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New York’s Sex Offender Civil Commitment Program Proves Expensive, Problematic

by Matt Clarke

At an annual cost of $175,000 per civilly-committed sex offender, New York’s civil commitment program is the second most expensive in the country (Washington state is first at a cost of $177,000 per prisoner). As of December 2010, the more than $40 million-per-year program, which has the ability to confine up to 230 civilly-committed sex offenders (CCSOs) in two facilities, was at maximum capacity. Further, with the addition of around 70 new CCSOs each year, the annual costs are expected to increase by 
$12 million a year – which does not include the cost of opening new facilities or the expense of litigation associated with the state’s civil commitment statute.

The cost of the state’s sex offender civil commitment program might have grown even faster, but a decision by the New York Court of Appeals – the state’s highest court – limited the application of civil commitment to persons incarcerated or on parole for a current sex offense, and required that the petition that starts the commitment process be filed before an offender completes his or her sentence for a sex offense.

Article 10

New York’s Sex Offender Treatment and Management Act, article 10 of the Mental Hygiene Law, was enacted on April 13, 2007. Ironically it passed with the support of then-Governor Eliot Spitzer, who later resigned following a prostitution scandal. The statute requires civil commitment of “detained” sex offenders who suffer from a “mental abnormality” that renders them incapable of controlling their sexual impulses and are thus likely to reoffend. The first civil commitment took place in November 2007. Less than four years later, civil commitments are putting a heavy strain on an already stressed state budget.

CCSOs are held at the Central New York Psychiatric Center in Marcy and the St. Lawrence Psychiatric Center in Ogdensburg. Both are now at capacity. Plans are being made to convert office space in an unused building at Marcy into living quarters for 150 more CCSOs. Even if that takes place, it will only satisfy the need for housing newly-confined CCSOs for the next two years.

According to the state’s Office of Mental Health (OMH), “the population growth [of civilly committed sex offenders] will continue unabated for many years and at costs that may well be unsustainable in an uncertain fiscal climate.”

One might be tempted to blame the legislature for shortsightedness in passing article 10 without providing adequate funding, but that would be premature. Article 10 contains a bifurcated civil commitment process in which a court decides whether to place sex offenders in a secure facility or on Strict and Intensive Supervision and Treatment (SIST), a kind of super-parole that requires the CCSO to be placed on GPS monitoring and submit to periodic polygraph examinations. Activities that are not criminal, such as using alcohol, viewing pornography or calling telephone sex lines, are prohibited for offenders on SIST. Engaging in one of the prohibited activities can result in the CCSO being removed from SIST and confined in a secure facility.

SIST Shortcomings

There are several problems with SIST. First and foremost, it isn’t being used as often as anticipated. The legislature assumed that about two-and-a-half CCSOs would be placed on SIST for every one committed to a secure facility. In reality, the ratio is two-to-one in favor of offenders being sent to a secure facility. As a result the civil commitment program has become five times more expensive than expected.

Why is it less likely for CCSOs to be placed on SIST? In a word, politics. Judges have to face the political and public relations consequences if they make a mistake. As noted by New York Supreme Court Justice Thomas Van Strydonck in a 2008 case over whether a man who had sexually assaulted a 7-year-old girl should be placed on SIST or confined, article 10 required that “the most dangerous are to be confined while offenders who pose a risk of harm, albeit lesser, are to be treated within the community” on SIST. Due to a lack of “clear and convincing” evidence that the defendant could not control his sexual impulses, Van Strydonck placed him on SIST – but not without reservations.

“How can it be said that anyone with this defined ‘mental abnormality’ is not likely to be a danger to others if not confined?” he asked. To be on the safe side, some judges are more likely to order confinement rather than release on SIST.

Among the 93 CCSOs placed on SIST between November 2007 and November 2010, 54 (about 58%) violated the terms of their supervision. A quarter of those committed the violation within the first month they were on community supervision. Eight (8.5%) were charged with new crimes and 21 (22%) were accused of non-criminal sex-related activities. This means that the majority of the infractions (69.5%) were neither criminal nor sex-related, giving rise to questions about the harshness of the SIST rules and their enforcement.

“SIST is all about public safety and treatment, so if the person appears to us to be ratcheting up or not being responsive to the requirements outlined by the court, we will take that person into custody,” said Mary Osborne, assistant deputy director of the Division of Parole’s sex offender management unit. A judge then decides whether to send the CCSO to a secure facility or return them to community supervision.

