Unclear and Unconvincing Evidence in SORA Hearings

An article entitled "Unclear and Unconvincing Evidence in SORA (Sex Offender Registration Act) Hearings" by Lorca Morello, staff attorney in the Criminal Appeals Bureau, was published by The New York Law Journal on April 18, 2011.

The New York Law Journal
Unclear and Unconvincing Evidence in SORA Hearings
By Lorca Morello

"The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones.

Widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to our shaming punishments that were used earlier in our history to disable offenders from living normally in the community."

Smith v. Doe, 538 U.S. 84, 109 (2002) (Souter, J., concurring)

Editor's Note: This article has been modified to reflect a Correction.

The Sex Offender Registration Act (SORA) is based on the assumption that "sex offenders" are a distinct class of people with an incurable compulsion to sexually assault other people. Unlike with other ex-offenders, the state actively obstructs their re-integration into the community after they have served their sentences. For persons adjudicated as presenting a high or moderate risk of sexually reoffending, SORA imposes onerous registration requirements and a lifetime of public stigma, making normal civic life impossible.

Because SORA creates a permanent deprivation of protected liberty interests, its constitutionality is conditioned on providing significant due process protections. These include the right to a judicial hearing to determine risk level. Since the statute presumes that all sex offenders are a danger to public safety, everyone under SORA is automatically "level one" by default. But if the state seeks a level two or three designation, i.e., moderate or high risk, it must prove the supporting facts by clear and convincing evidence.

Unfortunately, judicial rulings have not always upheld the statute's due process protections. Instead of holding the People to their burden of proof, some rulings have adjudicated SORA registrants as high or moderate risk based on accusations in the criminal complaint, grand jury testimony or even internal law enforcement documents that have never been corroborated or cross-examined. Not only does this result in "sweeping in a significant number of people who pose no real threat to the community," it is a jettisoning of basic, hard-won principles of our legal system. If accusations are presumptively true, what do we need a judicial hearing for?

SORA encompasses anyone convicted of an offense from a long list of felonies and misdemeanors, many not involving public safety and some not even involving sex. All persons under SORA are subjected to registration requirements and "community notification." Persons adjudicated as high or moderate risk have their names, photographs, addresses and other personal information displayed on a website that is unrestrictedly available to anyone in the world—which goes far beyond "community notification." This global stigmatization subjects them to every kind of discrimination and harassment, resulting in homelessness, unemployment and severe impingements on their personal and family lives. Over 32,000 persons in New York State bear the legal status of "sex offender." About 2,000 persons are added every year. Well-documented research, including findings of the Bureau of Justice Statistics, has shown that, contrary to the premise of SORA, sex offenders as a whole reoffend at a lower rate than other offenders, while 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 2008 study analyzing statistics compiled by the New York State Division of Criminal Justice Services concludes that, for those reasons, public notification has had no meaningful impact on sexual reoffending.

"Sex offenders" have replaced drug addicts as the scapegoat for society's anxieties about raising children in a complex world. A few years ago the bogeyman was the drug dealer hanging around schoolyards getting your child addicted to drugs. Before that, it was the Communist brainwashing your child to take orders from Moscow. Before that, it was the witch in the gingerbread house. How much easier to rail against "sex offenders" than deal with the more intractable and controversial problems of parenting, health care or education.

Some New York rulings apparently accept the popular wisdom about sex offenders and appear wholly unskeptical of SORA's claim to be a purely regulatory measure for public safety. The SORA hearing becomes in effect a second sentencing where the People get a second bite at the defendant under a nearly non-existent standard of proof.

Regardless of what the public thinks of sex offenders, judicial rulings have to uphold the constitutional protections that SORA mandates. Clear and convincing evidence is a high standard, requiring proof that is unequivocal and highly probable. It is not a sliding scale depending on whether the defendant is a sex offender or an insurance company. No just legal process considers bare accusations as proof of anything, regardless of whether they are sworn.

Some have sought support from People v. Mingo, 12 NY3d 563, where the Court of Appeals concluded that, under the specific facts of the case, a complainant's accusations in a criminal complaint constituted clear and convincing evidence. The Court noted that the police officer who wrote the complaint had a duty to record, alluding to the business records exception. Mingo also commented that grand jury testimony is "sufficiently trustworthy for SORA purposes" because "although not subject to cross-examination, this evidence is taken under oath, a significant but not indispensable indication of reliability."

However, this is pure dicta, since the reliability of grand jury testimony was not before the Mingo Court. Had it been at issue, the Court would have had to consider cases such as People v. Geraci, 85 NY2d 359, 365 (1995), which say exactly the opposite: although grand jury testimony is taken under oath, it is unreliable because it has not been cross-examined.

The purpose of the grand jury has never been to create substantive evidence but only to determine whether the defendant may be accused of a crime. Not only are the accusations inherently one-sided and not subjected to cross-examination, they are elicited in a secret proceeding by a prosecutor who has no duty to present a balanced case. Therefore, not only is an indictment proof of nothing, grand jury testimony uncorroborated by a conviction has always been considered inherently unreliable.

Mingo also provides no justification for the People's practice of using grand jury minutes as they please in SORA hearings. Had the admissibility of grand jury testimony been at issue, the Court would have had to consider its longstanding holding that, where the People seek to use grand jury testimony in a related civil case, they must, like any other litigant, first seek a written court order based on a showing of a compelling and particularized need.

And Mingo certainly did not intend to alter the business records exception, which applies only when the declarant has a duty to report. A crime victim has no such duty, and the recording police officer is not the declarant unless he has personal knowledge of the facts. In sum, Mingo must be narrowly read.

Public safety is not served by throwing basic principles out the window. SORA is a cruel and foolish law born of unreason and vindictiveness and a throwback to the days of displaying sinners in the marketplace in stocks.

It does nothing for public safety while causing great misery to individuals and creating a permanent underclass. The statute nevertheless requires a high showing before permitting the drastic lifetime deprivation of protected liberty interests that results from being publicly stigmatized by the state as a sex offender. Courts are bound to uphold this protection. Lorca Morello is a staff attorney at The Legal Aid Society.