Recently, the Bureau of Justice Statistics released a report entitled, “Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow Up (2005-2014).”

“Notwithstanding the sensationalist headline (“three times as likely”), the statistics reported are actually quite favorable.

First, it’s important to note that this BOJ report is not based on samples of offender populations, as is the case in most of the academic research in this area. Rather, the report relies on data from the entire population of prisoners released from state facilities in 2005 (30 state, including NJ, were included in the analysis).

This means that when the report says there is a 7.7% sex offense recidivism rate among those with prior sex offense convictions, it is not an estimate of the recidivism rate based on statistical sampling, it’s the actual rate of recidivism for the population (in this case, as measured by arrests for a new sex offense).

Second, the arrest-based sex offense recidivism rate reported (7.7% over 9 years) is lower than the estimated rates obtained by most meta-analytic studies (ranging from 5-15% over 5 years). This means that the data most of us working in sex offense law have been sharing with prosecutors and the courts are overestimating the actual recidivism rate.

Third, there are other details in the study that impact our presentation of recidivism rates. While felons without a sex offense conviction were less likely to be arrested for a subsequent sex offense (2.3% v. 7.7%), there are a lot more of those ex-felons (381,093) than sex offenders (20,195) being released into the community. So in terms of risk to the public, a citizen is much more likely (six times more likely) to be sexually assaulted by an ex-felon without a sex offense than one with a sex offense.

Fourth, the BOJ study also reports that sex offenders who are arrested are less likely to be convicted (50%) than ex-felons with no sex offense history (70%) suggesting a law enforcement bias leading to more unjustified arrests of sex offenders, perhaps due to their higher visibility to law enforcement because of Megan’s Law. The reality is, in criminology research, it is well established for all types of offenses, that an individual convicted of a particular type of offense is more likely to re-offend with the same type of offense than with a different type of offense, which explains why sex offenders are 3 times more likely to commit a future sex offense than an ex-felon without a sex offense history. Nevertheless, the BOJ study reports that only 16% of all arrests for a sex offense by any ex-felon were committed by a sex offender. 84% of all such arrests were committed by an ex-felon with no sex offense history. Context matters, and statistics can easily mislead the public, law enforcement and even the Courts.

In fact, it was the prior 1997 BOJ study tracking offenders released in 1983 that resulted in Justice Kennedy’s assertion:

“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.” McKune v. Lile, 536 U.S. 24, 33, 122 S. Ct. 2017, 2024, 153 L. Ed. 2d 47 (2002). While a true statement, it ignored the fact that the reported recidivism rate for rape at the time was 7.7% — far from the 80% recidivism rate Justice Kennedy cited to (and ultimately sourced to a Psychology Today article, not a scientific study) in McKune v. Lile.

Finally, the BOJ study also establishes a baseline rate of sex offending (2.3%) among a non-sex offending population of ex-felons. This is very consistent with the research of Hanson, et al. (Reductions in Risk Based on Time Offense-free in the Community…, Psych., Pub. Ply. & Law, 24, 48-63), which found that over time, sex offenders reach a level of offending indistinguishable from the general population of ex-felons (a level he calls “desistance”) and thus cannot be justifiably treated differently from other ex-felons. For example, most lower risk sex offenders will reach that 2.3% recidivism rate five years after release, calling into question why they are treated differently than the 2.3% of non-sex offending ex-felons not subject to Megan’s Law.Properly analyzed, the 2019 BOJ study provides very useful data to counter prevalent assumptions and myths about sex offending.

The study clearly demonstrates that most sex offense recidivism is committed by young offenders (under 25 years old) and within the first 3 years of release. Rates of re-offense decline steadily over time offense-free in the community, and with age. This data would support various types of as-applied and facial challenges to Megan’s Law-type statutes and can be a useful tool in the arsenal of defense attorneys working in this area.