Another problem is the expense of SIST. At an annual cost of $10,000 to $12,000 per offender, it is around twice the cost of standard parole. Why the extra expense? SIST caseloads are smaller than parole caseloads, allowing for more intensive supervision and cooperation with sex offender treatment agencies to ensure that the CCSO is attending court-mandated appointments.

The alternative of committing a CCSO to a secure facility is even more expensive. The initial annual cost was $225,000 per civilly committed sex offender. Personnel cuts brought the cost down to the current level of approximately $175,000 per CCSO, which is still about four times as expensive as incarcerating an offender in a state prison.

Due Process

Before a detained sex offender can be civilly committed to SIST or confinement, the state must provide due process. The cost of the required investigations and trials are not included in the cost of the civil commitment program but constitute an additional related expense.

Article 10 proceedings begin when the agency having custody of a sex offender notifies the Attorney General (AG) and OMH that the sex offender is nearing release. OMH reviews the offender’s records to see if he or she should be referred to a “case review team” for evaluation.

If the sex offender is referred to a case review team, notice is sent to the offender, who is designated the “respondent.” Should the case review team decide that the respondent’s records indicate a “mental abnormality,” it notifies the respondent and the AG’s office. The AG then reviews the case and decides whether to file a civil management petition.

After a petition is filed, an attorney is appointed for the respondent and a court must find probable cause that the respondent requires civil management. If probable cause is found, a trial is held and a unanimous jury must determine whether the AG has proven by clear and convincing evidence that the respondent is a sex offender with a mental abnormality.
The respondent may waive the jury and have a judge make the decision.

Should the fact-finder conclude that the respondent is a sex offender with a mental abnormality, the judge determines whether to place the respondent on SIST or order confinement in a secure facility. To justify confinement, the judge must find that the state has proven by clear and convincing evidence that the respondent is a detained sex offender who is afflicted with “a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that [he or she] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility for care, treatment, and control until such time as he or she no longer requires confinement.” Otherwise, the respondent is placed on SIST.

Civil Commitment Statistics

Of the 1,686 sex offender cases reviewed by OMH between November 2008 and October 2009, just 194 offenders (11.5%) were referred to the AG for possible civil commitment and only 63 (3.7%) were recommended for civil management. Of the 185 civil management petitions decided between April 13, 2007 and October 31, 2009, 171 sex offenders were found to have a mental abnormality and 99 of those were determined to be a dangerous sex offender requiring confinement. Currently, the civil commitment process results in about 70 new CCSOs per year at an additional annual cost of $12 million.

Other states have been hammered with high costs for civilly committing sex offenders, too. Over the past three years the cost of Minnesota’s civil commitment program has tripled while only one committed sex offender has been released since 1994. Virginia is already nearing the maximum capacity of a new $62 million sex offender civil commitment facility that opened in 2008. Twenty states have civil commitment laws, though some use them more enthusiastically than others.

In these difficult budgetary times one has to wonder about the wisdom of such programs, especially in light of the questionable practice of incarcerating people who have completed their criminal sentences based on the possibility that they might commit future crimes – an argument that presumably could be applied to all convicted criminals, not just sex offenders.

Civil Commitment Litigation

In a November 2010 decision, the highest court in New York held that a sex offender who had been released from parole the day before the AG filed a petition for civil management was not a “detained sex offender” for purposes of article 10 and therefore could not be civilly committed. The court also decided that because the respondent had not been serving time for a sex offense at the time he was released, he was not eligible for commitment.

Mustafa Rashid pleaded guilty to robbery, burglary, rape and sodomy resulting from a home invasion and gas station robbery. He was sentenced to 8 to 16 years. After being released on parole, he was arrested for and pleaded guilty to multiple robbery charges for which he was sentenced to 2 to 4 years, plus a misdemeanor weapons charge that resulted in a one-year sentence. The new sentences were concurrent to each other but consecutive to his previous sentence. The weapons charge was on the same indictment as a sex offense; however, as part of a plea agreement Rashid was not prosecuted for the sex offense.

Rashid was eventually paroled. While on parole he pleaded guilty to misdemeanor petty larceny and received a jail sentence, but his parole was not revoked. Four days after he was released from jail his parole expired. The next day, the AG filed a sex offender civil management petition under article 10 in Supreme Court (a New York trial court).

