SORA AND THE COURTS
New York’s Sex Offender Registration Act (SORA) is a foolish and malevolent piece of legislation. Courts are apparently completely on board, uncritically accepting SORA’s premise that persons convicted of any of a long list of “sex offenses” are a kind of Pod People posing a permanent danger to society. Far from upholding the Constitution in the face of this madness, courts are throwing basic evidentiary and due process principles out the window in the name of “public safety.”
What SORA Does
SORA requires that, before re-entering the community, all persons convicted of an enumerated offense have their personal information placed on a sex offender registry maintained by the New York Division of Criminal Justice Services (DCJS). “Sex offenses” under SORA are not limited to offenses involving sex.
SORA mandates an adversarial hearing before a criminal trial court where the state is represented by the local District Attorney’s Office. The purpose of a SORA classification is supposedly not to inflict a second punishment, but to evaluate whether the person is likely to commit another sex offense in the future. All SORA registrants are at least level one from the fact of the conviction alone. If the state seeks a level two or three classification, it must show by clear and convincing evidence that the defendant presents a moderate or high risk of sexually reoffending.
Level three registrants must report in person to the local police every ninety days for the rest of their lives. Level two requires annual registration for life, while level one registration is either for life or for 20 years, depending on the underlying offense. Failing to keep up with the registration requirements is a felony.
Level two and three registrants have their photographs, home and work addresses and other personal information displayed on the DCJS Sex Offender Registry website, which is unrestrictedly available to anyone. The website does not merely inform the public of the offense of conviction, but adds “designations” such as “sexually violent offender” or “sexual predator.” The website includes an “offense description” which may include additional allegations that have never been proved.
Level one registrants are not posted on the website, but the police are allowed to disseminate their personal information, for example by posting flyers or going from door to door. There is also a free telephone number which you may check to see if your neighbors are sex offenders. The DCJS also offers a “relocation alert” to inform you by e-mail, text or fax if a level two or three registrant “moves in or out of a community or location of interest to you or your family.”
According to DCJS statistics, approximately 2,000 persons are added to the registry every year. Of the more than 30,000 registrants as of 2010, about 60% have been adjudicated as level two or three.
As a result of being publicly stigmatized as sex offenders, SORA registrants are fired, denied employment, evicted, and ejected from public housing, so that often they cannot live with their families. In a recent case, a couple lost custody of their children solely because the father had been classified as level three.
SORA registrants are subjected to residency restrictions, causing many to become homeless. They may be refused access to social services and barred altogether from many public places such as beaches and parks. They face a lifetime of legalized humiliation and harassment by the public and the police.
Critiques of SORA
Ever since the enactment of SORA and similar laws in other states, there has been increasing criticism from legal scholars, social scientists, psychologists and even law enforcement, who view with alarm their harsh and destabilizing effects. These laws are based on the assumption that “sex offenders” are a uniform class of persons with an innate propensity to sexually assault children and who are much more likely than any other type of offender to be re-arrested for a sex crime.
Well-documented research, however, including findings of the Bureau of Justice Statistics, has shown that this is a myth. In fact, sex offenders as a whole reoffend at a lower rate than other offenders, and most sex offenses are committed by first-time offenders. Most sex offenders do not reoffend. The vast majority of sex offenses against children are not committed by strangers lurking around schools and playgrounds, but by family members and acquaintances. A recent study analyzing DCJS statistics concludes that, for those reasons, public notification has had no meaningful impact on sexual reoffending.
Although the Supreme Court has so far upheld these laws, individual justices have expressed deep skepticism of their purportedly non-punitive, purely regulatory motive. In a decision scrutinizing the constitutionality of Alaska’s version of SORA, Justice Souter questioned the state’s claim that it was a civil regulation for promoting public safety, observing that “it would be naive to look no further, given pervasive attitudes towards sex offenders,” and that the statute is “probably sweeping in a significant number of people who pose no real threat to the community.” Although Justice Souter ultimately gave the statute “the benefit of the doubt,” three dissenting justices agreed with him that the statute’s “ulterior purpose is to revisit past crimes, not prevent future ones.”
