SHINING A FALSE LIGHT
The US Department of Justice and the Misleading Claim of “Sex Offenders are X Times More Likely To Be Rearrested”
Derek W. Logue of OnceFallen.com
Created: 11 June 2019
On May 30, 2019, the US Department of Justice released a report entitled “Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14),” a study that followed prisoners throughout the nine years after their release in 2005, comparing prisoners whose most serious offense was rape or sexual assault to other prisoners. The report is the third of a series of DoJ studies on recidivism rates of people convicted of sexual offenses. The report has numerous positive results that solidify what we already know about people convicted of sexual offenses:
- Those convicted of sex offenses were less likely than other released prisoners to be arrested during the 9 years following release
- The longer those convicted of sex offenses went without being arrested after release, the less likely they were to be arrested during the 9-year follow-up period.
- The majority of arrests for a specific type of crime did not involve those who had been in prison for the same type of offense.
- At the end of the 9-year follow-up period, males convicted of sexual offenses had a lower cumulative arrest percentage than all male prisoners.
- The number of people previously convicted of sexual offenses were rearrested at an average annual rate of less than 1% per year.
This biggest problem with the Department of Justice report is the press release, entitled, “RELEASED SEX OFFENDERS WERE THREE TIMES AS LIKELY AS OTHER RELEASED PRISONERS TO BE RE-ARRESTED FOR A SEX OFFENSE.” This statistic was cherry-picked from the various statistics discussed in the article specifically because it elicits the most negative response from the average reader. This statement is nonsensical because people not previously convicted of a sexual offense cannot be “rearrested” for a sexual offense.
In some states, a “false light” statement is a defamatory statement when you take even a statement based in truth and distort that truth by presenting that statement in a way that promotes a falsehood. Or, to put another way, “false light concerns untrue implications rather than directly false statements.” This statement is dangerous specifically because it paints an erroneous picture of people convicted of sex crimes as being a particularly unique danger to society. Justice Anthony Kennedy wrote in McKune v Lile, “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.” This statement was later used in Smith v. Doe, the landmark decision that declared the public sex offense registry was merely a regulatory measure. There are a few caveats to this narrative to put this statement into perspective:
- Overall, arrests for sexual offenses among prisoners of any type are extremely low. People convicted of sexual offenses commit less subsequent sexual offenses than other offenders convicted of similar crimes (such as a burglar committing subsequent burglaries or a drug offender committing subsequent drug offenses.)
- When using the total number of released prisoners as opposed to percentages of offense types, more people convicted of non-sexual crimes will be arrested for a sexual offense than those convicted of sexual offenses.
- Later studies fail to show reconviction rates, a superior standard for determining recidivism rates than rearrest rates.
THE BUREAU OF JUSTICE STATISTICS (BJS) REPORTS
As of May 2019, there are currently three recidivism studies released by the US Department of Justice’s Bureau of Justice Statistics. The first of the three studies was cited by Justice Kennedy in McKune v Lile and later in Smith v Doe. These three studies are not of the same group and thus not a continual study; each study overs a separate group of released inmates:
- Study 1: “Recidivism of Sex Offenders Released from Prison in 1994”: Released in November 2003, this study covered recidivism rates both re-arrest and reconviction rates over a three-year period. Of all the recidivism studies published over the past two decades, this study is among the most often cited.
- Study 2, “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010.” Published in April 2014, this report covers re-arrest and reconviction rates over a five-year period. However, the statistic covering sex offense rearrests are found not in the main article, but in a supplemental report.
- Study 3, “Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14) : The most recent of the three BJS recidivism, published May 2019, articles covers re-arrest records over 9 years. Interestingly, the study only briefly mentions reconviction rates but does not offer hard numbers specific to sexual offense-related arrests.
These reports discuss both overall recidivism (arrests for any type of crime, which may include parole/ probation violations) and sex offense-specific recidivism. Many current articles refer to subsequent arrests/ convictions for any crime as “recidivism” and subsequent arrests/ convictions for sex offenses as “re-offense.” Casual readers tend to get confused when reading recidivism studies because the two terms are used interchangeably in discussions about the likelihood a person previously convicted of a sexual offense may commit a subsequent sexual offense.
Please note that each of the three studies follow a different group of prisoners each time. The intent with this report is to show a clear pattern of low re-offense rates among those previously convicted of sexual offenses.
RE-OFFENSE RATES FOR THOSE PREVIOUSLY CONVICTED OF SEX CRIMES IS EXTREMELY LOW
Re-arrest and reconviction rates for those previously convicted of a sexual offense are extremely low. Even after nine years, none of the three studies reported cumulative rates in the double digits.
