A04591 Summary:

BILL NO    A04591A

SAME AS    SAME AS S03138-A

SPONSOR    O'Donnell (MS)

COSPNSR    Aubry

MLTSPNSR   Perry

Amd SS168-d, 168-k, 168-l & 168-n, Cor L

Relates to sex offender risk assessment instruments.
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A04591 Actions:

BILL NO    A04591A

02/06/2013 referred to correction
05/21/2013 reported referred to codes
06/04/2013 reported referred to rules
01/08/2014 referred to correction
05/19/2014 amend and recommit to correction
05/19/2014 print number 4591a
06/02/2014 reported referred to rules
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A04591 Votes:

There are no votes for this bill in this legislative session.
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A04591 Memo:

BILL NUMBER:A4591A

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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A04591 Text:

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

                                        4591--A

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   February 6, 2013
                                      ___________

       Introduced  by  M. of A. O'DONNELL, AUBRY -- Multi-Sponsored by -- M. of
         A. PERRY -- read once and referred to the Committee on  Correction  --
         recommitted to the Committee on Correction in accordance with Assembly
         Rule  3,  sec.  2  --  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:

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

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00904-02-4
       A. 4591--A                          2

    1  district  attorney  to  obtain  materials relevant to the determinations
    2  from any state or local facility, hospital, institution, office, agency,
    3  department or division. Such materials may be obtained  by  subpoena  if
    4  not voluntarily provided to the requesting party. In making the determi-
    5  nations,  the court shall review any victim's statement and any relevant
    6  materials and evidence submitted by the sex offender  and  the  district
    7  attorney  and the court may consider reliable hearsay evidence submitted
    8  by either party provided that it  is  relevant  to  the  determinations.
    9  Facts  previously  proven at trial or elicited at the time of entry of a
   10  plea of guilty shall be  deemed  established  by  clear  and  convincing
   11  evidence  and  shall not be relitigated. The court shall render an order
   12  setting forth its determinations and the findings of  fact  and  conclu-
   13  sions  of law on which the determinations are based. A copy of the order
   14  shall be submitted by the court to the  division.  Upon  application  of
   15  either  party,  the  court  shall  seal any portion of the court file or
   16  record which contains material that is confidential under any  state  or
   17  federal  statute.  Either  party  may  appeal as of right from the order
   18  pursuant to the provisions of articles fifty-five, fifty-six and  fifty-
   19  seven  of  the  civil  practice  law  and  rules. Where counsel has been
   20  assigned to represent the sex offender upon  the  ground  that  the  sex
   21  offender  is financially unable to retain counsel, that assignment shall
   22  be continued throughout the pendency of the appeal, and the  person  may
   23  appeal  as  a  poor  person pursuant to article eighteen-B of the county
   24  law.
   25    S 2. Subdivision 2 of section 168-k of the correction law, as  amended
   26  by chapter 684 of the laws of 2005, is amended to read as follows:
   27    2.  The  division  shall  advise  the  board that the sex offender has
   28  established residence in this state. The board shall  determine  whether
   29  the  sex  offender  is  required to register with the division. If it is
   30  determined that the sex offender is required to register,  the  division
   31  shall  notify the sex offender of his or her duty to register under this
   32  article and shall require the sex offender to sign  a  form  as  may  be
   33  required by the division acknowledging that the duty to register and the
   34  procedure  for  registration has been explained to the sex offender. The
   35  division shall obtain on such form the address where  the  sex  offender
   36  expects to reside within the state and the sex offender shall retain one
   37  copy of the form and send two copies to the division which shall provide
   38  the  information to the law enforcement agency having jurisdiction where
   39  the sex offender expects to reside within  this  state.  No  later  than
   40  thirty days prior to the board making a recommendation, the sex offender
   41  shall  be  notified  that his or her case is under review and that he or
   42  she is permitted to submit to the board any information relevant to  the
   43  review.  After  reviewing  any  information  obtained,  and applying the
   44  guidelines AND RISK ASSESSMENT  INSTRUMENT  established  in  subdivision
   45  five  of  section  one  hundred sixty-eight-l of this article, the board
   46  shall within sixty calendar days make  a  recommendation  regarding  the
   47  level of notification pursuant to subdivision six of section one hundred
   48  sixty-eight-l  of  this  article  and whether such sex offender shall be
   49  designated a sexual predator, sexually violent  offender,  or  predicate
   50  sex  offender  as  defined  in  subdivision seven of section one hundred
   51  sixty-eight-a of this article.  This recommendation shall  be  confiden-
   52  tial  and  shall  not  be  available  for public inspection. It shall be
   53  submitted by the board to the county court or supreme court and  to  the
   54  district  attorney in the county of residence of the sex offender and to
   55  the sex offender. It shall be the duty of the county  court  or  supreme
   56  court  in  the  county  of  residence  of the sex offender, applying the
       A. 4591--A                          3

