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US Supreme Court Decisions and Sex Offender Legislation Journal of Criminal Law and Criminology Volume 103 | Issue 4 Article 3 Fall 2013 U.S. Supreme Court Decisions and Sex Offender Legislation: Evidence of Evidence-Based Policy? Christina Mancini Daniel P. Mears Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons Recommended Citation Christina Mancini and Daniel P. Mears, U.S. Supreme Court Decisions and Sex Offender Legislation: Evidence of Evidence-Based Policy?, 103 J. Crim. L. & Criminology 1115 (2013). https://scholarlycommons.law.northwestern.edu/jclc/vol103/iss4/3 This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/13/10304-1115 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 103, No. 4 Copyright © 2013 by Northwestern University, School of Law Printed in U.S.A. U.S. SUPREME COURT DECISIONS AND SEX OFFENDER LEGISLATION: EVIDENCE OF EVIDENCE-BASED POLICY? CHRISTINA MANCINI* & DANIEL P. MEARS** In the past two decades, the federal government and states have enacted a wide range of new laws that target sex offenders. A series of U.S. Supreme Court cases has addressed the constitutionality of such legislation and, in so doing, contributed to the current policy landscape. The Court’s influence is noteworthy in part because of the calls during this same time period for evidence-based policy. Does the influence, however, reflect not only the legal considerations that necessarily attend to these cases but also an accurate and balanced assessment of social science theory and research? We address this question by examining Supreme Court cases from 1991 to 2011 involving sex crime laws. The findings indicate that the Court demonstrates an awareness of scientific research by referencing it in almost all decisions involving sex offender legislation, yet the Court frequently overstates or misinterprets empirical findings. Implications for research and policy are discussed. * Christina Mancini, Ph.D., is an Assistant Professor at Virginia Commonwealth University’s L. Douglas Wilder School of Government and Public Affairs. She received her doctoral degree from Florida State University’s College of Criminology and Criminal Justice in 2009. Dr. Mancini has published several articles in Crime and Delinquency, Criminology, and other crime and policy journals. She is currently involved in studies examining the emergence and efficacy of sex offender policy, public opinion, race and perceptions about offending, and violent victimization. ** Daniel P. Mears, Ph.D., is the Mark C. Stafford Professor of Criminology at Florida State University’s College of Criminology and Criminal Justice. Dr. Mears conducts basic and applied research on a range of crime and justice topics, including studies of juvenile justice, “supermax” prisons, sentencing, and prisoner reentry. He has published in Criminology, the Journal of Research in Crime and Delinquency, and Justice Quarterly, and recently authored American Criminal Justice Policy (Cambridge University Press 2010). The authors thank Zach Sommers, Kelsey B. Shust, and their four anonymous reviewers for their helpful comments on an earlier draft during the Journal of Criminal Law and Criminology submission process. 1115 1116 CHRISTINA MANCINI & DANIEL P. MEARS [Vol. 103 TABLE OF CONTENTS I. INTRODUCTION .................................................................................... 1116 II. THE U.S. SUPREME COURT, POLICY, AND SOCIAL SCIENCE .............. 1119 III. SEX OFFENDER LAWS ....................................................................... 1121 IV. SEX CRIME LAWS AND THE U.S. SUPREME COURT .......................... 1123 V. THE PRESENT STUDY .......................................................................... 1125 VI. FINDINGS ........................................................................................... 1127 A. Sex Crime Prevalence ............................................................. 1128 B. Sex Crimes Involving Children ............................................... 1131 C. Sex Offender Treatment .......................................................... 1136 D. Sex Offender Recidivism and Reentry .................................... 1140 E. Effects of Sexual Victimization ............................................... 1147 VII. DISCUSSION AND CONCLUSION ....................................................... 