies are cited on page 11 of the ODRC report.
Page 15 of the report, the overall findings are summarized. The ODRC finds, “Contrary to the popular idea that sex offenders are repeatedly returning to prison for further sex crimes, in this population a sex offender recidivating for a new sex offense within 10 years of release was a relatively rare occurrence.” Id. at page 15, ¶ 4.
The entire purpose of the Sexual Predator, or “Megan’s” Laws is to protect the public from sex offenders, who, according to the “compelling government interest” expressed in the statute at section (A)(2), have a “high risk” of committing new sex offenses once released from prison. Since this stated purpose is not supported by empirical data and statistics from both the United States Department of Justice, Bureau of Justice Statistics, and from the Ohio Department of Rehabilitation and Correction, the “rational basis” underlying the Sexual Predator Statute does not exist. It must therefore fail the “rational basis test” of constitutionality, and it therefore acts to create an “arbitrary and capricious class of persons” subjected to an infringement on their right to privacy, placed on public display for public ostracizing and ridicule, and subjected to reporting requirements to local police agencies and community notification laws, without a legitimate and compelling government interest, in violation of the Equal Protection Clause of the 14th Amendment, and the protections afforded by the substantive due process clause of the 5th and 14th Amendments, that is, the right to be free from arbitrary and capricious government conduct infringing upon your right to liberty, association and happiness.
The low recidivism rate of sex offenders is the best kept secret in today’s society. The politicians are lying. The Courts are lying. In McKune v. Lile, 122 S.Ct. 2017, 2024 (2002), the United States Supreme Court cites to the DOJ’s 1997 report on Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault, for the finding that sex offenders have a “high risk of recidivism.” Yet this report, cited above, finds the recidivism rate of released sex offenders for new crimes as 7.7%, and that rate is the second lowest rate of recidivism of all released offenders in the study. The context in which the study is cited gives the opposite inference in a manner that is misleading to the reader of the decision. It is a false rationalization of a bad decision.
Most dangerous of all is what these lies do to trials when a man who was once previously convicted of a sex offense faces actual false charges later in his life brought by someone who knows about his past convictions
Judges, in performing the balancing test of “probative v. prejudicial” under Evidence Rule 403, wrongfully assume testimony of a previous sex offense conviction has a “high” probative value, and allow the evidence to be presented by the prosecution. The new Federal Rules of Evidence 412-415 were enacted based on a false presumption that past sex offenses have high “probative” value. And juries, God help us all, misinformed about the true facts and statistics through the media, prosecutorial “sound bite” press releases, and TV shows like “America’s Most Wanted,” “Law and Order: Special Victims Unit,” and even the now-canceled “First Monday” (which stated the recidivism rate of sex offenders was 80% in its next to the last show), hear evidence a man committed a sex crime 10,15, 20, or 30 years ago, and quit even listening to the evidence presented at the trial.
The truth has become pliable commodity in this nation, distorted to fit political agendas, preying, for the sake of votes, on the most unpopular of all crimes, just as for years these same people have ranted about prisoners in general, and worked to take what few amenities we are allowed away from us.
I guess the last to go was the presumption of innocence. It is not merely perfidious to outright falsify statistics to justify government intrusion into the privacy of citizens, it undermines the very foundation of the ideal of Equal Justice and Rule of Law upon which this nation, and the International Community of Nations is founded. Intellectual dishonesty abounds in both the Republican owned media and in the Courts of this nation, now controlled by the ultra-conservative appointees of Reagan, Bush and mini-Bush. The latter who placates the ultra-conservative wing of the Republican party by handing them control of the Federal Courts, assisted by Orrin Hatch and Trent Lott. In place of Equal Justice we have the appearance of justice, carefully propagated in selected published opinions overshadowed by those unpublished opinions hiding the injustices dominating the majority of the convictions deemed too sordid in nature to be entitled to an honest and careful review for error by those self-righteous demigods called Judges. Not all are bad. But too many are bad now. The pendulum has swung too far. The flag should be flown upside-down. We are in serious trouble in this nation.