    1  guidelines AND RISK ASSESSMENT  INSTRUMENT  established  in  subdivision
    2  five  of section one hundred sixty-eight-l of this article, to determine
    3  the level of notification pursuant to subdivision  six  of  section  one
    4  hundred  sixty-eight-l  of  this  article  and whether such sex offender
    5  shall be designated a sexual predator,  sexually  violent  offender,  or
    6  predicate  sex  offender  as defined in subdivision seven of section one
    7  hundred sixty-eight-a of this article. At least thirty days prior to the
    8  determination proceeding, such court shall notify the district  attorney
    9  and  the  sex  offender,  in  writing,  of the date of the determination
   10  proceeding and the court shall also provide the  district  attorney  and
   11  sex  offender  with a copy of the recommendation received from the board
   12  and any statement of the reasons for the  recommendation  received  from
   13  the  board.  This  notice  shall  include  the  following statement or a
   14  substantially similar statement:  "This  proceeding  is  being  held  to
   15  determine  whether you will be classified as a level 3 offender (risk of
   16  repeat offense is high), a level 2 offender (risk of repeat  offense  is
   17  moderate),  or  a  level  1 offender (risk of repeat offense is low), or
   18  whether you will be designated as a sexual predator, a sexually  violent
   19  offender  or a predicate sex offender, which will determine how long you
   20  must register as a sex offender and how much information can be provided
   21  to the public concerning your registration. If you  fail  to  appear  at
   22  this  proceeding,  without  sufficient  excuse, it shall be held in your
   23  absence. Failure to appear may result in a longer period of registration
   24  or a higher level of community notification because you are not  present
   25  to offer evidence or contest evidence offered by the district attorney."
   26  The  court shall also advise the sex offender that he or she has a right
   27  to a hearing prior to the court's determination, that he or she has  the
   28  right  to be represented by counsel at the hearing and that counsel will
   29  be appointed if he or she is financially unable  to  retain  counsel.  A
   30  returnable  form  shall  be  enclosed  in  the court's notice to the sex
   31  offender on which the sex offender may apply for assignment of  counsel.
   32  If  the  sex  offender  applies  for assignment of counsel and the court
   33  finds that the offender is financially unable  to  retain  counsel,  the
   34  court  shall  assign  counsel  to represent the sex offender pursuant to
   35  article eighteen-B of the county law. If the district attorney  seeks  a
   36  determination  that  differs  from  the  recommendation submitted by the
   37  board, at least ten days  prior  to  the  determination  proceeding  the
   38  district  attorney  shall  provide  to  the court and the sex offender a
   39  statement setting forth the determinations sought by the district attor-
   40  ney together with the reasons for seeking such determinations. The court
   41  shall allow the sex offender to appear and be  heard.  The  state  shall
   42  appear  by the district attorney, or his or her designee, who shall bear
   43  the burden of proving the facts supporting the determinations sought  by
   44  clear  and convincing evidence. It shall be the duty of the court apply-
   45  ing the guidelines AND RISK ASSESSMENT INSTRUMENT established in  subdi-
   46  vision  five  of  section  one  hundred sixty-eight-l of this article to
   47  determine the level of  notification  pursuant  to  subdivision  six  of
   48  section  one  hundred sixty-eight-l of this article and whether such sex
   49  offender shall be designated a sexual predator, sexually violent  offen-
   50  der,  or  predicate  sex  offender  as  defined  in subdivision seven of
   51  section one hundred sixty-eight-a of this  article.  Where  there  is  a
   52  dispute  between  the  parties  concerning the determinations, the court
   53  shall adjourn the hearing as necessary to permit the sex offender or the
   54  district attorney to obtain materials  relevant  to  the  determinations
   55  from the state board of examiners of sex offenders or any state or local
   56  facility, hospital, institution, office, agency, department or division.
       A. 4591--A                          4