Rashid was confined while awaiting his civil commitment trial. At his probable cause hearing he pointed out that he had not been incarcerated when the petition was filed and had not been on parole for a sex offense. The AG argued that the proceedings had started when Rashid received notice of the civil commitment investigation, not when the petition was filed. The AG also contended that Rashid’s subsequent sentences acted to extend his earlier sentence for a sex offense so that he was in effect on parole for a sex offense. The trial court held that Rashid was a detained sex offender and probable cause existed under article 10, without addressing the issue of whether he was “detained” at the time the proceedings were initiated.

Rashid filed a motion to dismiss the petition because he was on parole for a weapons charge, a Class A misdemeanor, which was not a “designated felony” that allowed civil commitment under article 10. The trial court dismissed the petition but allowed the state to file a new petition in which it was alleged that his more recent sentences served to extend his original sex offense sentence. The trial court held that Rashid was not a “detained sex offender” because he had not been on parole for a sex offense but rather for his later, non-sex offense crimes. The state appealed and the Appellate Division affirmed. The state then appealed to the Court of Appeals.

The Court of Appeals held that a civil commitment proceeding begins at the time a petition is filed, not upon notice of a commitment investigation. Since the AG’s petition was filed a day after Rashid’s parole ended, he was not detained at the time of the petition and therefore was not a “detained sex offender” within the meaning of article 10.

Further, the Court of Appeals held that Rashid’s later convictions and sentences following his sex offenses did not serve to extend his sentence for the sex offenses. Therefore, he was not on parole for a sex offense even at the earlier time when the state gave him notice of the civil commitment investigation. The decision of the Appellate Division was affirmed and the petition dismissed. Rashid was represented by attorney Sadie E. Ishee. See: Matter of State of New York v. Rashid, 16 N.Y.3d 1, 942 N.E.2d 225 (N.Y. 2010).

An important implication of the Rashid decision is that New York cannot attempt to civilly commit sex offenders who have discharged their sentences and are no longer incarcerated or on parole. The dissent in the Court of Appeals’ ruling pointed out that if Rashid is as “impaired and dangerous” as alleged by the AG, “nothing prevents the State from seeking to have him involuntarily hospitalized under the Mental Hygiene Law article 9 as a mentally ill person who is in need of treatment and is a danger to society.” Article 9 provides fewer procedural and substantive protections than article 10.

Using the non-sex offender mental health civil commitment law might have a downside, though, since many psychiatrists have balked at approving a clinical finding of “mental abnormality,” which is not defined in the DSM-IV (the standard guidebook for mental disorders) and has no clear diagnosis or course of treatment.

In another case involving a respondent referred to only as “Maurice G.,” on May 6, 2011 a Supreme Court in Bronx County, New York dismissed a civil management petition filed by the AG because the respondent had been reincarcerated on a parole violation and thus was not eligible for release. Since civil commitment proceedings can only be initiated when a sex offender is “about to be released into the community,” the court dismissed the petition for lack of subject matter jurisdiction.

“Any such determination today as to Respondent’s mental condition would be not only speculative and/or hypothetical as to what the Respondent’s mental condition will be at the time he could be subject to civil management (when he is about to be released into the community), it also would be inconsistent with the intent and requirements of the statute,” the court wrote. See: State v. Maurice G, 32 Misc.3d 380, 928 N.Y.S.2d 162 (N.Y.Sup. 2011).


As New York officials continue to try to civilly commit sex offenders, even when they are no longer detained as required by statute, are not serving time for a current sex offense or have been reincarcerated and no longer meet the criteria for commitment, the state’s litigation costs will continue to increase – in addition to the high costs of secure confinement and SIST supervision.

At some point, New York lawmakers will have to decide whether this is an effective use of taxpayer dollars. This is particularly true given that very few CCSOs held in secure facilities are released, which results in indefinite detention at a cost of $175,000 per offender annually – more than the four-year tuition at Yale University. Perhaps some of the money budgeted for civil commitment would be better spent on treatment for all sex offenders while they serve their criminal sentences, with the goal of decreasing the likelihood that they will reoffend following their release.


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Related legal cases

State v. Maurice G

Matter of State of New York v. Rashid