Should Sex Offender Registration Risk Level Determinations be Scientifically Validated?

By Zachary Margulis-Ohnuma

Under New York’s Sex Offender Registration Act, a judge determines risk.  That’s a good thing, because it ensures that the defendant (i.e. convicted sex offender) has an opportunity to be heard.  But the current system is a mess, with an outdated “risk assessment instrument” (“RAI”) that routinely and predictably yields the wrong outcomes by assessing high risk levels to people unlikely to reoffend and low risk levels, in some cases, to those who are more likely to reoffend.  Since the RAI was adopted in 1997, a whole industry of assessing sex offender risk using statistical analysis of actual outcomes has emerged.  Social scientists have developed actuarial risk assessment instruments that use methods adopted from insurance practices to predict the likelihood of re-offense.  But, so far, these tested instruments have not been incorporated into the courts’ assessment of risk except when a client himself hires a psychiatrist to perform them and presents them to the court.

That may soon change.  A bill pending in Albany would, if enacted, require the Board of Examiners of Sex Offenders to consult a “validated risk instrument” when recommending risk levels to the courts.  This would go a long way in ensuring more accurate outcomes at risk assessment hearings.  The New York City Bar Association has come out in favor of the bill, with a useful explanation of the issues addressed.  Until the bill takes effect, clients are encouraged to retain a mental health professional to assist in assessing risk and presenting results to the court at the time of the risk assessment hearing.