SORA in Practice
The State Assembly debates illustrate the hysterical, scapegoating mentality behind SORA:
“Repeat sexual predators, especially those that prey on children, are the human equivalent of toxic waste.”
“Today, vote for this bill, take a chance regardless of what it may be, the Constitution, the apprehension. Don’t give the protection to the animals, don’t give it to the people exploiting children, protect the children.”
“The usual defenders of the depraved, once again, we are worried about the constitutional rights of the criminals. Finally, a bill addresses the right of society.”
“I have listened to people say, ‘Well, these people are wrongly criticized, they will be wrongly abused in their neighborhoods.’ You know what? I don’t care.”
“And I will tell you personally, I think these people have no rights.”
Despite the legislative intent to treat sex offenders as toxic waste, the Second Circuit originally required SORA to include due process protections, thanks to litigation brought by “the usual defenders of the depraved.” These include the right to an adversary hearing where the state has the burden to prove by clear and convincing evidence that the individual, who has already been convicted and punished for a sex offense, presents a high or moderate risk of committing another sex offense after being released to the community. Although hearsay is admissible, it must be shown to be reliable.
The courts are not upholding these protections. Although a lifetime deprivation of important liberty interests is at stake, the typical SORA hearing is a perfunctory affair where courts base their determinations on a combination of a pseudo-scientific “risk assessment instrument,” together with uncorroborated hearsay that would not even be admissible in a civil lawsuit, let alone considered “reliable hearsay” or “clear and convincing evidence.”
No civilized jurisprudence assumes that accusations are true just because they were made. Yet, this is the practice in SORA hearings, despite the requirement of proof by clear and convincing evidence. This standard is defined as “unequivocal” or “highly probable,” “of the most substantial and convincing character,” and not “loose, equivocal or contradictory.” Yet, courts find this standard met by uncorroborated, un-cross-examined hearsay such as grand jury testimony, accusations in felony complaints and police reports, or the opinions in reports of probation officers and other state officials whose function puts them in an inherently adversarial relationship to the defendant.
Grand jury testimony has always been considered inherently unreliable and has never been admissible against a defendant for its truth except under very limited circumstances. The People have never been permitted to use grand jury testimony in related civil cases without first obtaining a written court order based on a showing of a compelling and particularized need. Indeed, in every context outside of SORA, the People scream bloody murder at the suggestion of disclosing grand jury minutes.
In SORA hearings, however, the People have arrogated to themselves the authority to use grand jury minutes as proof of the truth of the allegations that were dismissed in exchange for the defendant’s guilty plea.
So far, no court has seen anything wrong with this.
It offends the most basic principles of due process to deprive persons of civil liberties based on accusations that they have never had the opportunity to defend against. A guilty plea to less than the full indictment constitutes a disposition of the entire indictment and only the facts and circumstances admitted in the allocution may be considered proved. It undermines the integrity of plea bargaining to induce a defendant to give up his right to defend against all the charges in exchange for dismissing some of them, only to inform him at the SORA hearing that the dismissed charges are considered proved.
“Public safety” is not served by undermining hard-won principles of fairness and due process. “Sex offenders” have replaced drug dealers, Communists and witches in gingerbread houses as the scapegoat onto which the public projects its anxieties about children’s safety. Courts and even defense lawyers are taken in by SORA’s Orwellian vocabulary of “classification,” “registration” or “notification” that obscure its wholly punitive character. If the drug laws are any indication, it will be decades before the legislature rethinks SORA, while in the meantime creating a permanent underclass of homeless, unemployable outcasts.
Considering the statute’s dire consequences to defendants and its doubtful connection to public safety, defense lawyers should aggressively litigate SORA hearings, hold the People to their burden of proof and insist on the due process rights it affords. As Justice Holmes said, “The law is made by the Bar, even more than by the Bench.” It is up to the defense bar to slow down the juggernaut.