senate Bill S3138A

2013-2014 Legislative Session

Relates to sex offender risk assessment instruments

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
May 21, 2014 print number 3138a
amend and recommit to crime victims, crime and correction
Jan 08, 2014 referred to crime victims, crime and correction
Jan 30, 2013 referred to crime victims, crime and correction

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S3138 - Bill Details

See Assembly Version of this Bill:
A4591A
Current Committee:
Law Section:
Correction Law
Laws Affected:
Amd §§168-d, 168-k, 168-l & 168-n, Cor L
Versions Introduced in 2011-2012 Legislative Session:
S7080, A9258

S3138 - Bill Texts

view summary

Relates to sex offender risk assessment instruments.

view sponsor memo
BILL NUMBER:S3138

TITLE OF BILL: An act to amend the correction law, in relation to risk
assessment instruments for sex offenders

PURPOSE: To update the guidelines of the sex offender risk assessment
instrument and require use of a validated instrument.

SUMMARY OF PROVISIONS:

Section 1 makes a technical amendment to section 168-d of the correction
law requiring the application of a risk assessment instrument.

Section 2 makes the same technical amendment to section 168-k of the
correction law in requiring the application of a risk assessment instru-
ment.

Section 3 amends subdivisions 5 and 6 and adds a new subdivision 5-a of
section 168-1 of the correction law requiring the board of examiners of
sex offenders to use a validated risk assessment instrument subjected to
periodic empirical re-validation.

Section 4 makes the same technical amendment to subdivisions 1 and 2 of
section 168-n of the correction law requiring the application of a risk
assessment instrument.

Section 5 provides for an effective date.

JUSTIFICATION: The New York State Board of Examiners of Sex Offenders
created the risk assessment guidelines in 1995. An expert panel, includ-
ing two assistant district attorneys, a probation officer, a deputy
attorney general, a police captain, the acting director of forensic
services at the Office of Mental Health, a physician and a sex offender
treatment provider, applied the guidelines to twenty cases, and then
modified them. The guidelines were adopted as modified by the panel in
January 1996 and, with one slight revision in 1997 and one statutory
update in 2006, have remained the same since that time.

The guidelines are used to assess each sex offender's risk of reoffend-
ing and to make a recommendation to the courts concerning the risk level
that should be assigned to such sex offender. The courts treat these
recommendations as presumptively valid and generally only override the
board's recommendation if something is brought to their attention that
was not taken into account by the guidelines.

There are at least two major problems with the state's risk assessment
guidelines. Foremost is that they have never been tested to see if they
in fact accurately predict the risk of reoffending. The process of peri-
odic empirical validation ensures that a risk assessment instrument is
accurate, predictive, leads to the sane results when different people
apply it and appropriately supports the decision-making process in each

case under consideration so that the state is not making arbitrary or
irrational assignments of risk levels.

A second problem with the guidelines is that they do not take new
research into account. There have been major advances in the study of
sex offender recidivism since 1996. Most psychologists and psychiatrists
now use interviews and "actuarial risk assessments" to evaluate the risk
of reoffense posed by individual sex offenders. The actuarial risk
assessment tools are based on a retrospective evaluation of data to
determine what characteristics are shared by high risk sex offenders who
have recidivated. The information from the statistical analysis of a
wide number of cases is used to create an instrument that will predict
the probability of reoffense for an individual sex offender being evalu-
ated and appropriately assign a high risk level to those sex offenders
most likely to commit a new sex offense and a lower level to those sex
offenders who are not likely to reoff end.

The general idea of any sex offender actuarial risk assessment is that
the characteristics of an individual sex offender are compared to the
characteristics of a large group of sex offenders who have reoffended
over a given period of time. The instruments are not personality tests
or psychological profiles, but are predictive statistical tools that
look at the traits of an individual to see how other similarly-situated
individuals have fared in the past. The strength of the actuarial method
is that it is research-supported rather than subjective, and that the
instrument is susceptible to ongoing re-validation and. refinement.

The most widely used of the actuarial risk assessment instruments is the
Static 99. The Static 99 was revised in 2009 in order to account for a
marked observed drop in the risk of reoffending with advancing age, The
Static 99R has ten factors for assessing the risk of reoffending in
adult male sex offenders and was created to be used by probation and
parole officers trained on the instrument. The instrument itself is in
the public domain and is supported by an active scientific community of
researchers and practitioners. It is continually tested against new data
as they become available. The Static 99 has been adopted by a number of
states for use in assigning risk levels to sex offenders upon release
from local and state incarceration. Although it tends to assign more
offenders to a high risk category than actually recidivate, it still has
a reported predictive accuracy of about 700, making it moderately
predictive. Other validated instruments with at least. moderate predic-
tive value include the Minnesota Sexual Offender Screening Tool, the Sex
Offender Risk Appraisal Guide and the Vermont Assessment of Sex Offender
Risk. The predictive accuracy of New York's current risk assessment
guidelines is unknown, since the instrument has never been validated. It
has been noted by clinical psychologists working with sex offenders in
New York that many of the factors used in the state's risk assessment
guidelines do not have any relation to the level of risk, and recommen-
dations have been made that it should be replaced with a more modern and
validated instrument.

