In Part 1 of this article, I outlined what I believe are the significant flaws in the Risk Assessment Instrument (the RAI) New York courts are required to use to assess sex offender risk under the Sex Offender Registration Act (SORA or Megan's Law, Article 6-C of the Correction Law). Under SORA, courts are required to designate offenders as being at low, moderate or high risk to re-offend. The rankings not only determine the length and intrusiveness of sex offender registration and community notification, which often last for life, but vital collateral matters, like whether offenders may live within 1,000 feet of a school, receive Section 8 housing vouchers or live in public housing. The RAI is primarily designed to measure the risk that a sex offender will re-offend and the harm which would be caused by a re-offense.

As I outlined in Part 1, there is little evidence the RAI, which was created by a state entity, the Board of Examiners of Sex Offenders (the Board) in 1996, has any predictive value. But the RAI is not the final word on court risk assessments. Rather, courts may depart up or down from the presumptive risk level set by the RAI if a court finds there are factors the instrument did not adequately consider. Part 2 of this article will explain why court departure determinations do not effectively remedy the RAI's flaws.