How ‘Pseudoscience’ Turns Sex Offenders into Permanent Outlaws

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Photo by Becker1999 via Flickr

A New York Appeals court has rejected the notion that risk prediction under the state’s Sex Offender Registration Act (SORA) should have a scientific basis. According to the July 2017 decision in People v. Curry, courts must not only adhere to a risk assessment instrument (RAI) that has been repeatedly exposed as pseudo-scientific humbug, they may not even consider a scientifically validated instrument such as the Static-99.

It wasn’t the first time. For the 20 years since SORA was enacted, courts have used the RAI to classify individuals after they’ve completed their sentences for a designated “sex offense.” The classifications purport to show the person’s likelihood of committing another sex offense in the future.

Persons adjudicated as level 2 or 3 are thought to be very dangerous indeed, and must register with law enforcement for the rest of their lives.

Their photographs, addresses, and a description of the past offense are made publicly available online at the sex offender registry. They may legally be denied jobs and housing, including shelters. They may be evicted, fired or hounded from the neighborhood by civic-minded vigilantes such as Parents for Megan’s Law.

This looks an awful lot like advance punishment for a future crime, like the science fiction film “Minority Report.” It also looks like a second punishment for a past offense—a practice the Constitution frowns on in the Double Jeopardy Clause.

Not at all, say the courts. SORA isn’t punishment, but merely a regulatory measure to protect public safety. As one legislator put it, it’s like affixing warning labels to toxic substances.

In that case, you’d think everyone would be deeply concerned to make sure that the label is as accurate as possible. It hardly contributes to public safety to broadcast over the Internet that Mr. Jones might commit a sex offense at any minute, when in fact he presents no such risk.

But that’s not how courts think.

Risk level under SORA is determined through an adversarial hearing in criminal court where the prosecutor proffers the RAI and typically seeks the highest possible classification. The RAI is a chart, cobbled together by employees of the Department of Parole, that adds up points for factors such as whether the past offense involved contact over or under clothing, or whether the victim was under age eleven or over 62.

The more points, the higher the risk level.

Defense attorneys have repeatedly proffered peer-reviewed research and the uncontested expert testimony of psychologists specializing in sex offender recidivism showing that the RAI is based on the facile but discredited assumption that “if he did it before he’ll do it again.” The instrument takes no account of the scientific consensus that recidivism isn’t correlated to the perceived heinousness of the past offense.

The scientific articles cited by the RAI are not only outdated; they don’t remotely stand for the conclusions for which they’re cited. Although the RAI purports to be an objective scientific instrument, it uses its own idiosyncratic system of assigning and weighing points that’s heavily biased towards a finding of maximum risk.

We’ve proffered instruments such as the Static-99 and the SVR-20 which, unlike the RAI, have been tested and validated by mental health professionals. In contrast, nobody except New York judges and District Attorneys uses the RAI.

The judicial response ranges from numb indifference to sputtering indignation. The outstanding exception is Daniel Conviser, a trial judge in Manhattan, who issued a 100-page opinion in 2010 after hearing expert testimony. After analyzing the RAI in detail, he concluded that the instrument is so arbitrary that it violates due process. Unfortunately, his decision isn’t binding on other courts and has been ignored.

crystal ball

The crystal ball approach to risk assessment. Illustration by Squawk

It’s like a drug test that can’t tell the difference between coffee and cocaine.

Even courts that recognize that the RAI may not be “the optimal tool” initially reasoned that there’s no harm in using it because it’s “only a recommendation.” But the Court of Appeals subsequently held that the RAI is so “presumptively reliable” that courts are bound by its conclusions unless the defendant can somehow prove that it overestimates his future risk.

The obvious course, until now, was for the defendant to show that a scientifically tested and validated instrument such as Static-99 put him at a lower risk. No dice, says the Appellate Division. Why? Because although the Static-99 measures the probability of re-offending, it doesn’t say what offense the person will commit if he re-offends.

Which conveniently ignores that no matter what the RAI claims, it doesn’t accurately predict anything.

It’s hard to see how this implacable rejection of science squares with the notion that SORA isn’t punishment but merely a regulatory measure to protect public safety. So long as risk prediction is based on the perceived heinousness of the past crime, it’s nothing but punishment under an alias.

There are now over 40,000 New Yorkers on the sex offender registry, most of whom have been adjudicated as level 2 or 3 based on the RAI. Public safety isn’t served by creating a permanent, ever-growing underclass of people who will remain forever barred from normal civic life based on a pseudo-scientific instrument.

Appellate Squawk is the pseudonym of an appellate attorney in New York City, and the author of a satirical legal blog of that name. Readers’ comments are welcomed.