Legislative Memo: Civil Commitment of “Sexually Violent Predators”

This bill provides for the indefinite civil commitment of persons deemed to be “sexually violent predators” even after the completion of their confinement for any past acts they have committed.

By providing for the forcible detention of individuals who may neither meet the definition of “mentally ill” nor pose an immediate threat to themselves or others, this bill permits the government to exercise one of the most serious intrusions on individual rights, forcible deprivation of liberty, based on the conclusion that an individual has a “condition” that “predisposes” that person to the commission of certain acts. No one questions the state’s interest in protecting New Yorkers from criminal activity.

At the same time, one of our most cherished principles is that of individual freedom and the concomitant restraint we have imposed on the government’s power to detain and imprison people. It is crucial that we not imperil these freedoms, even when attempting to protect children.

We all should be profoundly troubled by the bill’s implications for individual liberty. Perhaps the most significant feature that distinguishes American society from totalitarian regimes is that in our society the government can forcibly detain persons for extended periods of time in only the most limited of circumstances.

First, the government can incarcerate persons who have been convicted by a jury of their peers of having committed a criminal offense. Second, the government can commit to locked mental-health facilities persons who are mentally ill and who present an imminent danger to themselves or to others. This bill, however, permits the commitment of those who have already completed any sentence but who have a “condition” that makes it more likely that they will commit a crime.

Who is next? People with a family history of alcoholism and a driver’s license? Although the bill purports to provide for the “treatment” of the individuals that it detains, the bill is clearly structured to commit them indefinitely rather than to supply meaningful treatment.

First, the legislative findings themselves state that “the treatment modalities for existing involuntary commitments are inadequate to address their risk to reoffend.” Yet the bill contains no provision for addressing that inadequacy. Second, the entities charged with initiating the civil commitment proceedings are those agencies that release or discharge persons already confined or subject to observation. Thus no effort is made under this bill to provide treatment at the time that these individuals enter the system.

It is only when they are to be released that the government suddenly becomes concerned with adequate treatment. The provision of treatment is a mere pretext for the indefinite incarceration of those who have already served their sentences prescribed by law. Finally, and alarmingly, the bill amends existing provisions of the mental hygiene law that provide for the confidentiality of a patient’s clinical records.

The proposed amendment permits the release of such records to the attorney general, multidisciplinary panel, prosecutors review committee and psychiatric examiners, all of whom have the power to recommend the patient for indefinite involuntary commitment. Such a breach of patient confidentiality could well interfere with the patient’s willingness to cooperate fully in his or her treatment program.

With such a provision, this bill could have the dangerous, and terribly sad, result of providing less, not more, effective treatment to these patients. It would be a grave mistake to allow revulsion at sex offenders to be used as a justification for expanding the government’s power to detain persons indefinitely. If states want to increase sentences for those convicted of sex offenses they are free to do so.

If there is a continuing concern that certain sex offenders suffer from a “condition” that is treatable, then treatment should begin as soon after confinement as possible with qualified professionals experienced in the treatment of the offenders’ “condition”.

It is important to note however, that some criminologists have questioned the widespread notion that sex offenders are dangerously incurable and destined to repeat their crimes. It may be more appropriate to consider tightening the conditions of parole and probation imposed upon certain classes of felons. History has judged harshly those who have allowed fear to propel them to abandon the principles on which this country was founded.

The Japanese-American internment camps and McCarthyism are two examples of what can happen when we let fear guide our actions. Although the Supreme Court has upheld a Kansas law similar to the one proposed here, it is to be hoped that both the lawmakers and the judges of this state will recognize and protect the individual liberties that are at the heart of our state constitution and the principles of a free society. 

The NYCLU strongly opposes passage of this bill.