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Department of Correctional Services

This is a proceeding wherein the Defendant appeared before the Court for a risk level determination pursuant to the Sex Offender Registration Act (SORA).

First, defendant moved to have this Court declare SORA unconstitutional and argues that the SORA Risk Assessment Instrument (RAI) 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 People v Ferrer but argues, inter alia, that the decision is so conclusory that it cannot act as a barrier to consideration by this Court.
Finally, defendant argues that pursuant to the decision of the New York Court of Appeals in 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.

The Court does not agree that the SORA statute as applied is “punitive” rather than “regulatory” and for that reason is unconstitutional. The criminal 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.

In the court’s view, there is no evidence that the RAI provides probative information about the risk that a sex offender will re-offend. Its determinations in this respect are simply arbitrary. It is also the court’s view that the ability of criminal courts to depart from the presumptive RAI score does not cure the due process deficiencies inherent in the instrument.

Although the court thus agrees with the second of Defendant’s constitutional claims, those issues have already been rejected by the First Department in the Ferrer matter as well as numerous prior appellate rulings. This Court is obviously bound by those determinations and has followed them. For that reason, Defendant’s second constitutional claim is also denied.
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 this 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.

Following that hearing on 8 June 2010, 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.

The court’s review of the court file indicates that the defendant repeatedly struck an 86 year old woman with a blunt object causing lacerations and a loss of consciousness. As the victim lost consciousness, she felt her attacker pull her pants down. When she awoke her pants and shoes had been removed. She had significant bruising on her hands and back and required surgery for an eye injury which was caused during the attack. She identified her rape attacker as a person she knew from the building she lived in and said he had lived there for about five years.

The defendant allegedly told the arresting police officer that he came out to the garden of the senior citizens housing complex where the assault occurred to get drunk and pass out. He also admitted that he knew the victim. When interviewed in preparation for his pre-sentence report, he denied his guilt but said he wanted his guilty plea to stand. He asserted that he had “blacked out” and that someone else had tried to rob the victim. In written submissions and at argument, defendant’s counsel argued that the evidence against the defendant was highly suspect and that despite his guilty plea and the complainant’s grand jury testimony, there was not reliable evidence that he was guilty of the instant robbery crime.

The court also finds that the defendant has a criminal history which dates back to the 1950’s and includes a number of sex crimes committed in Virginia. The details surrounding those convictions are not completely clear from his criminal history. He was convicted of the crime of “Rape” in Virginia in 1955 and initially received a five year prison sentence which may have been subject to early termination. He was convicted of a crime called “Felony Cutting with Intent to Maim”, again in Virginia, in 1957. He apparently received a five year sentence for this crime. He was convicted again of the crime of “Rape” in 1962 and apparently given a sentence of 6 years and 8 months imprisonment. He was convicted of Arson in the Second Degree in New York in 1985. He received a sentence of 90 months to 25 years incarceration for that crime.

A reception and classification system report in the court file, which was apparently prepared by the Department of Correctional Services in 2003 when the defendant began his prison term for the instant offense, provides some additional information about his sex crimes although the source and reliability of this information is unclear. In this report it is noted that his rape convictions involved both a juvenile and an elderly woman. It is noted that the maiming incident involved his wife while the arson case involved setting fire to his girlfriend’s apartment. It is also noted that he acknowledged drinking excessively and said he was friends with the victim in the instant offense. He denied committing the instant crime but also said he had blacked out and was unable to remember the crime. At argument, defendant’s counsel challenged criminal history information indicating that the defendant had been convicted of rape in 1955 and 1962 urging that there was not a sufficient basis to determine that these convictions in fact concerned him. Counsel contends that the criminal Court had not been provided with any information about what the elements of the crime called “Rape” were in Virginia in 1955 and 1962.

On the other hand, the Case Summary prepared by the Board of Examiners of Sex Offenders indicates that the defendant’s behavior while incarcerated has been “satisfactory” and that he was progressing in a sex offender treatment program but was removed from that program “though no fault of his own.”

In the case at bar, the defendant’s initial claim is that the SORA statute is “punitive” rather than “regulatory.” For this reason, he asserts, an offender subject to SORA is entitled to the full panoply of rights enjoyed by criminal defendants. The Second Circuit conducted an extensive analysis of that issue in 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 appellate courts. 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 offenders now make the statute punitive.

