BILL NUMBER: S3201
SPONSOR: KRUEGER
 
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 instru-
ment.
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 risk
assessment guidelines back in 1995. 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.
An expert panel, including two assistant district attorneys, a probation
officer, a deputy attorney general, a police captain, the ac ting direc-
tor 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 and 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.
Much has developed in the field of stochastic modeling that classify
sexual offenders into different risk categories since 1995. For example,
the California Department of Corrections and Rehabilitation is required
by state law to use a static (unchanging) risk assessment instrument in
addressing an offender's likelihood of sexual re-offense prior to being
released on parole; by Probation to asses s offenders pre-sentencing and
on probation caseloads; and by the Department of State Hospitals prior
to release from a DHS institution.
Research conducted as recently as 2016 has shown that the predictive
accuracy of re-offense can be increased slightly when dynamic (changea-
ble) factors are combined with static (unchangeable) factors. These
dynamic factors include things like substance abuse, personality disor-
ders, deviant sexual interests, emotional identification with children,
and self-regulation problems. Dynamic and violent risk assessment
instruments are also assessed in mandated treatment programs. The combi-
nation of using static, dynamic, and violence instruments will give a
better picture of the overall risk of recidivism for individuals who
have previously sexually offended.
The Static 99/R is the most widely used sexual offender actuarial risk
assessment instrument in the world. The assumptions aggregate criminal
history as well as demographic characteristics to identify the predic-
tors of recidivism. 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 statis-
tical 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-valida-
tion and refinement. The Static 99/R also demonstrates a moderate abili-
ty to identify recidivists and non-recidivists; recent updates include
adding data on older offenders, over 60 years of age, with low recidiv-
ism rates.
Validation studies of the underlying assumptions that are used in actu-
arial risk assessment instruments are extremely important. The Califor-
nia Department of Justice (DOJ) collaborated with the State Authorized
Risk Assessment Tools used for Sex Offenders (SARATSO) Committee and
conducted two validation studies; one in 2014 and another in 2016 on the
Static-99/R risk assessment instrument. Unbiased experts in the field
of risk assessment analyze the data. The studies examined the re-of-
fence rates of parolee and probation offenders. The study concluded that
the overall Static-99/R worked well in predicting the risk of sexual
re-offense along various ethnic groups. The conclusion was that re-of-
fense was less in California than in international samples; that tran-
sients reoffended at higher rates; that the typical sex offender after 5
years of release is likely to offend between 4%12%; after 10 years of
release between 6% -22%.
It is hard to compare the predictive accuracy of New York's current risk
assessment guidelines to guidelines of the Static 99/R; New York guide-
lines have never been tested to see if they in fact accurately predict
the risk of reoffending. Additionally, the instrument has never been
validated. 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. It has been noted by clinical psychologists work-
ing 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; recommendations have been made that the risk assessment guide-
lines should be replaced with more modern and validated instruments such
as those used in the Static 99/R. New York's sex offender registry
should utilize 21st century actuarial derived risk assessment levels.
This will ensure that law enforcement and treatment services focus on
the sex offenders most likely to recidivate. The public and law enforce-
ment 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 the
use of a validated risk assessment instrument like th e Static 99/R will
help the state to identify those high-risk individuals who need to be
watched most closely.
 
LEGISLATIVE HISTORY:
2023-2024 - S.4451 No Same As - Died in Crime Victims
2021-2022 - S.3096 No Same As - Died in Crime Victims
2019-2020 - S.4191/A.7509 O'Donnell - died in Crime Victims/Correction
2017-2018 - S.3711/A.1906 O'Donnell - died in Crime Victims/Correction
2015-2016 - S.3097/A.2190- O'Donnell - died in Crime Victims/Correction
2013-2014 - S.3138-A/A.4591-A O'Donnell - died in Crime Victims/
Correction.
2012 - S.7080/A.9258 Aubry - died in Crime Victims/Correction
 
FISCAL IMPLICATIONS:
None, as the Static 99/R 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.

Statutes affected:
S3201: 168-d correction law, 168-d(3) correction law, 168-k correction law, 168-k(2) correction law