1151 I. INTRODUCTION U.S. Supreme Court decisions constitute the “law of the land”—that is, they have the potential to affirm, modify, and even overturn public policy.1 For example, the 1972 decision Furman v. Georgia prohibited states from imposing capital punishment pursuant to statutes allowing unbridled discretion of the judge or of the jury,2 while the 1976 decision Gregg v. Georgia enabled them to resume using it.3 Such an influence on public policy historically has derived from the Court’s interpretation of contested constitutional issues. However, scholars have argued that the influence increasingly involves interpretation and use of social science research.4 The greater accessibility of such research, for example, “has made American law receptive to valid science to an unprecedented degree.”5 Indeed, the Court’s decision in Daubert v. Merrell Dow Pharmaceuticals6 requires courts to “evaluate the research methods supporting expert evidence and the principles used to extrapolate from that research to the task at hand.”7 1 See BARBARA ANN STOLZ, CRIMINAL JUSTICE POLICYMAKING: FEDERAL ROLES AND PROCESSES 4 (2002). 2 Furman v. Georgia, 408 U.S. 238, 239–40 (1972) (per curiam). 3 Gregg v. Georgia, 428 U.S. 153, 195 (1976) (holding that the concerns regarding arbitrary or capricious imposition of capital punishment can be addressed by carefully drafted statutes that ensure the sentencing authority is given adequate guidance). 4 See, e.g., Michael Heise, Brown v. Board of Education, Footnote 11, and Multidisciplinarity, 90 CORNELL L. REV. 279, 310–14 (2005). 5 David L. Faigman & John Monahan, Psychological Evidence at the Dawn of the Law’s Scientific Age, 56 ANN. REV. PSYCHOL. 631, 631 (2005). 6 Daubert v. Merrell Dow Pharm., 509 U.S. 579, 595–98 (1993). 7 Faigman & Monahan, supra note 5, at 654. 2013] EVIDENCE OF EVIDENCE-BASED POLICY? 1117 Thus, in addition to settling questions of law, judges and Justices must also be able to consider and assess social scientific research. This requirement presents substantial challenges for judges because legal education typically does not include training in research methods or statistics, or, by extension, instruction in how to interpret the results of empirical research studies, especially when such studies involve complicated questions involving research design, measurement, sampling, or analysis.8 Supreme Court Justice Antonin Scalia has emphasized this point. In his dissenting opinion in Roper v. Simmons, a case in which the Court prohibited the execution of juveniles, he remarked, “Given the nuances of scientific methodology and conflicting views, courts . are ill equipped to determine which view of science is the right one.”9 Notably, the problem is central to the Court’s decisions in cases that affect many prominent criminal justice policies. The findings from empirical research, for example, have been cited in such landmark cases as McCleskey v. Kemp (racial discrimination and capital punishment),10 Atkins v. Virginia (execution of the mentally handicapped),11 and District of Columbia v. Heller (gun control).12 This use of social scientific research in Court decisions has occurred as policymakers and practitioners have increasingly emphasized the importance of evidence-based policy,13 which draws on credible research to support the assumptions on which it is premised.14 Given the Court’s prominence in shaping policy,15 and its use of empirical research in some decisions,16 the question arises: How is the social scientific research 8 See generally John Monahan & Laurens Walker, Twenty-Five Years of Social Science in Law, 35 LAW & HUM. BEHAV. 72 (2011) (discussing case law that requires judges to assess the validity of the methods supporting expert evidence). 9 Roper v. Simmons, 543 U.S. 551, 618 (2005) (Scalia, J., dissenting). 10 McCleskey v. Kemp, 481 U.S. 279, 286–90 (1987) (discussing social science studies showing racial disparities in the imposition of the death penalty). 11 Atkins v. Virginia, 536 U.S. 304, 318 (2002) (citing psychological studies indicating that individuals with lower than average intelligence have more difficulty anticipating the consequences of their actions than those with higher intelligence). 12 District of Columbia v. Heller, 554 U.S. 570, 577 (2008) (citing empirical legal scholarship examining the interpretation of the Second Amendment). 13 See, e.g., Michael R. Smith & Geoffrey P. Alpert, Searching for Direction: Courts, Social Science, and the Adjudication of Racial Profiling Claims, 19 JUST. Q. 673, 699–701 (2002). 14 DANIEL P. MEARS, AMERICAN CRIMINAL JUSTICE POLICY: AN EVALUATION APPROACH TO INCREASING ACCOUNTABILITY AND EFFECTIVENESS 1 (2010). 15 See STOLZ, supra note 1, at 4, 5, 11. 16 See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 494 n.11 (1954) (citing an array of social science studies to support its opinion on the effect of segregation on children); see also Rachel F. Moran, What Counts as Knowledge?
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