Academic journal article Journal of Criminal Law and Criminology

U.S. Supreme Court Decisions and Sex Offender Legislation: Evidence of Evidence-Based Policy?

Academic journal article Journal of Criminal Law and Criminology

U.S. Supreme Court Decisions and Sex Offender Legislation: Evidence of Evidence-Based Policy?

Article excerpt

TABLE OF CONTENTS  I. INTRODUCTION II. THE U.S. SUPREME COURT, POLICY, AND SOCIAL SCIENCE III. SEX OFFENDER LAWS IV. SEX CRIME LAWS AND THE U.S. SUPREME COURT V. THE PRESENT STUDY VI. FINDINGS    A. Sex Crime Prevalence    B. Sex Crimes Involving Children    C. Sex Offender Treatment    D. Sex Offender Recidivism and Reentry    E. Effects of Sexual Victimization  VII. DISCUSSION AND CONCLUSION 


U.S. Supreme Court decisions constitute the "law of the land"--that is, they have the potential to affirm, modify, and even overturn public policy. (1) For example, the 1972 decision Furman v. Georgia prohibited states from imposing capital punishment pursuant to statutes allowing unbridled discretion of the judge or of the jury, (2) while the 1976 decision Gregg v. Georgia enabled them to resume using it. (3) Such an influence on public policy historically has derived from the Court's interpretation of contested constitutional issues. However, scholars have argued that the influence increasingly involves interpretation and use of social science research. (4) The greater accessibility of such research, for example, "has made American law receptive to valid science to an unprecedented degree." (5) Indeed, the Court's decision in Daubert v. Merrell Dow Pharmaceuticals (6) requires courts to "evaluate the research methods supporting expert evidence and the principles used to extrapolate from that research to the task at hand." (7) Thus, in addition to settling questions of law, judges and Justices must also be able to consider and assess social scientific research.

This requirement presents substantial challenges for judges because legal education typically does not include training in research methods or statistics, or, by extension, instruction in how to interpret the results of empirical research studies, especially when such studies involve complicated questions involving research design, measurement, sampling, or analysis. (8) Supreme Court Justice Antonin Scalia has emphasized this point. In his dissenting opinion in Roper v. Simmons, a case in which the Court prohibited the execution of juveniles, he remarked, "Given the nuances of scientific methodology and conflicting views, courts ... are ill equipped to determine which view of science is the right one." (9) Notably, the problem is central to the Court's decisions in cases that affect many prominent criminal justice policies. The findings from empirical research, for example, have been cited in such landmark cases as McCleskey v. Kemp (racial discrimination and capital punishment), (10) Atkins v. Virginia (execution of the mentally handicapped), (11) and District of Columbia v. Heller (gun control). (12)

This use of social scientific research in Court decisions has occurred as policymakers and practitioners have increasingly emphasized the importance of evidence-based policy, (13) which draws on credible research to support the assumptions on which it is premised. (14) Given the Court's prominence in shaping policy, (15) and its use of empirical research in some decisions, (16) the question arises: How is the social scientific research interpreted? For example, does the Court interpret scholarship in a manner that accords broadly with the state of empirical evidence and not only that from select studies? Does the Court acknowledge competing claims supported by different bodies of empirical research? If it does, then its decisions arguably rest on an evidence-based foundation. If it does not, then, conversely, its decisions arguably lack an evidence-based foundation.

Against this backdrop, the goal of this study is to supplement scholarship on the Court's role in contributing to evidence-based crime and criminal justice policy. To this end, we focus on a largely neglected area of investigation--the Court's role in upholding, reversing, or modifying sex crime laws, and, in particular, whether the Court not only has drawn on social science but has accurately interpreted extant scholarship. …

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