Sex-Offender Commitments Hit Legal Roadblock in N.Y.

In a unanimous decision issued last November, the New York State Court of Appeals ruled that the state cannot invoke mental hygiene laws to involuntarily commit to a psychiatric hospital a sexual offender who is about to be released from prison.

The court ruled that a hearing must be held to determine whether the inmate should remain in custody.

The decision reversed a lower appellate court's ruling, which had overturned a 2005 New York State Supreme Court decision in favor of 12 men who were nearing the end of their sentences for sexual offenses. (In New York, the state supreme court is not the highest level of appeal.)

Judge Carmen Beauchamp Ciparick, writing for the court, agreed with the state supreme court's finding that the state's corrections law, rather than its mental hygiene law, pertains in this case because “the petitioners were, in fact, imprisoned at the time of their civil commitment.”

State corrections officials were following orders issued from then-Gov. George Pataki (R), who instructed them to find a way to have the men confined shortly before or upon their release from prison after the Democratic-controlled State Assembly repeatedly refused to pass laws that would have allowed convicted sexual offenders to be confined involuntarily, a November 21, 2006, New York Times article said. The article also pointed out that the state's mental hygiene Laws have not typically been applied to people who have been convicted of crimes.

The state appeals court explained in its decision that corrections law imposes more restrictions than the mental hygiene law on involuntary confinements. Correction law § 402 requires an evaluation by two court-appointed physicians to determine whether the inmate has a mental illness and, if so, the prison superintendent must file a court order to have the person committed involuntarily. Then, Judge Ciparick explained,“ Notice of the petition must be served upon the inmate, his or her closest friend or relative, and the Mental Hygiene Legal Service. The inmate is then entitled to request a hearing before a judge before the transfer to a psychiatric hospital is undertaken.”

Unlike the correction law, Mental Hygiene Law § 9.27 does not require that the two physicians who conduct the precommitment examinations be court appointed. The law also does not require that the person the state seeks to have commited be notified before transfer to the psychiatric facility or to have the opportunity for a pretransfer hearing before a judge. The state should have followed these steps, as stipulated in the correction law, Ciparick ruled but added, “These procedural safeguards may be bypassed if the psychiatric admission sought is on an emergency basis.”

In an opinion concurring with that of Ciparick, Judge Robert Smith noted,“ Petitioners had all been in prison for years before the state sought to commit them civilly. No sudden, unforeseen emergency required their confinement in a mental hospital. Since it cannot be said in this case that 'immediate action [was] necessary for the protection of society,' a strong argument can be made that petitioners were constitutionally entitled to a hearing before being deprived of the liberty that they would otherwise have obtained upon completion of their prison terms.”

The New York State Court of Appeals also rejected a lower appellate court's earlier ruling—which overturned the supreme court's verdict—that the inmates the state sought to have committed were no longer covered by the corrections law because they were within days or even hours of release when the state acted and were, therefore, no longer serving prison sentences.

“Because inmates who are incarcerated do not pose an immediate threat to the community, there should be ample time to proceed under the Correction Law,” Ciparick wrote. “Therefore, in the absence of a clear legislative directive in regard to inmates nearing their release from incarceration, we believe that Correction Law § 402 is the appropriate method for evaluating an inmate for post-release involuntary commitment to a mental facility. Once the sentence expires, however, any further proceedings concerning the continued need for hospitalization are governed by the Mental Hygiene Law.”

Ciparick concluded by pointing out, “We do not propose that these petitioners be released, nor do we propose to trump the interests of public safety. Rather, we recognize that a need for continued hospitalization may well exist. We, therefore, order that those petitioners remaining in OMH [Office of Mental Health] custody be afforded an immediate retention hearing pursuant to.. .the Mental Hygiene Law—now controlling—since they are no longer serving a prison sentence.”

Jeffrey Metzner, M.D., chair of APA's Committee on Judicial action and a clinical professor of psychiatry at the University of Colorado School of Medicine, called the decision a “well-reasoned one,” which he believes is “welcomed by the psychiatric community.”

“APA has opposed civil commitment to psychiatric hospitals for sexual offenders [being released from prison] because forced confinement to a hospital should be for the purpose of treatment, not merely containment or punishment,” he said. Metzner also pointed out, “The 1999 APA Task Force on Sexually Dangerous Offenders opposed state laws allowing commitment of sexual offenders in its report because the definition of 'sexual predator' in such laws is based on 'a vague and circular determination that an offender has a “mental abnormality” that has led to repeat criminal behavior. Thus, these statutes have the effect of defining mental illness in terms of criminal behavior.... [This is] a misuse of psychiatry because legislators have used psychiatric commitment to effect nonmedical societal ends.' ”

Metzner added that resources for treating mental illness are already inadequate, and diverting them from the mental health system to pay for confinement of sexual offenders “could reduce the amount of funding available for treatment of people who have serious mental illnesses. In addition, any program that mixes psychiatric patients with violent criminals may cause the public to associate mental illness with violent behavior and, in particular, sexual violence.”

Finally, he pointed out, “Treating sex offenders in a hospital setting (compared with other types of structured settings) is neither cost-effective nor often clinically indicated.”

The State of New York, et. al. V. Eileen Consilvio, et al., No. 140is posted at<www.courts.state.ny.us/ctapps/decisions/nov06/140opn06.pdf>.▪