NARSOL WV Affiliate: Review of Two Frequently Cited SCOTUS Cases
With oral arguments before the Pennsylvania Supreme Court opening May 23, 2023, a member of the NARSOL affiliate in West Virginia looked at these two US Supreme Court (SCOTUS) cases which are cited so often, and prepared a brief review to share.
Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003).
This case has been cited 5,990 times in cases and court documents. Alaska’s SORA was challenged as being punitive and thus violating ex post facto (adding punishment after the fact) laws. The Federal 9th Circuit Court of Appeals found the act punitive. On grant of certiorari, the Supreme Court Justice Kennedy, held that the Act was nonpunitive and therefore its retroactive application did not violate the ex post facto clause. The case was reversed by SCOTUS on a 6-3 decision. The most commonly cited quote is the following paragraph:
Alaska could conclude 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.” McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002); see also id., at 33, 122 S.Ct. 2017 (“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” (citing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997))).
Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 1153, 155 L. Ed. 2d 164 (2003). NOTE: Smith v Doe has been cited 86 times with negative treatment (contrary findings) since 2003 in other court cases.
McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002).
This case has been cited 3,584 times in cases and court documents. Lile was challenging his Fifth Amendment right against self-incrimination by being compelled to admit his sexual assault in order to pass sex offender classes administered by the state while incarcerated in Kansas. Kansas prison officials ordered respondent to participate in a Sexual Abuse Treatment Program (SATP). As part of the program, participating inmates are required to complete and sign an “Admission of Responsibility” form, in which they accept responsibility for the crimes for which they have been sentenced. Here the Federal 5th Circuit agreed with Lile and the case was reviewed by SCOTUS. Supreme Court Justice Kennedy, held that adverse consequences faced by state prisoner for refusing to make admissions required for participation in sexual abuse treatment program were not so severe as to amount to compelled self-incrimination. The case was reversed by SCOTUS on a 5-4 decision. The most commonly cited quotes are the following:
Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism. See U.S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender xiii (1988) (“[T]he rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%,” whereas the rate of recidivism of untreated offenders has been estimated to be as high as 80%.
and …
The critical first step in the Kansas SATP, therefore, is acceptance of responsibility for past offenses. This gives inmates a basis to understand why they are being punished and to identify the traits that cause such a frightening and high risk of recidivism.
McKune v. Lile, 536 U.S. 24, 33–34, 122 S. Ct. 2017, 2025, 153 L. Ed. 2d 47 (2002) NOTE: McKune v. Lile has been cited 38 times with negative treatment (contrary findings) since 2002 in other court cases.
The recidivism battle will continue this week in oral arguments opening May 23 in the PA Supreme Court case in Commonwealth v.Torsilieri 2. The next quotes we see about recidivism from SCOTUS will likely come from this PA case.
FAC thanks Stephen for sharing this review. Stephen is a member of the NARSOL Affiliate in West Virginia.
Thank you for trying.
As part of my probation, I was required to attend a year long counseling at my own expense. It ended up being groups sessions which was not comfortable for some but for me I loved it as I am not shy at all. I was in fact so talkative that after 90 days, the counselor contacted my probation officer and said I had successfully completed the program and no further counseling would be any benefit to my success.
I kind of missed it but did not miss the $50 we had to pay in addition to our probation fees.
In ’91 my group sessions were 80+ miles one way, 3 days a week, and cost $50 per session. To “graduate,” we each had to pass a voice stress test. They kept holding me back because I maintain innocence despite no contest plea. Even if I were granted clemency, which would probably remove me from the registry, I’d still have to deal with the feds and it can never be expunged or sealed.
I too had to take and complete ” Sex offender group” before I would be able to get a parole. I was ” kicked out, removed” from this group because of what my ” Pre- sentence investigation ” report said that I was convicted of…it was wrong.
So, I was told that I was ” not ready” for group and I was removed. My first chance for parole came and I was told by the parole board that I ” had to get back into this group and gave me a two year continuance… denied Parole.
I filled a motion with the Court to correct my” PSI” because it was wrong and because of it being wrong I was removed from” group”.
I had to get an in person interview with the head of psych services to decide if I could get back on ” the list ” to be included in the next group.
I was able to show the Court that in fact my PSI was wrong, that I was ” acquitted ” of the charged offence but found guilty of the” lesser included ” offence….there are more details that I had to overcome. But, my point is, if u don’t complete the group, u will do your max sentence.