    1  Such  materials  may be obtained by subpoena if not voluntarily provided
    2  to the requesting party. In making the determinations  the  court  shall
    3  review  any  victim's  statement and any relevant materials and evidence
    4  submitted  by  the sex offender and the district attorney and the recom-
    5  mendation and any material submitted by  the  board,  and  may  consider
    6  reliable hearsay evidence submitted by either party, provided that it is
    7  relevant  to  the determinations. If available, facts proven at trial or
    8  elicited at the time of a plea of guilty shall be deemed established  by
    9  clear  and  convincing  evidence and shall not be relitigated. The court
   10  shall render an order setting forth its determinations and the  findings
   11  of  fact and conclusions of law on which the determinations are based. A
   12  copy of the order shall be submitted by the court to the division.  Upon
   13  application  of  either  party,  the court shall seal any portion of the
   14  court file or record which contains material that is confidential  under
   15  any  state  or federal statute. Either party may appeal as of right from
   16  the order pursuant to the provisions of articles  fifty-five,  fifty-six
   17  and  fifty-seven  of the civil practice law and rules. Where counsel has
   18  been assigned to represent the sex offender upon the ground that the sex
   19  offender is financially unable to retain counsel, that assignment  shall
   20  be  continued  throughout the pendency of the appeal, and the person may
   21  appeal as a poor person pursuant to article  eighteen-B  of  the  county
   22  law.
   23    S  3.  Subdivision  5  and  the  opening paragraph of subdivision 6 of
   24  section 168-l of the correction law, subdivision 5 as added  by  chapter
   25  192  of  the laws of 1995, subparagraph (i) of paragraph (a) of subdivi-
   26  sion 5 and the opening paragraph of subdivision 6 as amended by  chapter
   27  11  of  the laws of 2002, are amended and a new subdivision 5-a is added
   28  to read as follows:
   29    5. The board shall develop guidelines and procedures AND USE  A  VALI-
   30  DATED  RISK ASSESSMENT INSTRUMENT to assess the risk of a repeat offense
   31  by such sex offender and the threat posed to  the  public  safety.  SUCH
   32  RISK  ASSESSMENT INSTRUMENT SHALL BE PERIODICALLY SUBJECTED TO EMPIRICAL
   33  RE-VALIDATION.  Such  guidelines  shall  [be  based  upon,]  INCORPORATE
   34  FACTORS  FOUND TO BE PREDICTIVE OF RISK OF RE-OFFENSE, INCLUDING but not
   35  limited to, the following:
   36    (a) criminal  history  factors  indicative  of  high  risk  of  repeat
   37  offense, including:
   38    (i)  whether  the sex offender has a mental abnormality or personality
   39  disorder that makes him or her likely to engage  in  predatory  sexually
   40  violent offenses;
   41    (ii)  whether the sex offender's conduct was found to be characterized
   42  by repetitive and compulsive behavior, associated with drugs or alcohol;
   43    (iii) whether the sex offender served the maximum term;
   44    (iv) whether the sex offender committed the felony sex offense against
   45  a child;
   46    (v) the age of the sex offender at the time of the commission  of  the
   47  first sex offense;
   48    (b)  other  criminal  history  factors to be considered in determining
   49  risk, including:
   50    (i) the relationship between such sex offender and the victim;
   51    (ii) whether the offense involved the use of  a  weapon,  violence  or
   52  infliction of serious bodily injury;
   53    (iii) the number, date and nature of prior offenses;
   54    (c)  conditions of release that minimize risk or re-offense, including
   55  but not limited to  whether  the  sex  offender  is  under  supervision;
       A. 4591--A                          5

