Define That Term #193
Wednesday's New York Legal News Round Up

NYS Senate Passes Bill Allowing For Civil Confinement of Sex Offenders

As reported in this Journal News article, by an overwhelming majority the New York State Senate passed a bill yesterday allowing for the civil commitment of violent sexual offenders upon the expiration of their prison sentences.  The Assembly is expected to approve the bill tomorrow.  The bill was the result of lengthy closed door meetings between newly elected Governor Spitzer and legislative leaders. 

The article summarizes the important elements of the proposed bill:

The bill passed by the Senate yesterday would require that mental-health professionals evaluate sex offenders before they leave prison to determine if the convicts are likely to commit similar crimes. Then Attorney General Andrew Cuomo would decide whether to go to court to seek confinement.

A jury would determine if the convict can go free. Then it would be up to a judge to decide whether to confine the offender or impose strict supervision.

The bill, which lawmakers expect to pass next week, would also require:
- Mandatory treatment for all sex offenders, both while they are in prison and after they are released.
- Longer periods of parole supervision for sex offenders.
- Longer prison terms for sex crimes.
- A new state office to mandate the treatment and evaluation of sex offenders.

The bill's supporters estimate that about 100 people will be confined and another 250 will be put under intensive supervision.

Spitzer has put the cost at about $80 million a year.

I've posted numerous times in the past about the difficult and perplexing issue of what to do with sex offenders upon the expiration of their prison sentences.  I find myself pulled in two directions on this one. 

As an attorney with a criminal defense background I'm offended by the notion that people can be civilly committed indefinitely upon the expiration of their duly served prison sentence simply because they might commit an admittedly horrific crime in the future.  And, in my opinion, far too many offenses include the  requirement that one convicted be registered on the sexual offender registry. 

But, as a mother and a woman, I wonder if this particular type of offender might merit special treatment given the high rates of recidivism for sex offenders.   Rather than reinvent the wheel, let me reiterate what I stated in this prior post:

In my opinion, as it stands right now, the list of offenses that are included on the sexual offender registry is too broad and includes too many offenses.  However, certain types of sexual offenders, such as child molesters, are extremely predatory and have little chance of being "cured."  If released from prison upon serving their sentence, they'll continue to prey on children while creating future offenders in the process.

For certain classes of sexual predators, something needs to be done to prevent them from committing additional crimes.  Whether civil commitment is the answer remains to be seen.  Any program that is enacted, however, should be narrowly tailored to prevent future crimes and should include only those convicted of a very limited class of offenses.

From what I've read thus far regarding the proposed legislation, I'm not convinced that the proposed law sufficiently limits the offenses that would fall under the new requirements for post-release supervision or confinement.  As for whether it meets my requirement of being narrowly tailored to prevent future crimes-- I'm still undecided on that issue.  But, my gut reaction is that it's too broad in that respect as well.   

But, despite my reservations regarding this bill, it looks like it's a go.  It remains to be seen how it will operate in practice.

For more insightful commentary on this issue, see Scott Greenfield's recent post at Simple Justice.

Comments

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Carlos

This raises my eyebrows. Funny enough, I started criminal law yesterday (we're on a quarter system). The reading for tomorrow discusses the particular requirements of a crime, namely the existance of an act.

This most basic principle (which I was bombarded with in my intro to criminal justice classes in college) states that a bad act must occur for a criminal claim to be present. Basically, thinking about doing something illegal isn't illegal in itself.

The same applies to civil cases. A tort or contract action cannot be brought unless an act has occured that gives rise to a claim. Public policy and fair play dictate that claims cannot be pre-emptively brought in the event they become necessary.

I agree with you on this. As conservative and anti-crime (which is a stupid label, kind of like pro-clean energy or pro-animals, not something people like to identify themselves with the other side on) as I am, particularly against sex crimes (I would prefer some more extreme penalties for rapists), I don't think that civil confinement should be the answer.

We can't punish thought, only conduct.

Scott Greenfield

I don't think anyone can avoid the misgivings one feels when discussing sex offenders, and particularly child molesters. This is not, and cannot be, supportive of these vermin. I have absolutely neither sympathy nor concern for these people. But, as Nicole rightly points out, civil committment breaks into a new realm of dealing with post-sentence criminals.

We most assuredly need a way to protect our children from these animals, but this rush to pass a civil committment law appears to divert the attention of lawmakers from seeking a better choice. Further discussion, thought, and appreciation of the law of unintended consequences, needs to happen. Instead, we have another hastily crafted law with a simple solution to a complex problem.

Nicole raised another excellent point about the overbreadth of SORA. Sex offenses are the biggest "growth" area in crime, and we are creating a underclass of sex offenders (some of whom are guilty of what are better described as "thought" crimes and did not, and would never, commit what we perceive as "hard" sex offenses).

What do we do with the people on the registry? We now have a growing group of people who can neither live nor work in our society because they have been "branded". The scarlet letter is alive and well. Do we let them wander among us? Do we establish another Devil's Island. Government has decided that we must mark them to protect ourselves from them, but it has yet to figure out what we do with them as the years go by.

This used to be a very slippery slope. It is now a big muck hole about to suck us down. We need an answer to a very real problem, but it appears that we will not be capable of an intelligent discussion.

The statute itself has some interesting aspects.

First, it covers both sex offenses and crimes which were committed with "sexual intent."

Second, it allows psychologists, rather than psychiatrists, to adduce the evidence which will lead to civil commitment.

Third, it allows for civil commitment for a sex offender who suffers from a "mental abnormality."

Fourth, it provides for an inmate to be held past the expiration of his or her sentence while the proceedings are pending.

Fascinating, from a civil rights point of view.

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