Allows the detention of a respondent of a "sex offender requiring civil management petition" pending trial and relates to standard of proof at trial

Summary of specific provisions

Section 1 requires that if a court finds probable cause that a respondent to a sex offender civil management petition is a sex offender requiring civil management, and the respondent is either at liberty at the time of the hearing or eligible for release from imprisonment before the trial date, the court must then determine whether or not there is probable cause to believe that the respondent is a dangerous sex offender requiring confinement.

Section 2 establishes that the standard of proof at a sex offender civil management trial is beyond a reasonable doubt whether the respondent is a detained sex offender who suffers from a mental abnormality. In addition, in the case of a respondent who was found incompetent to stand trial, it establishes that the standard of proof is beyond a reasonable doubt that the respondent did engage in the conduct constituting the offense.

Section 3 provides that this act to take effect immediately.

Justification

On April 12, 2006, the Mental Hygiene Legal Service filed a declaratory judgment action in Federal District Court (Southern District of New York) attacking the constitutionality of some provisions of the Sex Offender Management and Treatment Act ("Act"), and moved for preliminary injunctive relief and a temporary restraining order to halt enforcement of these challenged provisions pending the outcome of the case. Shawn Short, a sex offender subject to the Act, joined the action. The defendants moved to dismiss plaintiffs' six causes of action. On November 16, 2007, Judge Gerard Lynch filed a 62 page decision granting plaintiffs' injunctive relief with regard to two of the six causes of action, dismissed one cause of action, and declined

injunctive relief or dismissal with regard to the final three causes of action.

The Court granted a restraining order prohibiting the detention of an individual after a probable cause hearing unless there is also an individualized finding of probable cause to believe that the person is sufficiently dangerous to require confinement and that lesser conditions of supervision will not suffice to protect the community during the pendency of the proceedings. It held that although the proper weight of the issue of dangerousness is mandated by the Act after trial, it is unconstitutional to detain an individual pending such a trial when there has been no probable cause to believe the person may be a danger to himself or others. The Court rejected the State's argument that dangerousness was implicit in the finding that the person is a sex offender requiring civil management, finding that a general degree of potential danger is insufficient - that the finding must be that the person is sufficiently dangerous that less intrusive conditions than detention cannot guarantee the safety of the community pending trial.

The Court also granted a restraining order prohibiting the civil commitment of individuals who have never been found, beyond a reasonable doubt, to have committed a crime. It held that the Act requires three findings with regard to the individual prior to authorizing civil detention - that the respondent is: (i) a sex offender; (ii) mentally ill; and (iii) dangerous. Although the Court agreed with defendants that the standard of proof for civil commitment is generally (under other New York State Mental Hygiene statutes) clear and convincing evidence, he made the distinction that such applies to only the latter two factors _ mental illness and danger. It noted that the Act only applies to individuals who have committed a sexual offense - the conduct that constitutes such an offense - and that whenever a finding will subject an individual to the stigma of a finding that he violated a criminal offense, the proof must be beyond a reasonable doubt. Thus, the Court found that with regard to persons who have never been convicted of the underlying criminal acts, the burden is on the State to prove the factor of sex offender beyond a reasonable doubt. As the statute does not require such a standard, as to such individuals, it violates due process.

Furthermore, the Court allowed litigation to continue on the a claim that the act is unconstitutional in that it allows the fact finder at the commitment trial to make a retroactive determination by clear and convincing evidence that certain non-sex offenses were committed with sexual motivation. The Court found the issue raised in this claim is very similar to that with regard to individuals who have never been found, beyond a reasonable doubt, to have committed a crime, but the Court required a fuller record to make its determination on this issue.

The first amendment proposed in this bill codifies the Court's requirement for a separate finding that a person is sufficiently

dangerous wherein less intrusive conditions than detention cannot guarantee the safety of the community, in order to detain that person pending trial.

The second amendment addresses the Court's concern that the standard of proof of by clear and convincing evidence may not be constitutionally sufficient with regard to certain quasi-criminal aspects of this civil proceeding. By replacing the standard of proof at trial to beyond a reasonable doubt for all proof required of the Attorney General such constitutional challenges will be avoided without subjecting a jury to varying elements of proof for different required findings.

By the passage of the Sex Offender Management and Treatment Act the legislature acknowledged the need to address the recidivistic sex offenders and the goals of civil commitment - protection of society, supervision of offenders, and management of their behavior. A swift response to remedy potential constitutional weaknesses of the statute is necessary to continue to ensure the goals of civil commitment are met.

Prior legislative history

2008: A.10189; Referred to Mental Health

Fiscal implications

No cost to the state.

Effective date

Immediately.