Table 1: Overall Re-Arrest Rates for Prisoners Previously Convicted of Sexual Offenses (Asterisks denote estimates based on percentages given)
Study 1 listed both re-arrest rates and reconvicted rates while Studies 2 and 3 do not specifically list reconviction rates. Thus, reconviction rates were devised by dividing the re-arrest rates by the percentage of overall reconvictions. There is a clear and consistent pattern where only about half of re-arrests led to a reconviction. Even so, recidivism rates are very low when adjusted into an average annual rate:
Table 2: Annual Average Re-Arrest Rates for Prisoners Previously Convicted of Sexual Offenses
These studies have used misleading language to imply that people convicted of sexual offenses are an ever-increasing threat to the public. Study 3 states, “The cumulative arrest percentage among released sex offenders increased 18 percentage points when the follow-up period was extended from 3 to 9 years. About half (49%) of prisoners released after serving time for rape or sexual assault were arrested within 3 years, while 62% were arrested within 6 years.”) This statement refers to overall arrest rates rather than arrests for sexual offenses.)
In truth, this statement has confirmed other studies that have consistently stated that the likelihood a person convicted of a sexual offense lowers over time. To put a different way, overall re-arrest rates for any crime type including technical violations were 49% in the three years after release; only 13% were arrested between three and six years following release, and only 5% were arrested between six and nine years after release.
For sexual offense-specific re-offense, Table 5 from Study 3 proclaims 4.4% of people previously convicted of sexual offenses were rearrested a subsequent sexual offense within the first three years, and 7.7% after 9 years. After three years, 1.2% of released prisoners not previously convicted of a sexual offense were arrested for a sexual offense after three years, and 2.6% were arrested for a sex offense after nine years.
Table 3: Re-arrest rates by year in the BJS 9-year study
Since Study 3 noted only half of the rearrests lead to a conviction, the reconviction rates, if consistent with the re-offense rate pattern in Study 3, would look like this:
Table 4: Estimated re-conviction rates in the BJS 9-year study
There is another problem with this study that must be pointed out. Study 3 only used the number of released prisoners that were currently in jail on a sexual offense; they did not count among the numbers a person with a prior offense but was currently incarcerated for any other crime type:
“Among the 25,948 prisoners released in 2005 whose most serious commitment offense was not rape or sexual assault but who had at least one prior arrest for rape or sexual assault, 6.7% were arrested for rape or sexual assault during the 9 years following release (not shown in tables). Of those prisoners released after serving time for offenses other than rape or sexual assault who had no prior arrests for rape or sexual assault, 2.0% were arrested for rape or sexual assault during the 9-year follow-up period. Overall, a combined total of 46,144 prisoners released in 2005 either had been serving time for rape or sexual assault (20,195) or had been serving time for another type offense but had previously been arrested for rape or sexual assault (25,948). Of these 46,144 released prisoners, 7.2% were arrested for rape or sexual assault during the 9 years following release.”
That would mean the cumulative reconviction rate over a 9 year period for anyone previously convicted of a rape or sexual assault is actually about 3.6%, so the chances of a person previously convicted of a sexual offense after being free nine years being convicted of a subsequent rape/sexual assault is actually 0.046%.
The finding of a decrease in recidivism the longer a former prisoner has been free is consistent between the BJS studies and similar recidivism studies. A 2009 NY Recidivism study found that sex offence recidivism rates after 1 year were 2%, 3% after five years, 6% after 5 years, and 8% after 8 years. A 2008 California study found a 2.21% recidivism after 1 year of release, 2.94% recidivism after 2 years of release: 3.3% recidivism after 5 years of release, and 3.38% after 10 years of release. The study concluded, “The total of sexual recidivists is lower than some might have believed. Most re-offenses and parole violations occur in the initial period of reentry after release. Sex offenders are more likely to commit some other type of offense than to commit a new sex offense.” A 2014 Harris and Hanson study found that for every five year increment a person classified as a “high risk” to re-offend is free, the rate of re-offense is reduced by half; in time, even those deemed a “high risk” held a risk of re-offense no higher than a prisoner released for a non-sexual offense.
By dividing 7.7% from 2.6%, we get the BJS proclamation that “sex offenders are three times more likely to re-offend.” (When citing the Study 1, the claim is “four times more likely”.) This statistic is nonsensical. As noted by the Washington Post fact-
“Sex offenders have a relatively low rate of committing the same sex crime after being released from prison. Yet policymakers often base policies on re-arrest rates or the fear that sex offenders are more likely than other convicted criminals to commit the same crime after release… When you dig into the data, it’s clear Alito has fallen for an apples-and-oranges comparison — one that unfairly compares sex offenders to non-sex offenders.”
OVERSTIMATING THREAT LEVELS POSED BY THOSE CONVICTED OF SEXUAL OFFENSES
This misleading statistic implies there is some unique threat of sexual crimes caused by people previously convicted of a sexual offense. Interestingly, the latest study does not often provide exact numbers but percentages, making pinpoint accuracy of the statistics rather difficult. However, whether shown by hard numbers or percentages, sex crime convictions represent only a small portion of the total number of released prisoners in the studies.
