New York became the first state to enact civil commitment for sexual
offenders administratively—a move that has triggered strong concerns
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
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."
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
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
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.
Psychiatrists interviewed for this article repeatedly questioned whether
those committed to psychiatric care under the New York program are candidates
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
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
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,"
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>.▪