Civil Commitment of Sex Offenders

April 3, 2019

In New York, some persons who have committed sex offenses are considered too dangerous to live the community. This is even after they’ve served the prison sentence for their offense. These individuals may be held indefinitely in secure institutions under laws allowing for civil commitment.

 

What is Civil Commitment?

Civil management is a legal process through which an individual is ordered by a court into treatment. In New York, civil management of sex offenders is codified in Article 10 of the Mental Hygiene Law. It took effect in 2007 as part of the Sex Offender Management and Treatment Act (“SOMTA”).

A “dangerous sex offender requiring confinement” is a person who committed one or more sex offenses, who is suffering from a mental abnormality that pre-disposes him/her to commit sex offenses, and is unable to control his/her sexual offending behavior. As such, he/she is a danger to others if not confined. Therefore, these persons will be subject to civil commitment in a secure psychiatric facility operated by the NYS Office of Mental Health (“OMH”).

For other individuals, the law authorizes their placement in the community under strict and intensive supervision and treatment (“SIST”). An individual requiring SIST is a person who committed one or more sex offenses and is suffering from a mental abnormality that pre-disposes him/her to commit sex offenses. However, this person does not require confinement. Instead, he/she will have an intensive outpatient treatment plan and will also report to a parole officer.

Anyone who has been convicted of a qualifying offense and who is being supervised by the Department of Corrections and Community Supervision (“DOCCS”), OMH, or the Office for People with Developmental Disabilities (“OPWDD”) can be referred for civil commitment or management. For example, qualifying offenses include rape, incest, and predatory sexual assault, among others.

 

How Does the Evaluation Process Work?

Cases are referred to OMH’s Risk Assessment and Record Review (RARR) unit. This unit looks at all the records in an individuals case, including mental health records, court records, and more. The RARR unit will identify those who may be in need of civil commitment or management because they suffer from a mental abnormality and pose a high risk for sexual recidivism.

The Multidisciplinary Review (MDR) team completes an initial reviews of these cases. The MDR team determines whether the case should be referred to the Case Review Team (CRT) for a more comprehensive and in-depth evaluation. The CRT do an in-depth review of the causes and patterns of the individual’s behaviors. If the review indicates that civil management may be warranted, the CRT requests that a psychiatric examination.

Based upon the psychiatric examination and a review of all the records, the CRT will determine if the case should be referred to the NYS Office of the Attorney General (“OAG”) for civil commitment or management. Subsequently, the OAG will petition for civil management. At a court proceeding, a judge will make a finding on the individual’s mental abnormality and his/her dangerousness. Thereafter, the determination to either confine the individual or place him/her on SIST is made based upon a court-ordered SIST investigation and/or by testimony a psychiatric examiner at a dispositional hearing.

If a person on SIST seriously or repeatedly violates the conditions of the SIST order, that person is taken into custody and a new psychiatric evaluation is ordered. The exam will determine whether modifications are needed to the treatment plan, or whether the individual is in need of confinement. Additionally, a person in secure treatment or on SIST may petition every two years for modifications or termination of civil management.

 

How Many Individuals Are Subject to Civil Management?

In the most recent year reported (November 1, 2016, to October 31, 2017), 1,672 individuals were reviewed for possible civil management. After an initial review of each individual’s case, 91 (5.6%) progressed to CRT’s review. Of those individuals, 44 (2.7%) were recommended for civil management.

As of October 31, 2017, 320 individuals were confined in secure psychiatric facilities pursuant to Article 10, with an additional 49 persons held awaiting adjudication. Courts have released 119 residents from civil commitment to SIST since April 2007. An additional 24 were released from confinement to their communities without SIST. The average length of stay for those who were released from confinement to SIST was nearly four years.

From April 2007 through October 31, 2017, 364 individuals have been placed on SIST (50 were placed on SIST in the most recent reporting period). On average, an individual spent approximately four years on SIST prior to discharge.

 

Issues With Civil Commitment Laws

The US Supreme Court addressed civil commitment and management laws in Kansas v. Hendricks. It ruled that statutes such as SOMTA don’t violate the Constitution’s prohibition against double jeopardy. Nor do they violate the ban on ex post-facto punishment. SOMTA and other similar laws are considered civil rather than criminal proceedings, and such constitutional protections do not apply.

Additionally, one state’s civil management program has come under scrutiny in recent years. Michigan’s Sex Offender Program (“MSOP”) confines more than 720 offenders in secure treatment facilities. A class action lawsuit by the ACLU argued the program was essentially a life sentence because almost no one gets released from the facility. While the constitutionality of the state’s program was upheld, it continues to call into question the legitimacy of these programs. Only a few dozen of the individuals have been released from the program in the 20+ years it has existed.

 

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