Our sex offender registry should reflect accurate risk assessment levels
so that law enforcement and treatment services focus on the sex offen-
ders most likely to recidivate. The public and law enforcement depend on
the findings of the Board of Examiners of Sex Offenders, so it is incum-
bent upon the legislature to ensure that the Board is utilizing the most
up-to-date, accurate and scientifically validated risk assessment
instrument available. The first line of defense against recidivism is a
precise estimation of which sex offenders need the most careful super-
vision, allowing law enforcement to focus its efforts on those sex
offenders who pose a high risk of reoffending. Requiring a validated
risk assessment instrument will help the state identify those high-risk
individuals who need to be watched most closely.

FISCAL IMPLICATIONS: None, as the Static 99 and other validated risk
assessment instruments are in public domain.

LOCAL FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect one hundred eighty days
after it shall have become law.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3138

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 30, 2013
                               ___________

Introduced  by  Sens. KRUEGER, RIVERA -- read twice and ordered printed,
  and when printed to be committed to the Committee  on  Crime  Victims,
  Crime and Correction

AN  ACT  to  amend  the  correction  law, in relation to risk assessment
  instruments for sex offenders

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  3 of section 168-d of the correction law, as
amended by chapter 11 of the  laws  of  2002,  is  amended  to  read  as
follows:
  3.  For sex offenders released on probation or discharged upon payment
of a fine, conditional discharge or unconditional discharge, it shall be
the duty of the  court  applying  the  guidelines  AND  RISK  ASSESSMENT
INSTRUMENT  established  in  subdivision  five  of  section  one hundred
sixty-eight-l of this article to determine  the  level  of  notification
pursuant to subdivision six of section one hundred sixty-eight-l of this
article and whether such sex offender shall be designated a sexual pred-
ator, sexually violent offender, or predicate sex offender as defined in
subdivision  seven of section one hundred sixty-eight-a of this article.
At least  fifteen  days  prior  to  the  determination  proceeding,  the
district  attorney  shall  provide  to  the court and the sex offender a
written  statement  setting  forth  the  determinations  sought  by  the
district  attorney  together  with the reasons for seeking such determi-
nations. The court shall allow the sex offender to appear and be  heard.
The state shall appear by the district attorney, or his or her designee,
who  shall  bear the burden of proving the facts supporting the determi-
nations sought by clear and convincing  evidence.    Where  there  is  a
dispute  between  the  parties  concerning the determinations, the court
shall adjourn the hearing as necessary to permit the sex offender or the
district attorney to obtain materials  relevant  to  the  determinations
from any state or local facility, hospital, institution, office, agency,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00904-01-3

S. 3138                             2

department  or  division.  Such materials may be obtained by subpoena if
not voluntarily provided to the requesting party. In making the determi-
nations, the court shall review any victim's statement and any  relevant
materials  and  evidence  submitted by the sex offender and the district
attorney and the court may consider reliable hearsay evidence  submitted
by  either  party  provided  that  it is relevant to the determinations.
Facts previously proven at trial or elicited at the time of entry  of  a
plea  of  guilty  shall  be  deemed  established by clear and convincing
evidence and shall not be relitigated. The court shall render  an  order
setting  forth  its  determinations and the findings of fact and conclu-
sions of law on which the determinations are based. A copy of the  order
shall  be  submitted  by  the court to the division. Upon application of
either party, the court shall seal any portion  of  the  court  file  or
record  which  contains material that is confidential under any state or
federal statute. Either party may appeal as  of  right  from  the  order
pursuant  to the provisions of articles fifty-five, fifty-six and fifty-
seven of the civil practice  law  and  rules.  Where  counsel  has  been
assigned  to  represent  the  sex  offender upon the ground that the sex
offender is financially unable to retain counsel, that assignment  shall
be  continued  throughout the pendency of the appeal, and the person may
appeal as a poor person pursuant to article  eighteen-B  of  the  county
law.
  S  2. Subdivision 2 of section 168-k of the correction law, as amended
by chapter 684 of the laws of 2005, is amended to read as follows:
  2. The division shall advise the  board  that  the  sex  offender  has
established  residence  in this state. The board shall determine whether
the sex offender is required to register with the  division.  If  it  is
determined  that  the sex offender is required to register, the division
shall notify the sex offender of his or her duty to register under  this
article  and  shall  require  the  sex offender to sign a form as may be
required by the division acknowledging that the duty to register and the
procedure for registration has been explained to the sex  offender.  The
division  shall  obtain  on such form the address where the sex offender
expects to reside within the state and the sex offender shall retain one
copy of the form and send two copies to the division which shall provide
the information to the law enforcement agency having jurisdiction  where
the  sex  offender  expects  to  reside within this state. No later than
thirty days prior to the board making a recommendation, the sex offender
shall be notified that his or her case is under review and  that  he  or
she  is permitted to submit to the board any information relevant to the
review. After reviewing  any  information  obtained,  and  applying  the
guidelines  AND  RISK  ASSESSMENT  INSTRUMENT established in subdivision
five of section one hundred sixty-eight-l of  this  article,  the  board
shall  within  sixty  calendar  days make a recommendation regarding the
level of notification pursuant to subdivision six of section one hundred
sixty-eight-l of this article and whether such  sex  offender  shall  be
designated  a  sexual  predator, sexually violent offender, or predicate
sex offender as defined in subdivision  seven  of  section  one  hundred
sixty-eight-a  of  this article.  This recommendation shall be confiden-
tial and shall not be available  for  public  inspection.  It  shall  be
submitted  by  the board to the county court or supreme court and to the
district attorney in the county of residence of the sex offender and  to
the  sex  offender.  It shall be the duty of the county court or supreme
court in the county of residence  of  the  sex  offender,  applying  the
guidelines  AND  RISK  ASSESSMENT  INSTRUMENT established in subdivision
five of section one hundred sixty-eight-l of this article, to  determine

