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Annual Report on the Implementation of Mental Hygiene Law Article 10 - Sex Offender Management and Treatment, New York State, 2009

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Annual Report on the Implementation 

of Mental Hygiene Law Article 10

Sex Offender Management and Treatment Act of 2007

January 2009

New York State
Office of Mental Health
Michael F. Hogan, PhD

2008 Annual Report on the Implementation of MHL Article 10


Annual Report on the Implementation 

of Mental Hygiene Law Article 10

Sex Offender Management and Treatment Act of 2007

January 2009

New York State
Office of Mental Health
Michael F. Hogan, PhD

Table of contents
Executive summary ........................................................................................................................................................III

Introduction ......................................................................................................................................................................1

Part I: Brief History of Civil Management of Sex Offenders in New York State ........................................................3

Part II: Evaluation of Sex Offenders for Civil Management ........................................................................................6

Part III: The Adjudication of Article 10 Referrals ........................................................................................................12

January 2009

Part IV: Sex Offender Treatment ..................................................................................................................................15

Part V: Summary of Challenges and Recommendations............................................................................................20

Appendix ........................................................................................................................................................................25


2008 Annual Report on the Implementation of MHL Article 10

Executive Summary

This is the second annual report to the Gover­
nor and Legislature on the implementation of
Article 10 of the Mental Hygiene Law (MHL).
Specifically, MHL § 10.10(i) requires the Com­
missioner for the NYS Office of Mental Health
(OMH) to submit to the Governor and Legisla­
ture a report on the implementation of this arti­
cle and that:
“Such report shall include, but not be limited to,
the census of each existing treatment facility, the
number of persons reviewed by the case review
teams for proceedings under this article, the
number of persons committed pursuant to this
article, their crimes of conviction, and projected
future capacity needs.”
Part I of this report provides a brief history of
civil management in New York State and the
groundwork that led to the enactment of the Sex
Offender Management and Treatment Act of
2007 (SOMTA). Part II summarizes the assess­
ment process employed by OMH to identify sex
offenders in need of civil management. Part III
reviews the litigation phase of civil management,
while Part IV presents information on treatment
aspects of civil management, both within the
community and in OMH secure treatment facil­
ities. The report concludes with Part V, which of­
fers a summary of the challenges faced since the
enactment of Article 10 and recommendations
for improving the civil management process.
Briefly, OMH operates two secure treatment fa­
cilities, a 150-bed secure treatment facility lo­
cated within the Central New York Psychiatric
Center (CNYPC) and an 80-bed secure treat­
ment facility located on the grounds of St.
Lawrence Psychiatric Center (SLPC). These two
facilities, along with a 20-bed temporary secure
treatment facility within the Manhattan Psychi­

atric Center (MPC)located on Ward’s Island in
New York City, have the capacity to provide se­
cure treatment to 250 sex offenders. As of Octo­
ber 31, 2008, 178 offenders were confined to
these three secure treatment facilities, many of
whom were awaiting final adjudication. Since the
enactment of SOMTA, OMH receives a monthly
average of 11 new sex offenders for civil man­
agement, a rate that is projected to continue into
the foreseeable future. As this report notes, a
number of these individuals are confined to
OMH secure treatment facilities during the pen­
dency of civil management proceedings.
Due to the State’s current fiscal climate, OMH has
recently adjusted its staffing ratios for its secure
treatment facilities to ratios commensurate with
its secure forensic psychiatric centers. Nonethe­
less, the cost of providing care to sex offenders
within OMH secure treatment remains high
($17.5 million per 100 residents) and is currently
projected to rise to over $100 million by 2012.
Since the enactment of Article 10 less than two
years ago, OMH is confronted with the need to
develop additional secure treatment facility ca­
pacity to accommodate the continued growth of
this program. OMH recently completed capital
renovations at the Mid-State Annex Building lo­
cated adjacent to CNYPC, thereby adding an ad­
ditional 150 beds to its secure care treatment
facility stock. It is projected that the Annex Build­
ing will begin receiving sex offenders in the early
part of Fiscal Year 2009-10. Based on current pro­
jections, OMH is faced with adding the equiva­
lent of 250 beds every two to three years.
The projected growth of the civil management
population raises important public and fiscal
policy questions which, given the State’s current
economic prospects, requires public dialogue as
to its sustainability and the most efficient use of

