In New York State, reducing or lowering a sex offender level classification is certainly possible. Individuals seeking to modify their level would be wise to begin planning early, even years ahead, before filing a petition. Case law is the primary indicator of what courts rely upon when making a determination for a SORA risk level reduction. While there exists no magic formula, there are many common factors which make for a successful petition to lower a SORA level. Knowing what the most important factors are, and planning ahead, will put a petitioner in the best possible position for a level reduction when the time is appropriate.
Factor 1: Considerable time crime-free while in the community
More than anything, this is the single most persuasive factor in a modification petition. A widely cited study found that the longer a person remained offense-free in the community, the less likely he was to commit another sex offense. 14% of sex offenders who spent time in custody re-offended within five years. With each additional five years that pass, the recidivism rate was cut in half to 7%. (Harris, Andrew & Hanson, R.Karl. (2009). Sex Offender Recidivism: A Simple Question.)
A more recent study concluded,“During the past decade, researchers have examined desistance (the stopping of a behavior)….these studies find that after about 10 years offense-free (5 years for juveniles), the risk presented by most individuals with a criminal record is not meaningfully different from that of the general population.” This held true for all crimes, including sex offenses. (Hanson, R.Karl. (2018). Long-Term Recidivism Studies Show That Desistance Is the Norm. Criminal Justice and Behavior. 45)
The Board of Examiners, along with supporting case law, give particular weight to time offense-free while not under supervision. Although there is no precise amount of time mentioned by the Board, history suggests that the average total time offense-free in successful petitions is around 10 years, with some extreme cases as low as 6 years. While not actual law, the strongest cases for time offense-free are those who have been off of probation for at least a few years. However, for those still on probation, working with an attorney on the process several years ahead can be extremely beneficial.
Factor 2: Compliance with Terms of Supervision
Among other cases, in People v. Barber, the Court found that “the defendant’s compliance with such programming and the other terms of his probation and supervision presents a compelling change in circumstances indicative of a diminished risk of repeat offense, as well as a diminished threat to public safety.” Petitioners who successfully complete supervision without incident have the best chance for a reduction.
Factor 3: Successful Completion of Treatment
Until recently, it was a widespread myth that treatment for those who have committed as sex offense does not work. In recent years, research has found quite the opposite. One study from 2005 found a 37% decrease in recidivism rates for those who completed treatment. (Lösel, Friedrich & Schmucker, Martin. (2005). The Effectiveness of Treatment for Sexual Offenders: A Comprehensive Meta-Analysis. Journal of Experimental Criminology)
In its own Guidelines, the Board notes that treatment may reduce a person’s risk, even relying on it as a basis for downward departure where the response to treatment is exceptional. “The SORA Risk Assessment Guidelines and Commentary recognize that ‘[a]n offender’s response to treatment, if exceptional, can be the basis for a downward departure'” (People v. Migliaccio), quoting the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at page 17
Factor 4: Living with an intimate partner for a period of two or more years
If a person has maintained a relationship over a period of time, it has been accepted as a preventative factor. “On the whole, we know that the relative risk to sexually reoffend is lower in men who have been able to form and maintain intimate partnerships….The intent of this item is to reflect whether the person has the personality/psychological resources as an adult to establish a relatively stable “marriage-like” relationship with another person. (Hanson Static-99R Coding Rules, Revised-2016).
Factor 5: Advanced Age
Recent studies have found that most people over the age of 50 rarely reoffend. It is important to note that this factor would typically not apply if the person was already of an advanced age when the crime was committed.
Advanced age is noted as a mitigating factor in both NYS Law [§ 168-l (5)(d)] and in the Board’s Guidelines (Guideline p. 5). The data on recidivism shows that reoffense is unlikely with advanced age. Advanced age is also accepted as a mitigating factor and “may constitute a basis for a downward departure” in case law. Beyond age 60, recidivism rates dramatically reduce. Hanson, R.K., Does Static-99 Predict Recidivism Among Older Sex Offenders? (2006).
Factor 6: Significant Stabilizing Factors
Stability is a person’s life can greatly reduce the risk of reoffense. These factors include, but are not limited to: family support, employment history, education, volunteerism, and pro-social activities. Case law supports these factors as reasons for modification and downward departures.
Factor 7: Recent Risk Assessment By Qualified Clinician
Having an updated evidence-based assessment by a clinician such a a Psychiatrist or Licenced Social Care Worker experienced in sex offense treatment can be powerful testimony in a reduction hearing. In the decades since the creation of New York State’s SORA, many new tests and tools have been developed which can provide greater insight into a person’s risk level that may have been previously unavailable. Case law tends to give significant weight to this factor in downward departures and modifications.
The process to lower a sex offense registry level can be overwhelming and confusing. The law is difficult to understand and it is important to have everything lined up properly before submitting a petition. People who have lived safe and high functioning lives for an extended period of time in the community are good candidates for a level modification. Reducing this classification can have a dramatic impact on a person’s life, and in some cases, a reduction actually results in complete removal from the NY State sex offender registry if enough time has passed.