S. 3138                             3

the  level  of  notification  pursuant to subdivision six of section one
hundred sixty-eight-l of this article  and  whether  such  sex  offender
shall  be  designated  a  sexual predator, sexually violent offender, or
predicate  sex  offender  as defined in subdivision seven of section one
hundred sixty-eight-a of this article. At least thirty days prior to the
determination proceeding, such court shall notify the district  attorney
and  the  sex  offender,  in  writing,  of the date of the determination
proceeding and the court shall also provide the  district  attorney  and
sex  offender  with a copy of the recommendation received from the board
and any statement of the reasons for the  recommendation  received  from
the  board.  This  notice  shall  include  the  following statement or a
substantially similar statement:  "This  proceeding  is  being  held  to
determine  whether you will be classified as a level 3 offender (risk of
repeat offense is high), a level 2 offender (risk of repeat  offense  is
moderate),  or  a  level  1 offender (risk of repeat offense is low), or
whether you will be designated as a sexual predator, a sexually  violent
offender  or a predicate sex offender, which will determine how long you
must register as a sex offender and how much information can be provided
to the public concerning your registration. If you  fail  to  appear  at
this  proceeding,  without  sufficient  excuse, it shall be held in your
absence. Failure to appear may result in a longer period of registration
or a higher level of community notification because you are not  present
to offer evidence or contest evidence offered by the district attorney."
The  court shall also advise the sex offender that he or she has a right
to a hearing prior to the court's determination, that he or she has  the
right  to be represented by counsel at the hearing and that counsel will
be appointed if he or she is financially unable  to  retain  counsel.  A
returnable  form  shall  be  enclosed  in  the court's notice to the sex
offender on which the sex offender may apply for assignment of  counsel.
If  the  sex  offender  applies  for assignment of counsel and the court
finds that the offender is financially unable  to  retain  counsel,  the
court  shall  assign  counsel  to represent the sex offender pursuant to
article eighteen-B of the county law. If the district attorney  seeks  a
determination  that  differs  from  the  recommendation submitted by the
board, at least ten days  prior  to  the  determination  proceeding  the
district  attorney  shall  provide  to  the court and the sex offender a
statement setting forth the determinations sought by the district attor-
ney together with the reasons for seeking such determinations. The court
shall allow the sex offender to appear and be  heard.  The  state  shall
appear  by the district attorney, or his or her designee, who shall bear
the burden of proving the facts supporting the determinations sought  by
clear  and convincing evidence. It shall be the duty of the court apply-
ing the guidelines AND RISK ASSESSMENT INSTRUMENT established in  subdi-
vision  five  of  section  one  hundred sixty-eight-l of this article to
determine the level of  notification  pursuant  to  subdivision  six  of
section  one  hundred sixty-eight-l of this article and whether such sex
offender shall be designated a sexual predator, sexually violent  offen-
der,  or  predicate  sex  offender  as  defined  in subdivision seven of
section one hundred sixty-eight-a of this  article.  Where  there  is  a
dispute  between  the  parties  concerning the determinations, the court
shall adjourn the hearing as necessary to permit the sex offender or the
district attorney to obtain materials  relevant  to  the  determinations
from the state board of examiners of sex offenders or any state or local
facility, hospital, institution, office, agency, department or division.
Such  materials  may be obtained by subpoena if not voluntarily provided
to the requesting party. In making the determinations  the  court  shall

