This bill has been amended

Bill S3138-2013

Relates to sex offender risk assessment instruments

Relates to sex offender risk assessment instruments.

Details

Actions

  • Jan 8, 2014: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • Jan 30, 2013: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION

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 instrument.

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, 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 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 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 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 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 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 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.


Text

STATE OF NEW YORK ________________________________________________________________________ 3138 2013-2014 Regular Sessions IN SENATE 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,
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
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
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;
(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
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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