The 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 also 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.

Defendant also claims that SORA risk assessment procedures violate due process. The 5th and 14th Amendments to the United States Constitution and Article I, §6 of the New York State Constitution provide that no person shall be deprived of life, liberty or property without due process of law. The courts have articulated two distinct doctrines which protect persons under the due process clause: procedural and substantive due process.

The defendant, however, does not indicate which doctrine he believes is violated by SORA risk assessment procedures. He cites the United States Supreme Court decision which is normally cited in support of claims that the procedures for depriving a person of a protected liberty interest violate due process, Matthews v Eldridge. Procedural due process places constraints on the government’s deprivation of a person’s liberty or property rights. It provides that a person must have notice of such a potential deprivation and a right to be heard and contest it.
“Substantive due process”, on the other hand, bars certain governmental actions regardless of their procedural fairness. It prohibits abuses of governmental power which are arbitrary and without “reasonable justification in the service of a legitimate governmental objective as held in City of Sacramento v Lewis. Although the defendant apparently urges that SORA classification procedures violate procedural due process, the New York Court of Appeals recently analyzed a claim with some similarity to the one here under the substantive due process doctrine in People v Knox.

Given the fact that defendant’s claims are subject only to rational basis scrutiny it is clear that many of the anomalies of the SORA classification process outlined in this Opinion are not constitutionally defective. In this category, in the court’s view, are the fact that the RAI includes points which are based on purely subjective “harm” determinations and policy preferences rather than risk assessments; the fact that the RAI classifies a significant majority of possible scores under the instrument as Level 3 offenders at high risk for re-offense for no apparent reason; the fact that the RAI’s assessments of harm are largely inconsistent with those of the Legislature and the fact that the RAI presumes the harm caused by an instant offense is identical to the harm caused by any future criminal offense.

In the Court’s view, however, a number of the RAI’s characteristics are simply arbitrary and without any rational basis. In this category is the fact that: -The RAI has not been updated for 15 years, even though the most relevant knowledge in the field of sex offender risk assessment has been obtained during that period; -Most of the RAI’s risk factors have no known relationship to the risk of recidivism; -Many of the most significant factors known to be correlated to the risk for re-offense are not included in the RAI; -The number of points assessed for the RAI’s various risk factors appear to be simply arbitrary; -The RAI has never been tested, measured or attempted to be validated to see if it has any predictive validity even though the data necessary for such an assessment is readily available to the State; and -A number of the RAI’s risk measurement parameters, including Suggested Departures, produce predictably patently irrational results in a wide range of cases.

It is the arbitrary nature of these risk assessment parameters which makes the RAI, in the court’s view, violative of due process. The RAI does not use scientific studies whose most recent vintage dates from 1995 because of a determination that, in the field of sex offender risk assessment, it is archaic rather than modern scientific evidence which is most valid. It has relied upon outdated and inaccurate assumptions to classify 30, 000 sex crimes offenders because for the past 15 years no one has bothered to update the instrument. The RAI does not designate multiple factors as correlated with the risk for re-offense which have no known relationship to recidivism because there is disagreement in the scientific community about the predictive value of such factors. Many of these factors simply have no known predictive validity at all.

The RAI does not fail to incorporate some of the most significant criminal factors which predict the risk of re-offense because the creators of the instrument made a considered judgment that those principles were not in fact predictive. The instrument simply omits those factors for no apparent reason. The RAI does not lead to predictably irrational results in many cases because those results are the necessary consequence of largely rational calculations and the necessity to draw lines somewhere. Those irrational results arise because the instrument’s scoring parameters were drawn in 1996 by five state employees who apparently never considered how some of their mathematical calculations might lead to patently irrational outcomes. The wellspring of these determinations is not reason.

The court is of the opinion that if sex offender risk assessment is worth doing as the legislature states, it is worth doing correctly. The stakes, to our cherished liberties and to our families and children are too high. New York’s dedicated prosecutors, defense lawyers and judges are surely more than capable of adjudicating risk levels based on reliable evidence, clearly articulated standards and the exercise of sound discretion.
In the view of the court, it can and must do better.

New York Sex Crime Attorneys, New York Rape Attorneys and Stephen Bilkis & Associates are open to discuss the issues in the case mentioned above. If you have queries, please do not hesitate to call our toll free number or visit our firm. We are more than willing to help you with your legal problems.

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