S. 3138                             4

review  any  victim's  statement and any relevant materials and evidence
submitted by the sex offender and the district attorney and  the  recom-
mendation  and  any  material  submitted  by the board, and may consider
reliable hearsay evidence submitted by either party, provided that it is
relevant  to  the determinations. If available, facts proven at trial or
elicited at the time of a plea of guilty shall be deemed established  by
clear  and  convincing  evidence and shall not be relitigated. The court
shall render an order setting forth its determinations and the  findings
of  fact and conclusions of law on which the determinations are based. A
copy of the order shall be submitted by the court to the division.  Upon
application  of  either  party,  the court shall seal any portion of the
court file or record which contains material that is confidential  under
any  state  or federal statute. Either party may appeal as of right from
the order pursuant to the provisions of articles  fifty-five,  fifty-six
and  fifty-seven  of the civil practice law and rules. Where counsel has
been assigned to represent the sex offender upon the ground that the sex
offender is financially unable to retain counsel, that assignment  shall
be  continued  throughout the pendency of the appeal, and the person may
appeal as a poor person pursuant to article  eighteen-B  of  the  county
law.
  S  3.  Subdivision  5  and  the  opening paragraph of subdivision 6 of
section 168-l of the correction law, subdivision 5 as added  by  chapter
192  of  the laws of 1995, subparagraph (i) of paragraph (a) of subdivi-
sion 5 and the opening paragraph of subdivision 6 as amended by  chapter
11  of  the laws of 2002, are amended and a new subdivision 5-a is added
to read as follows:
  5. The board shall develop guidelines and procedures AND USE  A  VALI-
DATED  RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat offense
by such sex offender and the threat posed to  the  public  safety.  SUCH
RISK  ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO EMPIRICAL
RE-VALIDATION. Such guidelines [shall] MAY be based upon, but not limit-
ed to, the following:
  (a) criminal  history  factors  indicative  of  high  risk  of  repeat
offense, including:
  (i)  whether  the sex offender has a mental abnormality or personality
disorder that makes him or her likely to engage  in  predatory  sexually
violent offenses;
  (ii)  whether the sex offender's conduct was found to be characterized
by repetitive and compulsive behavior, associated with drugs or alcohol;
  (iii) whether the sex offender served the maximum term;
  (iv) whether the sex offender committed the felony sex offense against
a child;
  (v) the age of the sex offender at the time of the commission  of  the
first sex offense;
  (b)  other  criminal  history  factors to be considered in determining
risk, including:
  (i) the relationship between such sex offender and the victim;
  (ii) whether the offense involved the use of  a  weapon,  violence  or
infliction of serious bodily injury;
  (iii) the number, date and nature of prior offenses;
  (c)  conditions of release that minimize risk or re-offense, including
but not limited to  whether  the  sex  offender  is  under  supervision;
receiving  counseling, therapy or treatment; or residing in a home situ-
ation that provides guidance and supervision;
  (d) physical conditions that minimize risk  of  re-offense,  including
but not limited to advanced age or debilitating illness;

S. 3138                             5

  (e)  whether  psychological or psychiatric profiles indicate a risk of
recidivism;
  (f) the sex offender's response to treatment;
  (g) recent behavior, including behavior while confined;
  (h)  recent  threats  or  gestures  against  persons or expressions of
intent to commit additional offenses; and
  (i) review of any victim impact statement.
  5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND  THE  DIVI-
SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF
SEX OFFENDER RECIDIVISM STATISTICS.
  (B)  THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF
CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY  AT
LEAST  EVERY  FIVE  YEARS  TO DETERMINE THE PREDICTIVE VALUE OF THE RISK
ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT  OFFENSE  LEVELS  TO
SEX  OFFENDERS  PURSUANT  TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH
SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND
LEGISLATURE DETERMINING THE PREDICTIVE  VALUE  OF  THE  RISK  ASSESSMENT
INSTRUMENT  AND  THE  PREDICTIVE  VALUE OF EACH FACTOR CONSIDERED IN THE
OVERALL RISK ASSESSMENT WHEN APPLIED TO  THE  STATEWIDE  DATABASE  MAIN-
TAINED  PURSUANT  TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL
INCLUDE RECOMMENDED CHANGES TO THE RISK ASSESSMENT INSTRUMENT TO ENHANCE
ITS PREDICTIVE CAPABILITIES FOR THE PURPOSE OF PERIODIC REVALIDATION  OF
SUCH  INSTRUMENT PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST
SUCH STUDY SHALL BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE  OF
THIS SUBDIVISION.
  Applying   these   guidelines   AND   THE  VALIDATED  RISK  ASSESSMENT
INSTRUMENT, the board shall within sixty  calendar  days  prior  to  the
discharge,  parole,  release to post-release supervision or release of a
sex offender make a recommendation which shall be confidential and shall
not be available for public inspection, to the sentencing  court  as  to
whether  such  sex offender warrants the designation of sexual predator,
sexually violent offender, or  predicate  sex  offender  as  defined  in
subdivision  seven of section one hundred sixty-eight-a of this article.
In addition, the guidelines AND SUCH INSTRUMENT shall be applied by  the
board  to  make  a recommendation to the sentencing court which shall be
confidential and shall not be available for public inspection, providing
for one of the following three levels of notification depending upon the
degree of the risk of re-offense by the sex offender.
  S 4. Subdivisions 1 and 2 of section  168-n  of  the  correction  law,
subdivision  1 as amended by chapter 11 of the laws of 2002 and subdivi-
sion 2 as amended by chapter 453 of the laws of  1999,  are  amended  to
read as follows:
  1.  A  determination  that  an offender is a sexual predator, sexually
violent offender, or predicate sex offender as  defined  in  subdivision
seven of section one hundred sixty-eight-a of this article shall be made
prior  to  the discharge, parole, release to post-release supervision or
release of such offender by the sentencing court applying the guidelines
AND RISK  ASSESSMENT  INSTRUMENT  established  in  subdivision  five  of
section  one  hundred  sixty-eight-l  of  this article after receiving a
recommendation from the board pursuant to  section  one  hundred  sixty-
eight-l of this article.
  2. In addition, applying the guidelines AND RISK ASSESSMENT INSTRUMENT
established  in subdivision five of section one hundred sixty-eight-l of
this article, the sentencing court shall also make a determination  with
respect  to  the level of notification, after receiving a recommendation
from the board pursuant to section one  hundred  sixty-eight-l  of  this

S. 3138                             6

article. Both determinations of the sentencing court shall be made thir-
ty calendar days prior to discharge, parole or release.
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

Co-Sponsors

S3138A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A4591A
Current Committee:
Law Section:
Correction Law
Laws Affected:
Amd §§168-d, 168-k, 168-l & 168-n, Cor L
Versions Introduced in 2011-2012 Legislative Session:
S7080, A9258

S3138A (ACTIVE) - Bill Texts

view summary

Relates to sex offender risk assessment instruments.

view sponsor memo
BILL NUMBER:S3138A

TITLE OF BILL: An act to amend the correction law, in relation to
risk assessment instruments for sex offenders

PURPOSE:

To update the guidelines of the sex offender risk assessment
instrument and require use of a validated instrument.

