Governor Bypasses Legislature, Orders Commitments

New York became the first state to enact civil commitment for sexual offenders administratively—a move that has triggered strong concerns among psychiatrists.

After unsuccessfully pushing the New York state legislature since 1998 to pass legislation to allow the commitment of violent sexual offenders to state mental hospitals at the end of their prison terms, Gov. George Pataki (R) issued an executive order to state correction and mental health officials to begin assessing and detaining some convicted sexual offenders.

The move makes New York the first state to refer such prisoners to mental health facilities without a law that specifically authorizes such detentions, and mental health officials said that raises serious concerns.

“As citizens, most of us would be comfortable seeing people properly incarcerated if these are considered crimes,” said Barry Perlman, M.D., president of the New York State Psychiatric Association (NYSPA). “What we are concerned about is using the mental health system to solve a problem that seems to spill over to it because the criminal justice system cannot adequately handle it.”

Psychiatrists and other mental health advocates said the objections to the governor's initiative include the impact it will have on the already tight budgets of the state's public mental health programs and whether other patients in mental health facilities would be adequately protected from the sexual offenders moved directly from the prison system.

Officials in the governor's office and the Office of Mental Health would not provide details of the program beyond a statement released by the governor's office.

The governor “directed the Office of Mental Health [OMH] and the Department of Correctional Services to push the envelope of the state's existing involuntary commitment law because he couldn't wait any longer for the Assembly leadership to bring his legislation to the floor for a vote,” according to the statement.

The governor's initiative “directed that every sexually violent predator in state custody be evaluated for involuntary civil commitment before being released from prison.”

Diagnostic Specifics Unclear

State officials have not identified either the diagnoses that would trigger detention nor the types of medical or other personnel responsible for determining commitment. Richard Gallo, state government lobbyist for the NYSPA, was told by state health officials that two OMH psychiatrists must agree on committing an inmate before it can happen.

No figures have been released by the governor's office, but Gallo said state mental health officials told him that by late October, 14 inmates out of 70 evaluated were referred to the state mental health system under the initiative.

The state has begun to identify “appropriate models for treatment” and to hire staff to treat these patients, according to Steven Hoge, M.D., director of the division of forensic psychiatry at Bellevue Hospital Center in New York and a member of APA's Council on Psychiatry and Law, who has spoken informally with state mental health officials.

The patients, according to news reports, will be detained at the Manhattan Psychiatric Center until deemed “safe” by a physician or released by a judge. The state prison system houses more than 5,000 violent sex offenders.

Psychiatrists Have Several Concerns

Richard Rosner, M.D., chair of the NYSPA's Committee on Psychiatry and the Law, said much more information is needed before NYSPA can take a formal position on the initiative. He said government officials need to release more details, including which criteria meet the qualifications for commitment and which facilities will be designated to house committed individuals.

A major concern for Rosner is the budgetary impact this decision will have on the already strained state mental health system.

Psychiatrists who have spoken with OMH officials said that state officials estimate commitment costs about $200,000 annually for each patient, which includes facilities and personnel but not potential legal costs from court challenges to the program.

“To the extent that the mental hospital beds are filled by people for whom they were not intended, there are fewer of them available for people for whom they were intended,” Rosner said. “On the surface it would appear that state psychiatric services are being used in the service of preventive detention, and that is something that is inconsistent with the American criminal justice system.”

Another problem the program could create is the further stigmatization of mentally ill individuals, said Jeffery Metzner, M.D., chair of APA's Committee on Judicial Action, which has not taken a position on the initiative. His concern was that any program that mixes psychiatric patients with violent criminals will cause the public to associate mental illness with violent behavior and sexual violence in particular.

Will Treatment Help?

Psychiatrists interviewed for this article repeatedly questioned whether those committed to psychiatric care under the New York program are candidates for treatment.

Research has found widely varying levels of recidivism among sexual offenders, depending on the type of patient. However, no compelling research exists on whether involuntary treatment is effective for sexual predators, according to Gallo and Hoge.

“There are questions about whether people with paraphilia are treatable, but the question of whether they are involuntarily treatable has never been answered,” Hoge said.

In 1999 APA's Task Force on Sexually Dangerous Offenders reported that the treatment approach most likely to have an effect on recidivism is multimodal and combines pharmacological, cognitive, and behavioral treatments along with relapse prevention.

To date, 16 states and the District of Columbia have enacted laws to allow authorities to confine violent sexual offenders in psychiatric hospitals after their prison terms. Those laws were upheld by the U.S. Supreme Court in 1997 in Kansas v. Hendricks.

The APA task force issued a report that opposed these laws to“ preserve the moral authority of the profession and ensure continuing societal confidence in the medical model of civil commitment.” Such laws misuse psychiatry to detain a class of people preventively for whom confinement rather than treatment was the real goal, the task force stated.

John LaFond, an attorney and author of Preventing Sexual Violence: How Society Should Cope With Sex Offenders, told Psychiatric News that New York's use of the generic civil commitment statute for this purpose could open it to an “inexorable broadening” of the people to whom it is applied. “A crime becomes the reason to commit, and a past event speaks forever to the present and the future, which is really scary,” LaFond said.

Mental health advocates expect a legal challenge eventually from one of the committed inmates affected by the New York program. The NYSPA would consider filing an amicus brief on their behalf, Perlman said.

Pataki's statement on the New York program is posted at<www.ny.gov/governor/press/05/oct24_05.htm>.▪