Monday, April 19, 2010

Governor Paterson Proposes Legislation to Strengthen Sex Offender Laws. Will It?

Governor Paterson has proposed legislation for the stated purpose of strengthening sex offender laws. All things considered, the proposed legislation (the text of which is not yet available) makes some relatively minor changes around the margins of a marginally effective tool.

New York States admits that the Sex Offender Registry is only of very limited value in preventing sex crimes. According to the NY Office of Sex Offender Management web site, "The vast majority of sex crimes are committed by someone who is not on the Sex Offender Registry. During 2005-2006, approximately 94% of the persons arrested for sexual offenses in New York State had no prior sex convictions. As a result, these people would not have been on the Sex Offender Registry."

The legislation does fix one glaring inconsistency in current law. Currently, the exact home address of Level 2 ("moderate risk") offenders is listed on the state sex offender registry web site, but the law allows local law enforcement to share only the zip codes of Level 2 offenders.

Another fix also is warranted: "Require high-risk sex offenders and sexual predators to personally appear before the local law enforcement agency within 10 days of release or relocation, instead of the current 90 days."

The other changes are of questionable value, at best, and some present real reasons for concern.

The legislation would open the door to listing juveniles on the sex offender registry, a very serious step.

The legislation would: "Make it a felony for a sex offender to fail to report his or her address as required, even if he or she has not moved from that address."

Sean M. Byrne, Acting Commissioner of the Division of Criminal Justice Services (DCJS), said: "Though it is currently a felony for an offender to fail to verify their address, if they have not moved and simply refuse to obey the law and send in the verification form, there is absolutely nothing we can do about it. Consequently, we are constantly asking law enforcement to find people who, more than 75 percent of the time, aren't missing at all. That is a terrible waste of police resources and an indefensible flouting of the law by these sex offenders. Governor Paterson's bill would address that legal absurdity, and implement several other common sense reforms."

Although one can sympathize with the Governor's desire to cut administrative and compliance costs, having taxpayers pay to incarcerate an individual for at least a year for simply not mailing a return post card hardly seems cost effective.

Another proposal would: "Require that Level 2 sex offenders have a new photograph taken every year, rather than every three years." What's the point? This adds very little value for additional cost.

Another proposal will: "Ensure that all sex offenders registered in other states who move to New York are required to register here...[because] Sex offenders from other states who move to New York State may not have to register in this State."

This proposal is particularly problematic. Under current law, anyone who moves to New York from another state wherein they have committed a crime which requires registration under New York law must register when they move to New York. Under the new proposal, registered sex offenders which move to New York State must register as sex offenders even if their offense is not considered a crime in New York State. For example, New York State does not criminalize consensual sex between an eighteen year old and a sixteen year old as some other states do. (NY requires at least a four year difference in ages to bring criminal charges). Here the Governor is seeking for New York to treat citizens from other states differently than New York citizens. This raises constitutional concerns in relation to the "equal protection" clause of the Fourteenth Amendment. It also bloats the New York sex offender registry with those who present no risk. (Imagine if one of these no risk "offenders" who moves to New York fails to mail in his or her annual address verification post card. New York taxpayers would then have to pay for their imprisonment for a year).

According to the press release: "Mary B. Kavaney, Deputy Secretary for Public Safety, said: 'Over time, and partially as a result of some piecemeal amendments, portions of SORA have become inconsistent with the original intent of the legislation.'

Actually, New York's sex offender registry has strayed even further from the intent of the original law than Kavaney indicates. Under the original version of New York's sex offender registration law, only high risk offenders (violent offenders, repeat offenders, those who targeted strangers) were placed on the public registry. All others were known only by law enforcement. As lower risk individuals have been added to the public registry, its effectiveness has been diluted. Also under the original law, those former offenders who lived safely in the community for ten years were to be dropped from the registry. (After ten years of living safely in the community, chances of recidivism are near zero for most former offenders). The law was subsequently changed so that, to this point, no one has been dropped from the registry. The registry now numbers 30,000, and it (and taxpayers' costs) continue to grow.

If New York would like to get rid of some of its registered sex offenders, it could easily do so with a simple change in the law. Under current law, New York offenders must continue to register in New York even if they move to a state where they are not required to register. If New York no longer required registration of out of state offenders, no doubt some would chose to move to other states.

It is noteworthy that one study has shown that New York's Sex Offender registry has had no effect in reducing crime. A federally funded study by the New Jersey Department of Corrections had similar findings.