SUMMARY OF PROVISIONS:

Section 1 makes a technical amendment to section 168-d of the
correction law requiring the application of a risk assessment
instrument.

Section 2 makes the same technical amendment to section 168-k of the
correction law in requiring the application of a risk assessment
instrument.

Section 3 amends subdivisions 5 and 6 and adds a new subdivision 5-a
of section 168-I of the correction law requiring the board of
examiners of sex offenders to use a validated risk assessment
instrument subjected to periodic empirical re-validation.

Section 4 makes the same technical amendment to subdivisions 1 and 2
of section 168-n of the correction law requiring the application of a
risk assessment instrument.

Section 5 provides for an effective date.

JUSTIFICATION:

The New York State Board of Examiners of Sex Offenders created the
risk assessment guidelines in 1995. An expert panel, including two
assistant district attorneys, a probation officer, a deputy attorney
general, a police captain, the acting director of forensic services at
the Office of Mental Health, a physician and a sex offender treatment
provider, applied the guidelines to twenty cases, and then modified
them. The guidelines were adopted as modified by the panel in January
1996 and, with one slight revision in 1997 and one statutory update in
2006, have remained the same since that time.

The guidelines are used to assess each sex offender's risk of
reoffending and to make a recommendation to the courts concerning the
risk level that should be assigned to such sex offender. The courts
treat these recommendations as presumptively valid and generally only
override the board's recommendation if something is brought to their
attention that was not taken into account by the guidelines.

There are at least two major problems with the state's risk assessment
guidelines. Foremost is that they have never been tested to see if
they in fact accurately predict the risk of reoffending. The process
of periodic empirical validation ensures that a risk assessment
instrument is accurate, predictive, leads to the same results when
different people apply it and appropriately supports the
decision-making process in each case under consideration so that the


state is not making arbitrary or irrational assignments of risk
levels.

A second problem with the guidelines is that they do not take new
research into account. There have been major advances in the study of
sex offender recidivism since 1996. Most psychologists and
psychiatrists now use interviews and "actuarial risk assessments" to
evaluate the risk of reoffense posed by individual sex offenders. The
actuarial risk assessment tools are based on a retrospective
evaluation of data to determine what characteristics are shared by
high risk sex offenders who have recidivated. The information from the
statistical analysis of a wide number of cases is used to create an
instrument that will predict the probability of reoffense for an
individual sex offender being evaluated and appropriately assign a
high risk level to those sex offenders most likely to commit a new sex
offense and a lower level to those sex offenders who are not likely to
reoffend.

The general idea of any sex offender actuarial risk assessment is that
the characteristics of an individual sex offender are compared to the
characteristics of a large group of sex offenders who have reoffended
over a given period of time. The instruments are not personality tests
or psychological profiles, but are predictive statistical tools that
look at the traits of an individual to see how other
similarly-situated individuals have fared in the past. The strength of
the actuarial method is that it is research-supported rather than
subjective, and that the instrument is susceptible to ongoing
re-validation and refinement.

The most widely used of the actuarial risk assessment instruments is
the Static 99. The Static 99 was revised in 2009 in order to account
for a marked observed drop in the risk of reoffending with advancing
age. The Static 99R has ten factors for assessing the risk of
reoffending in adult male sex offenders and was created to be used by
probation and parole officers trained on the instrument. The
instrument itself is in the public domain and is supported by an
active scientific community of researchers and practitioners. It is
continually tested against new data as they become available. The
Static 99 has been adopted by a number of states for use in assigning
risk levels to sex offenders upon release from local and state
incarceration. Although it tends to assign more offenders to a high
risk category than actually recidivate, it still has a reported
predictive accuracy of about 70%, making it moderately predictive.
Other validated instruments with at least moderate predictive value
include the Minnesota Sexual Offender Screening Tool, the Sex Offender
Risk Appraisal Guide and the Vermont Assessment of Sex Offender Risk.
The predictive accuracy of New York's current risk assessment
guidelines is unknown, since the instrument has never been validated.
It has been noted by clinical psychologists working with sex offenders
in New York that many of the factors used in the state's risk
assessment guidelines do not have any relation to the level of risk,
and recommendations have been made that it should be replaced with a
more modem and validated instrument.

Our sex offender registry should reflect accurate risk assessment
levels so that law enforcement and treatment services focus on the sex
offenders most likely to recidivate. The public and law enforcement


depend on the findings of the Board of Examiners of Sex Offenders, so
it is incumbent upon the legislature to ensure that the Board is
utilizing the most up-to-date, accurate and scientifically validated
risk assessment instrument available. The first line of defense
against recidivism is a precise estimation of which sex offenders need
the most careful supervision, allowing law enforcement to focus its
efforts on those sex offenders who pose a high risk of reoffending.
Requiring a validated risk assessment instrument will help the state
identify those high-risk individuals who need to be watched most
closely.

