New York state’s highest court recently reversed a defendant’s level three sex offender designation because, even though he did not complete treatment in prison, he was prevented from doing so by his poor prison disciplinary record. Under risk factor 12, ten points are assessed for failure to accept responsibility, and 15 are assessed for offenders who refuse sex offender treatment or are expelled. But in People v. Ford, the defendant did not exactly refuse treatment in prison: he was ineligible because he had so many disciplinary violations. The lower courts did not buy that argument and imposed the 15 points anyway. The Court of Appeals reasoned that —
defendant’s inability to participate in sex offender treatment due to his disciplinary violations was not tantamount to a refusal to participate in treatment under the SORA Guidelines. … Conduct that places a defendant in a position where he or she could not receive treatment is not equal to refusal to participate in treatment.
As a result, no points should have been assessed under factor 12. The People could, however, seek an upward departure on the ground that the defendant’s prison record was not adequately taken into account by the SORA Risk Assessment Instrument.