The “frightening and high” claim went unchallenged in the North Carolina case, but Liptak writes that may soon change, thanks to a 2016 federal appeals court decision.
Judge Alice M. Batchelder, writing for a unanimous three-judge panel, described “the significant doubt cast by recent empirical studies on the pronouncement in Smith that ‘the risk of recidivism posed by sex offenders is “frightening and high.’”
The appeals court struck down a particularly strict Michigan sex-offender law as a violation of the Constitution’s ex post facto clause, saying it retroactively imposed punishment on people who had committed offenses before the law was enacted. The state has asked the Supreme Court to consider the case, Does v. Snyder, No. 16-768. The first paragraph of its petition says that the risk of recidivism “remains ‘frightening and high.’”
The constitutional question in the case is interesting and substantial. And hearing the case would allow the court to consider more fully its casual assertion that sex offenders are especially dangerous.
Read Liptak’s full column in the New York Times.
Related: How the Supreme Court spread a false statistic about sex offenders.