FISCAL IMPLICATIONS:

None, as the Static 99 and other validated risk assessment instruments
are in public domain.

LOCAL FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

This act shall take effect one hundred eighty days after it shall have
become law.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3138--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 30, 2013
                               ___________

Introduced  by  Sens. KRUEGER, RIVERA -- read twice and ordered printed,
  and when printed to be committed to the Committee  on  Crime  Victims,
  Crime and Correction -- recommitted to the Committee on Crime Victims,
  Crime  and  Correction  in  accordance  with  Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend  the  correction  law, in relation to risk assessment
  instruments for sex offenders

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  3 of section 168-d of the correction law, as
amended by chapter 11 of the  laws  of  2002,  is  amended  to  read  as
follows:
  3.  For sex offenders released on probation or discharged upon payment
of a fine, conditional discharge or unconditional discharge, it shall be
the duty of the  court  applying  the  guidelines  AND  RISK  ASSESSMENT
INSTRUMENT  established  in  subdivision  five  of  section  one hundred
sixty-eight-l of this article to determine  the  level  of  notification
pursuant to subdivision six of section one hundred sixty-eight-l of this
article and whether such sex offender shall be designated a sexual pred-
ator, sexually violent offender, or predicate sex offender as defined in
subdivision  seven of section one hundred sixty-eight-a of this article.
At least  fifteen  days  prior  to  the  determination  proceeding,  the
district  attorney  shall  provide  to  the court and the sex offender a
written  statement  setting  forth  the  determinations  sought  by  the
district  attorney  together  with the reasons for seeking such determi-
nations. The court shall allow the sex offender to appear and be  heard.
The state shall appear by the district attorney, or his or her designee,
who  shall  bear the burden of proving the facts supporting the determi-
nations sought by clear and convincing  evidence.    Where  there  is  a
dispute  between  the  parties  concerning the determinations, the court

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00904-03-4

S. 3138--A                          2

shall adjourn the hearing as necessary to permit the sex offender or the
district attorney to obtain materials  relevant  to  the  determinations
from any state or local facility, hospital, institution, office, agency,
department  or  division.  Such materials may be obtained by subpoena if
not voluntarily provided to the requesting party. In making the determi-
nations, the court shall review any victim's statement and any  relevant
materials  and  evidence  submitted by the sex offender and the district
attorney and the court may consider reliable hearsay evidence  submitted
by  either  party  provided  that  it is relevant to the determinations.
Facts previously proven at trial or elicited at the time of entry  of  a
plea  of  guilty  shall  be  deemed  established by clear and convincing
evidence and shall not be relitigated. The court shall render  an  order
setting  forth  its  determinations and the findings of fact and conclu-
sions of law on which the determinations are based. A copy of the  order
shall  be  submitted  by  the court to the division. Upon application of
either party, the court shall seal any portion  of  the  court  file  or
record  which  contains material that is confidential under any state or
federal statute. Either party may appeal as  of  right  from  the  order
pursuant  to the provisions of articles fifty-five, fifty-six and fifty-
seven of the civil practice  law  and  rules.  Where  counsel  has  been
assigned  to  represent  the  sex  offender upon the ground that the sex
offender is financially unable to retain counsel, that assignment  shall
be  continued  throughout the pendency of the appeal, and the person may
appeal as a poor person pursuant to article  eighteen-B  of  the  county
law.
  S  2. Subdivision 2 of section 168-k of the correction law, as amended
by chapter 684 of the laws of 2005, is amended to read as follows:
  2. The division shall advise the  board  that  the  sex  offender  has
established  residence  in this state. The board shall determine whether
the sex offender is required to register with the  division.  If  it  is
determined  that  the sex offender is required to register, the division
shall notify the sex offender of his or her duty to register under  this
article  and  shall  require  the  sex offender to sign a form as may be
required by the division acknowledging that the duty to register and the
procedure for registration has been explained to the sex  offender.  The
division  shall  obtain  on such form the address where the sex offender
expects to reside within the state and the sex offender shall retain one
copy of the form and send two copies to the division which shall provide
the information to the law enforcement agency having jurisdiction  where
the  sex  offender  expects  to  reside within this state. No later than
thirty days prior to the board making a recommendation, the sex offender
shall be notified that his or her case is under review and  that  he  or
she  is permitted to submit to the board any information relevant to the
review. After reviewing  any  information  obtained,  and  applying  the
guidelines  AND  RISK  ASSESSMENT  INSTRUMENT established in subdivision
five of section one hundred sixty-eight-l of  this  article,  the  board
shall  within  sixty  calendar  days make a recommendation regarding the
level of notification pursuant to subdivision six of section one hundred
sixty-eight-l of this article and whether such  sex  offender  shall  be
designated  a  sexual  predator, sexually violent offender, or predicate
sex offender as defined in subdivision  seven  of  section  one  hundred
sixty-eight-a  of  this article.  This recommendation shall be confiden-
tial and shall not be available  for  public  inspection.  It  shall  be
submitted  by  the board to the county court or supreme court and to the
district attorney in the county of residence of the sex offender and  to
the  sex  offender.  It shall be the duty of the county court or supreme