    1  receiving  counseling, therapy or treatment; or residing in a home situ-
    2  ation that provides guidance and supervision;
    3    (d)  physical  conditions  that minimize risk of re-offense, including
    4  but not limited to advanced age or debilitating illness;
    5    (e) whether psychological or psychiatric profiles indicate a  risk  of
    6  recidivism;
    7    (f) the sex offender's response to treatment;
    8    (g) recent behavior, including behavior while confined;
    9    (h)  recent  threats  or  gestures  against  persons or expressions of
   10  intent to commit additional offenses; and
   11    (i) review of any victim impact statement.
   12    5-A. (A) THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND  THE  DIVI-
   13  SION OF CRIMINAL JUSTICE SERVICES SHALL MAINTAIN A STATEWIDE DATABASE OF
   14  SEX OFFENDER RECIDIVISM STATISTICS.
   15    (B)  THE BOARD IN CONSULTATION WITH THE DEPARTMENT AND THE DIVISION OF
   16  CRIMINAL JUSTICE SERVICES SHALL CONDUCT A PERIODIC RETROACTIVE STUDY  AT
   17  LEAST  EVERY  FIVE  YEARS  TO DETERMINE THE PREDICTIVE VALUE OF THE RISK
   18  ASSESSMENT INSTRUMENT USED TO ASSIGN RISK OF REPEAT  OFFENSE  LEVELS  TO
   19  SEX  OFFENDERS  PURSUANT  TO SUBDIVISION SIX OF THIS SECTION. AFTER EACH
   20  SUCH STUDY THE BOARD SHALL PREPARE A DETAILED REPORT TO THE GOVERNOR AND
   21  LEGISLATURE DETERMINING THE PREDICTIVE  VALUE  OF  THE  RISK  ASSESSMENT
   22  INSTRUMENT  AND  THE  PREDICTIVE  VALUE OF EACH FACTOR CONSIDERED IN THE
   23  OVERALL RISK ASSESSMENT WHEN APPLIED TO  THE  STATEWIDE  DATABASE  MAIN-
   24  TAINED  PURSUANT  TO PARAGRAPH (A) OF THIS SUBDIVISION. THE REPORT SHALL
   25  INCLUDE RECOMMENDED  CHANGES  TO  THE  GUIDELINES  AND  RISK  ASSESSMENT
   26  INSTRUMENT  TO  ENHANCE THEIR PREDICTIVE CAPABILITIES FOR THE PURPOSE OF
   27  PERIODIC REVALIDATION OF SUCH GUIDELINES AND RISK ASSESSMENT  INSTRUMENT
   28  PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE FIRST SUCH STUDY SHALL
   29  BE COMPLETED WITHIN TWO YEARS OF THE EFFECTIVE DATE OF THIS SUBDIVISION.
   30    Applying   these   guidelines   AND   THE  VALIDATED  RISK  ASSESSMENT
   31  INSTRUMENT, the board shall within sixty  calendar  days  prior  to  the
   32  discharge,  parole,  release to post-release supervision or release of a
   33  sex offender make a recommendation which shall be confidential and shall
   34  not be available for public inspection, to the sentencing  court  as  to
   35  whether  such  sex offender warrants the designation of sexual predator,
   36  sexually violent offender, or  predicate  sex  offender  as  defined  in
   37  subdivision  seven of section one hundred sixty-eight-a of this article.
   38  In addition, the guidelines AND SUCH INSTRUMENT shall be applied by  the
   39  board  to  make  a recommendation to the sentencing court which shall be
   40  confidential and shall not be available for public inspection, providing
   41  for one of the following three levels of notification depending upon the
   42  degree of the risk of re-offense by the sex offender.
   43    S 4. Subdivisions 1 and 2 of section  168-n  of  the  correction  law,
   44  subdivision  1 as amended by chapter 11 of the laws of 2002 and subdivi-
   45  sion 2 as amended by chapter 453 of the laws of  1999,  are  amended  to
   46  read as follows:
   47    1.  A  determination  that  an offender is a sexual predator, sexually
   48  violent offender, or predicate sex offender as  defined  in  subdivision
   49  seven of section one hundred sixty-eight-a of this article shall be made
   50  prior  to  the discharge, parole, release to post-release supervision or
   51  release of such offender by the sentencing court applying the guidelines
   52  AND RISK  ASSESSMENT  INSTRUMENT  established  in  subdivision  five  of
   53  section  one  hundred  sixty-eight-l  of  this article after receiving a
   54  recommendation from the board pursuant to  section  one  hundred  sixty-
   55  eight-l of this article.
       A. 4591--A                          6

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