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
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."