S. 3138--A                          3

court in the county of residence  of  the  sex  offender,  applying  the
guidelines  AND  RISK  ASSESSMENT  INSTRUMENT established in subdivision
five of section one hundred sixty-eight-l of this article, to  determine
the  level  of  notification  pursuant to subdivision six of section one
hundred sixty-eight-l of this article  and  whether  such  sex  offender
shall  be  designated  a  sexual predator, sexually violent offender, or
predicate sex offender as defined in subdivision seven  of  section  one
hundred sixty-eight-a of this article. At least thirty days prior to the
determination  proceeding, such court shall notify the district attorney
and the sex offender, in writing,  of  the  date  of  the  determination
proceeding  and  the  court shall also provide the district attorney and
sex offender with a copy of the recommendation received from  the  board
and  any  statement  of the reasons for the recommendation received from
the board. This notice  shall  include  the  following  statement  or  a
substantially  similar  statement:  "This  proceeding  is  being held to
determine whether you will be classified as a level 3 offender (risk  of
repeat  offense  is high), a level 2 offender (risk of repeat offense is
moderate), or a level 1 offender (risk of repeat  offense  is  low),  or
whether  you will be designated as a sexual predator, a sexually violent
offender or a predicate sex offender, which will determine how long  you
must register as a sex offender and how much information can be provided
to  the  public  concerning  your registration. If you fail to appear at
this proceeding, without sufficient excuse, it shall  be  held  in  your
absence. Failure to appear may result in a longer period of registration
or  a higher level of community notification because you are not present
to offer evidence or contest evidence offered by the district attorney."
The court shall also advise the sex offender that he or she has a  right
to  a hearing prior to the court's determination, that he or she has the
right to be represented by counsel at the hearing and that counsel  will
be  appointed  if  he  or she is financially unable to retain counsel. A
returnable form shall be enclosed in  the  court's  notice  to  the  sex
offender  on which the sex offender may apply for assignment of counsel.
If the sex offender applies for assignment  of  counsel  and  the  court
finds  that  the  offender  is financially unable to retain counsel, the
court shall assign counsel to represent the  sex  offender  pursuant  to
article  eighteen-B  of the county law. If the district attorney seeks a
determination that differs from  the  recommendation  submitted  by  the
board,  at  least  ten  days  prior  to the determination proceeding the
district attorney shall provide to the court  and  the  sex  offender  a
statement setting forth the determinations sought by the district attor-
ney together with the reasons for seeking such determinations. The court
shall  allow  the  sex  offender to appear and be heard. The state shall
appear by the district attorney, or his or her designee, who shall  bear
the  burden of proving the facts supporting the determinations sought by
clear and convincing evidence. It shall be the duty of the court  apply-
ing  the guidelines AND RISK ASSESSMENT INSTRUMENT established in subdi-
vision five of section one hundred  sixty-eight-l  of  this  article  to
determine  the  level  of  notification  pursuant  to subdivision six of
section one hundred sixty-eight-l of this article and whether  such  sex
offender  shall be designated a sexual predator, sexually violent offen-
der, or predicate sex  offender  as  defined  in  subdivision  seven  of
section  one  hundred  sixty-eight-a  of  this article. Where there is a
dispute between the parties concerning  the  determinations,  the  court
shall adjourn the hearing as necessary to permit the sex offender or the
district  attorney  to  obtain  materials relevant to the determinations
from the state board of examiners of sex offenders or any state or local

S. 3138--A                          4

facility, hospital, institution, office, agency, department or division.
Such materials may be obtained by subpoena if not  voluntarily  provided
to  the  requesting  party. In making the determinations the court shall
review  any  victim's  statement and any relevant materials and evidence
submitted by the sex offender and the district attorney and  the  recom-
mendation  and  any  material  submitted  by the board, and may consider
reliable hearsay evidence submitted by either party, provided that it is
relevant to the determinations. If available, facts proven at  trial  or
elicited  at the time of a plea of guilty shall be deemed established by
clear and convincing evidence and shall not be  relitigated.  The  court
shall  render an order setting forth its determinations and the findings
of fact and conclusions of law on which the determinations are based.  A
copy  of the order shall be submitted by the court to the division. Upon
application of either party, the court shall seal  any  portion  of  the
court  file or record which contains material that is confidential under
any state or federal statute. Either party may appeal as of  right  from
the  order  pursuant to the provisions of articles fifty-five, fifty-six
and fifty-seven of the civil practice law and rules. Where  counsel  has
been assigned to represent the sex offender upon the ground that the sex
offender  is financially unable to retain counsel, that assignment shall
be continued throughout the pendency of the appeal, and the  person  may
appeal  as  a  poor  person pursuant to article eighteen-B of the county
law.
  S 3. Subdivision 5 and the  opening  paragraph  of  subdivision  6  of
section  168-l  of the correction law, subdivision 5 as added by chapter
192 of the laws of 1995, subparagraph (i) of paragraph (a)  of  subdivi-
sion  5 and the opening paragraph of subdivision 6 as amended by chapter
11 of the laws of 2002, are amended and a new subdivision 5-a  is  added
to read as follows:
  5.  The  board shall develop guidelines and procedures AND USE A VALI-
DATED RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat  offense
by  such  sex  offender  and the threat posed to the public safety. SUCH
RISK ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO  EMPIRICAL
RE-VALIDATION.  Such  guidelines  shall  [be  based  upon,]  INCORPORATE
FACTORS FOUND TO BE PREDICTIVE OF RISK OF RE-OFFENSE, INCLUDING but  not
limited to, the following:
  (a)  criminal  history  factors  indicative  of  high  risk  of repeat
offense, including:
  (i) whether the sex offender has a mental abnormality  or  personality
disorder  that  makes  him or her likely to engage in predatory sexually
violent offenses;
  (ii) whether the sex offender's conduct was found to be  characterized
by repetitive and compulsive behavior, associated with drugs or alcohol;
  (iii) whether the sex offender served the maximum term;
  (iv) whether the sex offender committed the felony sex offense against
a child;
  (v)  the  age of the sex offender at the time of the commission of the
first sex offense;
  (b) other criminal history factors to  be  considered  in  determining
risk, including:
  (i) the relationship between such sex offender and the victim;
  (ii)  whether  the  offense  involved the use of a weapon, violence or
infliction of serious bodily injury;
  (iii) the number, date and nature of prior offenses;
  (c) conditions of release that minimize risk or re-offense,  including
but  not  limited  to  whether  the  sex  offender is under supervision;