These cases are both based on flawed statistics. (*0% is factually incorrect).
But one of the things that Pennsyvania Commonwealth has been arguing is that the actual recidivism rate does not matter because the crime is so heinous. So they are basically saying that, even if the recidivism is only 5%, that 5% number represents a “high” figure (because of the heinousness of the crime and the disproportionate affect it has on society in general).
And they are saying that the Pennsylvania legislature has every right to determine what is a “high” number for recidivism because the term “high” is relative (to the heinousness of the crime).
But I believe that this is a bad argument (a nonstarter) because the law says clearly what the law says. The law says “high recidivism”, and that rate is relative to ALL recidivism, not just a subset.
Pennsylvania Commonwelth are twisting the plain facts!
They must register on the sex offender registry as part of an effort to prevent them from committing similar crimes again. However, multiple studies have deemed the registry has limited effectiveness, at best.
https://www.northcarolinahealthnews.org/2022/04/15/decreasing-sex-crimes-with-therapy-friendship/
I registered yesterday. About 4 hours later I got a call from someone claiming to be a deputy and said I was out of compliance and needed to meet to give a DNA sample. This shot off red flags for several reasons. First this guy was good, he was professional, well spoken, knew all the LEO lingo and knew ALL my information.
I advised him I had just registered a few hours earlier and there was no mention of this. He said they messed up and would be dealt with but in the meantime “Let’s get you back in Compliance”. Who uses that word other than a registry deputy? I stated I was hanging up and going down the sheriff’s office. BTW I have an unlisted cell phone #.
A few minutes later My Dad came in the room and said he got a call on the house phone (Which is listed) and my Dad said the deputy said the same thing to him that he needed to get his son to comply. I spent the next 3 hours on hold on the non emergency number for the sheriff’s office and finally hung up and made a police report online on the Sheriff’s website since no one answered.
I did call a lawyer and he verified it is fake and that if it was real after hanging up on the cop I would have already been in jail. I am sure the local number the scammer called from was a highjacked number. I looked it up and nothing came up.
I truly believe someone in the registry department has a boyfriend who they are giving info to, I just do not believe in coincidences.
To be clear, I gave him no info other than I had just registered, but he seemed to know everything already anyway. He never asked for money so not sure what the tactic was on the DNA unless to blackmail you having your DNA?
Yesterday about 230pm I received a call from number 904-640-5380. The voice on the other end was very somber and official, shared they were Det Moss from the Sherriff’s Office. Told I was under FBI investigation and had received a letter requiring I report to the local Registry Office. An appointment I missed and a warrant has been issued for my arrest. I replied “Oh no, when was this supposed to have happened?” I was told that is not of consequence since it has already passed. I could take care of my failure to appear by paying $3500 in cash or by prepaid credit cards. I was well Officer, what is your badge number? I was told that I didnt need to worry about his badge number, it would be on the arresting documents. I got really pissed… I responded with… How is this? Why dont you show up with the arresting officers, I cant wait to meet you in person. The “Det” said, well you have been warned, we are dispatching Officers now.”
The phone went silent. My blood pressure jumped off the charts. I called the Registry Office. I spoke with an Officer there and he said, “I hope you didn’t give them any money or information”. I filed a report and the two Officers I spoke with treated me with respect. One did say, “I can’t understand why someone on the registry would pay any money unless they have done something they need to hide.” I shared “Officer, Since I have ended up on the registry, there have been over 50 changes that each end with a felony conviction if found guilty. It is so confusing even your office has trouble keeping it straight. I understand why an innocent person will pay to keep the problem from escalating.” The Officer responded with that kinda makes sense. Have a great day.”
Remember, they won’t call. They will arrive to arrest you. The Judge will have the next ruling.
@ Big Al
Two things. Glad I am not the only one (Because this scam seemed to have died down)
And secondly, glad both of us had the sense to calm down and think things through. I am also glad FAC prepared us for this. Even though I use to work in Law enforcement, I just couldn’t believe this was not an inside job. This guy knew things about me even my parents don’t know. Why he called my parents is even more scary. Glad my Dad answered because my Mom would probably have fallen for it.
I meant to add in the past that anyone on the registry needs to watch what you throw in your trash. A condom or even dooky paper can be collected for DNA sample and blackmail. I set my trash early on the morning they pick up and set on the driveway in front of our security camera.