NYS Confinement Law Stalls

August 19, 2011

New York State's Confinement Law Stalls

Thanks to NYAPRS for this update.

NYAPRS Note: A judge finds New York’s policy to house sex offenders awaiting civil commitment trial in state psychiatric centers unconstitutional and recommends that the state make greater use of far less costly community supervision. Texas’ program, even for those who are civilly committed relies entirely on that same community supervision approach. New York could move to a similar approach and avoid a trend that might otherwise reverse appropriate state hospital downsizing and force us to build/adapt a new 200-bed facility every two years (based on current patterns) at $175,000 per day.

New York State's Confinement Law Stalls
By Gary Craig Gannett News Service August 9, 2011

A Bronx judge's ruling in a case involving a civilly committed sex offender has brought into challenge whether the state can confine the criminals in psychiatric facilities before their civil trials.
For state officials the ruling could be a significant blow to the four-year-old civil commitment laws, which allow dangerous sex offenders to be locked away for years — if not life — as they are treated for psychiatric abnormalities.
About 40 percent of 237 civilly confined sex offenders were awaiting trial last year, according to the annual state Office of Mental Health report for 2010.
More recent numbers were not immediately available Tuesday.
Under the law, those awaiting trial are confined in state psychiatric facilities. However, state Supreme Court Justice Colleen Duffy ruled in a case this week that the state must provide another pre-trial alternative. The civil confinement law is unconstitutional because it provides no other pre-trial option but confinement, she wrote.
"We're reviewing the decision and considering the next step," said Jennifer Givner, a spokeswoman for the state Attorney General's Office.
The ruling only applies to a sex offender identified in court papers as Enrique T. But an attorney for the state Mental Hygiene Legal Service office, which represents many offenders facing civil confinement, told the New York Law Journal this week that the decision is "very significant" and is apparently the first ruling to find constitutional fault with the state statutes.
Under the law, inmates imprisoned for certain crimes — most of them sex offenses — are evaluated by mental health experts to determine whether they have a "mental abnormality" making them likely to commit sex offenses after release from prison or parole. Those deemed likely to be dangerous predators — determinations that must also be affirmed by a judge — then face civil trials to determine their fate.
If they are judged to be a recidivist predator at trial, a judge can either confine them to a state psychiatric facility or release them into a strict community program overseen by parole officials.
However, at the pre-trial phase, judges have no choice but confinement under the law. And that has posed other problems for state mental health officials, who say the offenders often don't agree to treatment as they await trial.
"This population is largely unwilling to actively participate in treatment and is often advised by counsel to minimize participation and avoid disclosure of their sex offending histories," OMH officials wrote in the 2010 annual report on civil commitment, which was released last month.
Lawyers for the offenders contend that the treatment at the state psychiatric facilities is not confidential, and information provided during the pretrial confinement can then be used as evidence at trial. In turn, some lawyers advise their clients not to participate in pretrial treatment.
New York's civil confinement costs have been among the costliest per offender in the country, costing upward of $175,000 annually for each offender. Meanwhile, the average cost for offenders released to community supervision is about $12,000 annually, according to parole officials.
OMH officials have warned that the state is facing overcrowding issues at psychiatric institutions. In her ruling, Duffy noted that the state could ease program costs by using pre-trial supervision for some of the offenders.
http://www.democratandchronicle.com/article/20110810/NEWS01/108100323/New-York-state-s-confinement-law-stalls

Bronx Supreme Court Highlights Sex Offender Confinement Controversy
By: Courtney Gross New York 1 August 10, 2011
Some officials are pushing to reverse aspects of the state’s confinement law, calling one policy regarding sex offenders unconstitutional. NY1’s Courtney Gross filed the following report.
A Bronx Supreme Court called part of the state's civil confinement law unconstitutional, calling into question a policy that keeps sex offenders either in prison or in psychiatric institutions after they've served time.
It's a policy that was first pushed by Governor George Pataki, but later steamrolled through by Eliot Spitzer.
It sets off a civil trial for certain sex offenders at the end of their criminal sentence, and it can lead to prisoners being confined indefinitely according to critics.
"We are saving society by placing them in a hospital, a psychiatric facility indefinitely — it really is crooked. It seems slanted,” said Dr. N.G. Berrill, a forensic psychologist.
In the Bronx case, the court said last week that the state would have to prove the offender was actually dangerous to keep him locked up during his civil trial, which on average takes a year to reach a jury.
As of October 2010, 93 offenders were confined while awaiting trial. An additional 144 had been institutionalized as dangerous sex offenders.
Both facilities are upstate.
In a statement, representatives from attorney general's office said they are reviewing the decision.
Opponents of the policy say that confining sex offenders beyond their criminal sentences clogs up state institutions and puts an undue burden on an already cash-strapped budget.
"Our state mental health dollars are increasingly being eaten up. It costs about $175,000 per person per year for a sex offender to be hospitalized in a state hospital," said Harvey Rosenthal, a mental services expert.
Supporters of the measure say it keeps the streets safe.
"Sexual predators are the least likely people to probably let out of jail," said Brooklyn Assemblyman Joseph Lentol.
For now, officials are declining to say whether the decision will have wider implications for those sex offenders still behind bars.

http://bronx.ny1.com/content/top_stories/144794/bronx-supreme-court-highlights-sex-offender-confinement-controversey    

Category: ACL Updates