Friday, September 4, 2015

How a Dubious Statistic Convinced U.S. Courts to Approve of Indefinite Detention
"In the 2002 case McKune v. Lile, the Supreme Court upheld a Kansas law that imposed harsher sentences on sex offenders who declined to participate in a prison rehab program. The substance of the Kansas law the court upheld isn’t as important as the language the court used to uphold it. In his opinion, Justice Anthony Kennedy reasoned that they pose 'such a frightening and high risk of recidivism' which he wrote 'has been estimated to be as high as 80%.'

In a forthcoming article in Constitutional Commentary, Ira Mark Ellman and Tara Ellman note that Kennedy’s magic words about the recidivism rate of sex offenders — frightening and high — have been cited 91 times by courts around the country, most in the course of upholding state laws allowing for severe ex post facto punishments that can last from years, to decades, to a lifetime....

The scary thing is, as the Ellmans explain, there’s no empirical data to support Kennedy’s oft-cited phrase, and the statistic Kennedy himself cited is paper thin."

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