Legislative Memo: Civil Commitment of Sex Offenders

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 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. However, our legal system recognizes individual freedom as a foundational principle and places significant and essential constraints upon the government’s power to detain and imprison people.

The principle cannot be compromised, as proposed by this bill, without doing grave harm to the principle of individual liberty. And for this reason legislators should be profoundly troubled by this legislation.

The democratic principle of individual freedom, as recognized in the U.S. and New York constitutions, permits forcible incarceration or detainment under limited circumstances and pursuant to carefully prescribed procedures. The government may incarcerate persons who have been convicted by a jury of their peers for having committed a criminal offense.

The government may also commit to locked mental health facilities persons who are mentally ill and who pose an imminent danger to themselves or others. This bill, however, permits the commitment of those who have already completed their sentence, but who have a “condition” that makes it more likely that they may commit a crime.

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 state that “the treatment modalities for existing involuntary commitments are inadequate to address their risk to reoffend.”

Yet the bill contains no proposals to improve treatment interventions so as to address that inadequacy. Second, the entities charged with initiating the civil proceedings are those agencies that release or discharge persons already confined or subject to observation.

Thus there are no provisions in the bill that provide for or mandate treatment at the time that these individuals enter the system. It is only upon their release that the government becomes concerned with adequate treatment. The provision of treatment is a mere pretext for the indefinite incarceration of those who have served their lawfully prescribed sentences.

Finally, 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, a multidisciplinary panel, a 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 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, the legislatures may 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 offender’s “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 legislative and policy initiatives that resort to overbroad incarceration or other constraints upon basic liberty. This bill responds to a difficult matter of public policy by placing fear and aversion above an important legal principle.

It places a simplistic policing response above a more enlightened and well thought out intervention, which would by necessity require a greater investment in mental health strategies. 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.