Sexual Predators

06/10/2002
The recidivism rate for sex offenders is the second lowest of all felons.

I have been asked to write concerning some thoughts and information that I have regarding the Sexual Predator statute of Ohio.  My thoughts are as follows:

Almost all courts to review the constitutionality of the statute have held the government's interest in protecting the public outweighs any restrictions placed on the citizen's right to privacy, equal protection, due process, or a wealth of other rights under which the statutes have been challenged as unconstitutional.  The majority of courts have found the reporting duties imposed, and community notification deriving therefrom, are not "punishment" and thus do not implicate ex post facto or double jeopardy concerns.  As previously stated, the challenges to the statutes have been prolific and inventive.  The majority have met with little success.

However, I believe there is a way to challenge the statutes and prevail at some level of the court system.

The influence of the alleged empirical data cited repeatedly during the debate in the legislature, i.e., sex offenders have a high rate of recidivism, at the time of the passing of the sexual predator statutes, was reflected in the statute's numerous legislators asserting this premise as the reason a government interest existed in extending control over released sex offenders.  The empirical data referred to does NOT exist, nor is it supported by available statistical data studying that recidivism.

As stated by four dissenting Judges in United States v. Mound, 157 F.3d 1153, 1154 (8th Cir. 1998), the recidivism rate for sex offenders is the second lowest of all felons.  Id. at 1154.  This is confirmed by two recent studies conducted by the Ohio Department of Rehabilitation and Corrections.  The first, a five year study, and the second, a ten year study.  In both the recidivism rate of sex offenders was found to be roughly 8%.  See, Five Year Recidivism Follow-Up of 1989 Sex Offender Release, ODRC, Office of Management Information Systems, Bureau of Planning and Evaluation.  Report issued August 1996; Ten Year Recidivism Follow-Up of 1989 Sex Offender Release, ODRC, Office of Management Information Systems, Bureau of Planning and Evaluation.  Report issued November, 2000.  Paul Konicek, researcher, was the principle author of both studies.

Citing to these reports, two female judges of the Eighth Judicial District Court of Appeals of Ohio expressed concern that the government interest underlying the sexual predator statutes is based on erroneous statistics and false assumptions not supported by statistics and reversed the finding of sexual predator status in State v. Krueger, Case No. 76624, (December 19, 2000).

Lastly, the United States Department of Justice Bureau of Justice Statistics also finds that sex offenders have the second lowest rate of recidivism of all offenders (7.7% nationwide).  See, NCJ-163392.  The only felons with a lower rate of recidivism are those convicted of murder (6.8% nationwide). 

What substantive due process concerns arise when a law that infringes upon a citizen's right to privacy is debated and passed based on a false assumption that statistically there is a compelling legitimate government interest in abridging that right?  Does it infringe upon the citizen's basic right to fundamental fairness between the citizen and the government if the government has passed a law infringing upon the citizen's right to privacy based on an "old wives tale" that is no more than an erroneous popular belief?

If as statistics show sex offenders have the second lowest recidivism rate of all released prisoners, what "government interest" is there in enforcing these laws that outweighs the citizens' right to privacy and to be free from public ostracizing?

Does the passing of such laws, based on false facts and false assumptions, constitute arbitrary and capricious government conduct violating substantive due process?

By enacting legislation based on false assumptions and an erroneous foundational premise, that is even repeated in the statute, has the government created an arbitrary class of persons singled out for different treatment and societal restrictions in violation of the Equal Protection Clause?  If the assumptions that sex offenders had a high rate of recidivism were true, the class of persons targeted would not be an arbitrary class.  However, since the assumptions are not supported by empirical data, is the class created thus arbitrary and violative of both due process and Equal Protection?

E-Mail Jim

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