The defendant appeared before the Court for a risk level determination pursuant to the Sex Offender Registration Act. The defendant has a criminal history which dates back to the 1950’s and includes a number of crimes committed in Virginia, viz: Rape in Virginia, in 1955; Felony Cutting with Intent to Maim in Virginia, in 1957; Rape in 1962; and Arson in the Second Degree in New York, in 1985.
First, defendant moved to have the Court declare SORA unconstitutional as applied and use the Static 99 rather than the SORA Risk Assessment Instrument (the “RAI”) to determine his risk for re-offense. He argues that the SORA Risk Assessment Instrument does not measure the risk of re-offense, as it purports to do, but reflects a moral judgment about how blameworthy sexually offending behavior is. He describes the instrument and risk level determinations under SORA as punitive rather than regulatory. For this reason, he alleges, the statute is unconstitutional.
Second, defendant urges that the use of a psuedo-scientific instrument (the RAI) to deprive persons of a basic liberty interest violates due process. Defendant acknowledges that this claim was rejected by the First Department in the case of People v. Ferrer, but argues, inter alia, that the decision is so conclusory that it cannot act as a barrier to consideration by the Court.
Lastly, defendant argues that pursuant to the decision of the New York Court of Appeals in the case of People v. Johnson, the RAI does not have any presumptive weight in a SORA risk assessment proceeding and the Court may disregard the instrument if it chooses to.
Defendant’s constitutional claims are denied.
First, the Court does not agree that the SORA statute as applied is punitive rather than regulatory.
The Second Circuit conducted an extensive analysis of this issue in the case of Doe v. Pataki. The Doe Court analyzed the issue in order to determine whether SORA’s retroactive application to offenders whose crimes had occurred before the statute’s enactment violated the ex post facto clause. The Court concluded that SORA’s notification and registration requirements were regulatory rather than punitive and could therefore be retroactively applied. The same conclusion has been reached by multiple New York appellate courts.
Here, the defendant acknowledges the Doe ruling, but argues that amendments made to the SORA statute since Doe which have imposed significantly more stringent requirements on sex crimes now make the statute punitive. The herein Court does not agree. Amendments made to the SORA statute since 1997 have unquestionably made the statute’s registration and community notification regime wider and more burdensome on offenders. There are multiple aspects of the current SORA risk determination process which bear a closer resemblance to criminal sentencing than risk prediction. But in the Court’s view, neither those legislative amendments nor the current procedures through which SORA determinations are made have served to modify the fundamental purposes and provisions of the statute. SORA, in the Court’s view, is a regulatory regime which is designed to protect public safety.
Second, the Court does agree that the current procedures by which sex offenders are classified under the RAI are devoid of any rational basis and violate substantive due process. However, there is no evidence that the RAI provides probative information about the risk that a sex offender will re-offend. Its determinations are simply arbitrary. Moreover, the ability of courts to depart from the presumptive RAI score does not cure the due process deficiencies inherent in the instrument. Although the Court agrees with the second of defendant’s constitutional claims that those issues have already been rejected by the First Department in the Ferrer matter as well as numerous prior appellate rulings, the Court is obviously bound by those determinations and has followed them. For that reason, defendant’s second constitutional claim is also denied.
Finally, after the Court denied defendant’s constitutional claims, the Court scored the defendant under the RAI and determined that he was a Level 3 offender at high risk for re-offense.
Defendant then moved to have the Court depart from that initial Level 3 determination and classify the defendant as a Level 1 offender at low risk for re-offense. He made additional written submissions in support of this application and the Court conducted a hearing.
On 8 June 2010, following the hearing, the Court issued a brief written decision holding that there was no basis to depart from the Level 3 designation which the Court had found was appropriate under the RAI. The Court therefore classified the defendant as a Level 3 offender at high risk for re-offense.
Here, the defendant presented the scoring of a valid actuarial risk assessment instrument (the Static 99) which in this case quite obviously could not be used alone to determine the defendant’s risk level. This is not a critique of the instrument. The Static 99 is not intended to be used as the only factor in assessing risk. The Court did not receive any clinical assessment or expert opinion about the defendant’s actual risk for re-offense. It did not receive any evidence which would have justified a departure from the RAI. The Court does not know how likely the defendant is to re-offend. The RAI may have classified him as being at a higher risk to re-offend than justified. Or, just as plausibly, the instrument’s point score putting him barely above the Level 3 threshold may have underestimated his re-offense risk or been roughly accurate. As in most SORA proceedings, the Court did not receive the evidence which was necessary to make an informed judgment on the matter.
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