Pretrial civil detention of sex offenders unlawful, judge rules

A New York law mandating that sex offenders be confined while awaiting civil commitment trials is unconstitutional, a judge has ruled. But the ruling may not make much difference to most sex offenders whom the state wants to civilly detain, because they are waiving away their rights to a trial.

Supreme Court Justice Colleen Duffy ruled that New York's 2007 Sex Offender Management and Treatment Act is unconstitutional because it does not allow for any less restrictive remedy such as supervised release. Under the law, if a court finds probable cause that a convicted sex offender remains a danger, the individual must be confined until a civil trial, which can take a year or more.

Ironically, if the sex offender is ultimately found to suffer from a "mental abnormality" that renders him potentially dangerous to the public, the court then has the option of ordering intensive community supervision rather than involuntarily confinement in a mental institution.

In the case at hand, the judge noted that the state's Office of Mental Health had already determined that "Enrique T." would be a good candidate for strict, outpatient supervision rather than confinement. She ordered the immediate release of the detainee:

"Respondent is faced with a Morton's Fork -- he must either choose to enforce his right to a jury trial and continue to be detained for an unknown period of time in a psychiatric facility awaiting trial on this matter or surrender his right to trial and consent to a finding of mental abnormality so that he may be immediately released back to the community under [strict and intensive supervision and treatment]. Due process cannot countenance a statute that mandates such a choice."

Her decision follows a federal court decision earlier this year that came to the same conclusion, according to a report by John Caher in the New York Law Journal.

Sex offenders choosing not to fight commitment 

Unless these rulings result in complete scrapping of the state's civil commitment scheme, which is unlikely, it is unclear how many sex offenders whom the state seeks to detain will end up benefiting. For reasons that experts call "inexplicable," the majority of offenders are waiving their right to a jury trial, according to a separate report in the New York Law Journal. Reports John Caher:

Shortly after the Sex Offender Management and Treatment Act took effect in April 2007, authorities detected an unexpected and inexplicable phenomenon: Sex offenders targeted for civil confinement after serving their prison sentences were overwhelmingly waiving their right to a jury trial and consenting to confinement. Nearly 92 percent, 33 of 36, of the sex offenders civilly confined during the first year of the law's enactment had agreed to placement in a mental institution following release from prison. And while those numbers have tapered off in the last three years, a large portion of the sex offenders targeted for civil management continue to forego their right to a trial and consent to confinement, even though the most serious consequence of going to trial is confinement….

No one is sure why sex offenders are consenting to confinement and giving up their liberty when … they seemingly have nothing to lose. At trial after they have served a criminal sentence, the state has to prove by the high standard of clear and convincing evidence that the respondent suffers from a "mental abnormality" that predisposes him or her to commit sex crimes. A unanimous verdict is required, and if a unanimous verdict is not reached, the offender will likely go free since most have served the maximum sentence and are not on parole.

The success rate when offenders go to trial is fairly high, about 15 percent overall and more than 20 percent when they opt for a jury rather than a bench trial.

Theories offered by an assortment of experts and state officials to explain this unexpected trend include:

• Sex offenders believe that confinement is inevitable so choose to avoid the added humiliation and angst of trial.

• Sex offenders know they are dangerous and need help in order to not reoffend.

• Some offenders cannot find any doctor willing to testify on their behalf. 

• Some offenders are so marginalized and despised that they have no options for employment or housing in the community.

"A great deal of these folks have no social safety net," said defense attorney Thomas Callaghan. "Many of them are estranged from their families. Very few are married. They realize they can fight, but they really have no place to go."

Lesley M. DeLia, another legal services attorney, echoed this observation. She said some clients were initially eager to go to court, but balked as their trial date loomed closer:

"They know it is not a friendly world out there if they get out. They are scared about what life will be like ... and some of them just don't want to deal with it. There is no housing for them. They can't get jobs. Others are just so institutionalized they are afraid to go. We did have one fellow who said he knows he is not ready and does not want to get out and do it again."