Table 5: Total number of arrests for subsequent sexual offenses (Asterisks denote estimations based on percentages given)
A look at actual numbers rather than percentages turns the narrative of “sex offenders” being “three times more likely to be re- arrested.” In Study 1, about six times as many released prisoners without a prior sex offense were arrested within three years of release for a sex crime compared to those with a previous sex offense record. In study 3, about four times as many released prisoners without a prior sex offense were arrested within nine years of release for a sex crime compared to those with a previous sex offense record.
To put this in perspective, a 2008 study of arrests in New York State found that “over 95% of all sexual offense arrests were committed by first-time offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully reduce sexual offending.” Incidentally, people serving time for rape and sexual assault comprised only about 5% of the 401,288 inmates released from the 30 states studied in Study 3.
All prisoners convicted of a crime have some degree of specialization, meaning a person convicted of robbery might be more likely to commit a subsequent robbery than a non-robber, a drug offender might recommit a drug offense, etc. Because the focus has been on people convicted of sex offenses, society believes “sex offenders” have a uniquely high rate of specialization, hence the sex crime-specific study. However, all offenders types specialize, and all but homicide offenders were rearrested their specific crime type at higher levels than people previously convicted of sexual offenses.
Five year re-arrest rates for the same offense types by prisoners released in 2005:
- Homicide: 2.1%
- Rape/ Sexual assault: 5.6%
- Robbery: 13.1%
- Burglary: 23.2%
- Fraud/ Forgery: 29.7%
- Assault: 34.4%
- Larceny/ Motor Vehicle Theft: 41.4%
- Drug Offenders: 51.2%
- “Public Order Offenses”: 59.6% 
The findings that people convicted of sexual offenses are less likely to commit the same crime as other offense types are consistent with other studies. A 4-year follow-up of Michigan parolees found that only 2.46% of people convicted of sex crimes committed a subsequent sex offense; 10.56% of burglary offenders committed a new burglary; 6.42% of drug offenders committed a new drug offense; 5.17% of robbers committed a new robbery offense. 
Furthermore, people convicted of sex crimes had a lower rate of overall arrests than any other crime type other than homicide:
Five-year overall re-arrest rate for any crime by type of offender:
- Homicide: 51.2%
- Rape/ Sexual Assault: 60.1%
- Public Order: 73.6%
- Drug: 76.9%
- Robbery: 77%
- Fraud/ Forgery: 77%
- Assault: 77.1%
- Burglary: 81.8%
- Larceny/ motor vehicle theft: 84.1% 
Why did the later report remove the hard numbers and only commented on reconviction rates in passing? Why did the BJS write a headline focusing on an intentionally misleading and pointless statistic? Why did the BJS not highlight the extremely low reconviction rates of people previously convicted of sex crimes? We can only speculate on motives. At the least, the BJS has engaged in misrepresentation of the BJS’s own statistics.
If there is any doubt that the SMART Office has a vested interest in propagating this myth, then their reply to the Washington Post article should remove that doubt. In defending this misleading claim, the SMART Office responded:
“The author asserted that Justice Alito’s statement on rearrest rates was a ‘misconception of sex offender recidivism.’ The data actually show that his statement is true, and more recent data on sex offender recidivism confirms higher rates of recidivism for certain types of sex offenders. Further, Justice Alito’s assertion, ‘Repeat sex offenders pose an especially grave risk to children,’ is valid for two reasons: 1) sex offenders who target boys and girls have higher rates of recidivism than other sex offenders and 2) we as a society have a particular responsibility to protect children from sexual assault.”
The SMART Office used two other studies showing higher re-arrest rates, including a multinational study that does not accurately portray American re-offense rates and mixes re-arrest rates and reconviction rates. The second statement made by SMART about society’s need to protect children from sexual assault has no bearing on the statistics but shows the intent of the SMART Office as promoting a high recidivism rate to support a personal agenda.
To review this critique of the “unique threat” myth:
- People convicted of sex crimes commit subsequent sexual offenses at an extremely low rate, i.e., less than 1% are reconvicted annually.
- If you look at the number of released prisoners who subsequently commit a sex offense, chances are the offender has no previous sex crime conviction.
- People convicted of sex crimes engage in a subsequent sex crime less often than a person convicted of a particular non-sexual offense commits a subsequent sexual offense, such as a burglar engaging in a subsequent burglary.
- The 2019 BJS study omitted reconviction rates, a superior standard to re-arrest rates. This leads the reader into believing sex crime rates are higher than average.
