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
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
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>.▪