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New York’s High Court Rejects Child Pornography Offenders’ Claims Based on Board of Examiners Position Statement

We have written before about how sex offender registration rules routinely lead to defendants being unfairly assessed as moderate- to high-risk offenders. Now, unhappily, the Court of Appeals, which is New York’s highest court, has embraced the harsher — if not more irrational and emotionally charged — approach to these cases, permitting courts to automatically score points against virtually all child pornography offenders. The case is People v. Gillotti and People v. Fazio, which held that SORA assessment points should be scored for the number of victims based on how many images an offender possesses and reiterates that points should be scored where the victims are strangers to the offender, no matter that everyone agrees that such an approach produces an absurd result — or in the words of the majority, “might lead to an excessive level of registration.” The high court reached this conclusion despite the fact that the Board of Examiners of Sex Offenders has indicated that those categories should not be scored. The dissent, arguing that the “vast majority” of child pornography offenders should be classified at low risk, pointed out one of the many, many reasons the majority decision is wrong: “The resources that go into the more intensive monitoring of level two and level three SORA registrants can be more usefully expended in keeping track of so-called ‘contact-offenders’ — for example rapists, and abductors of children.”

There is much more in the Court’s 35-page decision and the ten-page dissent. Stay tuned.

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