S. 3138--A                          5

receiving counseling, therapy or treatment; or residing in a home  situ-
ation that provides guidance and supervision;
  (d)  physical  conditions  that minimize risk of re-offense, including
but not limited to advanced age or debilitating illness;
  (e) whether psychological or psychiatric profiles indicate a  risk  of
recidivism;
  (f) the sex offender's response to treatment;
  (g) recent behavior, including behavior while confined;
  (h)  recent  threats  or  gestures  against  persons or expressions of
intent to commit additional offenses; and
  (i) review of any victim impact statement.
  5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND  THE  DIVI-
SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF
SEX OFFENDER RECIDIVISM STATISTICS.
  (B)  THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF
CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY  AT
LEAST  EVERY  FIVE  YEARS  TO DETERMINE THE PREDICTIVE VALUE OF THE RISK
ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT  OFFENSE  LEVELS  TO
SEX  OFFENDERS  PURSUANT  TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH
SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND
LEGISLATURE DETERMINING THE PREDICTIVE  VALUE  OF  THE  RISK  ASSESSMENT
INSTRUMENT  AND  THE  PREDICTIVE  VALUE OF EACH FACTOR CONSIDERED IN THE
OVERALL RISK ASSESSMENT WHEN APPLIED TO  THE  STATEWIDE  DATABASE  MAIN-
TAINED  PURSUANT  TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL
INCLUDE RECOMMENDED  CHANGES  TO  THE  GUIDELINES  AND  RISK  ASSESSMENT
INSTRUMENT  TO  ENHANCE THEIR PREDICTIVE CAPABILITIES FOR THE PURPOSE OF
PERIODIC REVALIDATION OF SUCH GUIDELINES AND RISK ASSESSMENT  INSTRUMENT
PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST SUCH STUDY SHALL
BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE OF THIS SUBDIVISION.
  Applying   these   guidelines   AND   THE  VALIDATED  RISK  ASSESSMENT
INSTRUMENT, the board shall within sixty  calendar  days  prior  to  the
discharge,  parole,  release to post-release supervision or release of a
sex offender make a recommendation which shall be confidential and shall
not be available for public inspection, to the sentencing  court  as  to
whether  such  sex offender warrants the designation of sexual predator,
sexually violent offender, or  predicate  sex  offender  as  defined  in
subdivision  seven of section one hundred sixty-eight-a of this article.
In addition, the guidelines AND SUCH INSTRUMENT shall be applied by  the
board  to  make  a recommendation to the sentencing court which shall be
confidential and shall not be available for public inspection, providing
for one of the following three levels of notification depending upon the
degree of the risk of re-offense by the sex offender.
  S 4. Subdivisions 1 and 2 of section  168-n  of  the  correction  law,
subdivision  1 as amended by chapter 11 of the laws of 2002 and subdivi-
sion 2 as amended by chapter 453 of the laws of  1999,  are  amended  to
read as follows:
  1.  A  determination  that  an offender is a sexual predator, sexually
violent offender, or predicate sex offender as  defined  in  subdivision
seven of section one hundred sixty-eight-a of this article shall be made
prior  to  the discharge, parole, release to post-release supervision or
release of such offender by the sentencing court applying the guidelines
AND RISK  ASSESSMENT  INSTRUMENT  established  in  subdivision  five  of
section  one  hundred  sixty-eight-l  of  this article after receiving a
recommendation from the board pursuant to  section  one  hundred  sixty-
eight-l of this article.

S. 3138--A                          6

  2. In addition, applying the guidelines AND RISK ASSESSMENT INSTRUMENT
established  in subdivision five of section one hundred sixty-eight-l of
this article, the sentencing court shall also make a determination  with
respect  to  the level of notification, after receiving a recommendation
from  the  board  pursuant  to section one hundred sixty-eight-l of this
article. Both determinations of the sentencing court shall be made thir-
ty calendar days prior to discharge, parole or release.
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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