Fact-Checking the Fact Checker

by Ed Whelan

In today’s “Fact Checker” column in the Washington Post, Michelle Ye Hee Lee tries to take issue with this passage from Justice Alito’s recent concurring opinion in Packingham v. North Carolina:

Repeat sex offenders pose an especially grave risk to children. “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, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

Alito’s second sentence quotes from Justice Kennedy’s 2002 opinion in McKune v. Lile. As Lee notes, Kennedy’s McKune opinion in turn cites a 1997 Bureau of Justice Statistics report that states:

Released rapists were 10.5 times more likely than nonrapists to have a subsequent arrest for rape. Prisoners who had served time for other sexual assaults were 7.5 times more likely than those who had not served time for sexual assault to be arrested for a new sexual assault.

Alito’s second citation is to Kebodeaux, which, as Lee puts it, “cites an updated version of the 1997 [BLJ] report,” a report that “is considered one the most comprehensive studies on sex offender recidivism.” Kebodeaux (again, still quoting Lee) “cites the report’s finding that released sex offenders were four times more likely to be rearrested for a sex crime than non-sex offenders, and 5.3 percent of sex offenders were rearrested for a sex crime within three years after release.” (Emphasis added.)

You’d think that all of this would be enough to demonstrate to Lee that Alito’s passage has things right. But then we get this strange paragraph from her:

On the surface, comparing 1.3 percent to 5.3 percent makes it seem like sex offenders are four times more likely to commit a sex crime after release. But the 1.3 percent represents 3,328 of 262,420 released non-sex offenders. So out of the total of 3,845 people arrested post-release on sex crimes, 13 percent were prior sex offenders.

Lee contends that the comparison in her first sentence somehow only “seem[s]” sound “[o]n the surface. But her next two sentences—the heart of her supposed refutation of Alito—don’t in fact refute it and instead commit the very “apples-and-oranges comparison” that she wrongly accuses Alito of.*

Lee’s supposed “gotcha” is that, because sex offenders are only a small portion of the overall population of criminal convicts, prior sex offenders account for only 13% of the people “arrested post-release on sex crimes.” But Alito never said the contrary. So Lee is fact-checking, and purporting to correct him on, a proposition of her own invention.

Lee proceeds to argue that the “rate of getting arrested for the same crime is lowest among sex offenders compared to non-sex offenders, with the exception of people convicted of homicide.” (Emphasis added.) I’ll take her word for it. But, again, she’s not disputing anything that Alito actually wrote.

Lee concludes that Alito “makes it seem like recidivism among sex offenders to be [sic] a uniquely bad problem.” (Emphasis added.) But Alito’s far narrower point, as his first sentence puts it, is simply that repeat sex offenders “pose an especially grave risk to children.” How does Lee imagine that the higher recidivism rates that she presents for fraud or motor-vehicle theft undermine that point?

* I tweaked this sentence about an hour after initial posting.

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