Relates to sex offender risk assessment instruments

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.