The Washington Post said it best:
“The reference to sex offender rearrest trends in Alito’s opinion is quite misleading. It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release. This makes it seem like recidivism among sex offenders to be a uniquely bad problem, but it is an apples-to-oranges comparison.”
“This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago. Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide. It does the public no service when the Supreme Court justices make a misleading characterization like this. We award Three Pinocchios.”
- Mariel Alper, Ph.D.,and Matthew R. Durose. “Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14).” BJS.gov. May 2019. Accessed 8 June 2019 At https://www.bjs.gov/content/pub/pdf/rsorsp9yfu0514.pdf
- “RELEASED SEX OFFENDERS WERE THREE TIMES AS LIKELY AS OTHER RELEASED PRISONERS TO BE RE-ARRESTED FOR A SEX OFFENSE.” US Dept. of Justice Press Release. 30 May 2019. Accessed 8 June 2019 at https://ojp.gov/newsroom/pressreleases/2019/ojp-news-05292019-a.pdf
- “False Light.” Digital Media Law. Accessed 8 June 2019 at http://www.dmlp.org/legal-guide/false-light
- MCKUNE V. LILE, 536 U.S. 24 (2002)
- Patrick A. Langan, Ph.D., Erica L. Schmitt, and Matthew R. Durose. “Recidivism of Sex Offenders Released from Prison in
1994.” US Dept of Justice, Bureau of Justice Statistics. Nov 2003. Accessed 8 June 2019 at https://www.bjs.gov/content/pub/pdf/rsorp94.pdf
- Matthew R. Durose, Alexia D. Cooper, Ph.D., and Howard N. Snyder, Ph.D. “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010.” US Dept of Justice, Burau of Justice Statistics. April 2014. Accessed 8 June 2019 at https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf
- “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010: Supplemental Tables: Most serious commitment offense and types of post-release arrest charges of prisoners released in 30 states in 2005.” BJS.gov. Dec 2016. Accessed 9 June 2019 at https://www.bjs.gov/content/pub/pdf/rprts05p0510_st.pdf
- Supra., Note 1
- BJS 2019 “Highlights”. This is consistent with other findings presented by the BJS. See “FAQ Detail: What is the probability of conviction for felony defendants?: BJS.gov, accessed 11 June 2019 at https://www.bjs.gov/index.cfm?ty=qa&iid=403. “Among felony defendants whose cases were adjudicated within the one-year tracking period (89% of cases), 68% were convicted. This includes a 59% felony conviction rate with the remainder receiving misdemeanor convictions. Felony conviction rates were highest for defendants originally charged with motor vehicle theft (74%), a driving-related offense (73%), murder (70%), burglary (69%), or drug trafficking (67%). They were lowest for defendants originally charged with assault (45%).”
- BJS 2019, p.5
- New York State Division of Probation and Correctional Alternatives. “Research Bulletin: Sex Offender Populations, Recidivism and Actuarial Assessment.” 2009. <https://web.archive.org/web/20110724103338/http://theparson.net/so/NYsomgmtbulletinmay2007.pdf>
- California Dept. of Corrections. “Recidivism of Paroled Sex Offenders- A 10 year study [Chart].” 2009. Found online at <http://www.defenseforsvp.com/Resources/Cal_gov/CASOMB_RECIDIVISM_STUDY_10_YEAR_w-Graph.pdf>
- R. Karl Hanson, Andrew J. R. Harris, Leslie Helmus and David Thornton. “High-Risk Sex Offenders May Not Be High Risk Forever.” J Interpers Violence, 2014 29: 2792 originally published online 24 March 2014. pgs.2796-2801
- Michelle Ye Hee Lee. “Justice Alito’s misleading claim about sex offender rearrests.” Washington Post. 21 June 2017. Accessed 10 June 2019 at https://www.washingtonpost.com/news/fact-checker/wp/2017/06/21/justice-alitos-misleading-claim-about-sex-offender-rearrests/
- Sandler, Jeffrey & J. Freeman, Naomi & Socia, Kelly. (2008). Does a Watched Pot Boil? A Time-Series Analysis of New York State’s Sex Offender Registration and Notification Law. Psychology, Public Policy, and Law. 14. 284-302. 10.1037/a0013881.
- BJS 2019, p.3
- Supra., “2005-2010 Supplemental tables”, Table 2.
- Michigan Dept. of Corrections (2000). Recidivism Statistics: from Annually Published Michigan Dept. of Corrections, Statistical Reports (Parole Board) Cumulative Parole Board Statistics for Parolees 1990 through 2000.
- Supra, “2005-2010 Supplemental tables”, Table 2.
- “Response from SMART/DOJ, June 23, 2017.” Accessed on 11 June 2019 at https://docs.google.com/document/d/1q3M0m_0hhySzmC4pqw0j2y0432O7mK780iNxclHdU3o/edit
- Supra., Note 14