January 2009


2008 Annual Report on the Implementation of MHL Article 10

the State’s resources. It is hoped that this report
will prompt a dialogue among legislators, policy
makers, law enforcement and providers of
human services to address this important issue
and to explore alternatives to the high cost asso­
ciated with civil confinement, without compro­
mising public safety.
Over the past 18 months, OMH has faced many
challenges and has identified critical issues ham­
pering the effective and efficient implementation
of civil management. In the coming year, OMH
will continue to work closely with state and local
agencies and other stakeholders to find creative
and innovative solutions for these issues. We
look forward to the support of the Legislature in
meeting these challenges. Some of the specific
critical issues include the need to:
◆	 Identify alternatives to confinement in ex­
pensive OMH secure treatment facilities for
those offenders whose civil management
proceedings remain pending in the courts;
◆	 Establish intensive and complementary
models of sex offender treatment between
the Department of Correctional Services
(DOCS) and OMH secure treatment facili­
ties for those inmates deemed at high risk
for sexual recidivism;
◆	 Develop alternative forms of community
housing for sex offenders to ensure respon­
dents’ personal accountability and create
more options to serve respondents subject
to Strict and Intensive Supervision and
Treatment (SIST); and
◆	 Assess the impact of residency restriction
statutes and ordinances adopted by many
localities, as these restrictions may well have
deleterious effects on public safety due to
impediments they create to supervision and
successful community reintegration.

January 2009


In addition to these critical issues, it is possible
that certain sentencing reform initiatives may
positively impact the effective and prudent im­

plementation of the civil management process
in New York State. For example, changes to sen­
tencing laws that expand the qualifying felony
offenses that result in maximum/life indetermi­
nate sentences would enable the Parole Board to
make decisions based on meaningful progress in
treatment programs. Lengthier sentences may
also maximize the opportunity sex offenders
have to participate in intensive, long-term sex of­
fender treatment while in DOCS custody which
can be operated (for a variety of reasons) at a
lower cost than inpatient treatment in an OMH
secure treatment facility.
While we recognize the complexities of address­
ing these concerns, we are also mindful of the
enormous economic burden of not doing so.
Now that we have had the opportunity to de­
velop the systems needed to effectively assess and
treat this population, it is time to take the next
step and insure that we are implementing civil
management in a way that increases public safety
while minimizing costs to the taxpayer.
New York is not alone in facing this vexing pub­
lic safety issue as it seeks to develop a compre­
hensive approach to sex offender management.
Many states across the nation have crafted legis­
lation to protect the public from persons predis­
posed to engage in predatory sexual behavior,
adopting sex offender registration laws, placing
restrictions on where sex offenders may live, re­
quiring intensive supervision (e.g., electronic
and GPS monitoring) of sex offenders and pass­
ing civil management statutes, with no clear ev­
idence to support that these strategies are the
most cost effective means of improving public
safety. Review of the multi-state comparative
analyses, such as the recently completed study by
the Vera Institute (
publication pdf/the-pursuit-of safety.pdf) and the
periodic reports that describe the experiences of
other states with civil management statutes com­
pleted by the Washington State Institute for Public
Policy ( are
two resources legislators, policy makers and
providers may find useful.

2008 Annual Report on the Implementation of MHL Article 10

2008 Annual Report
on the Implementation
of MHL Article 10

This report is submitted to Governor Paterson and the Legislature by the Commissioner
of the New York State Office of Mental Health (OMH) pursuant to Article 10 of the
Mental Hygiene Law (MHL). Specifically, MHL §10.10(i) requires the Commissioner to
submit to the Governor and the Legislature a report on the implementation of this ar­
ticle and that,
“Such report shall include, but not be limited to, the census of each existing
treatment facility, the number of persons reviewed by the case review teams
for proceedings under this article, the number of persons committed pur­
suant to this article, their crimes of conviction, and projected future capac­
ity needs.”
The following pages serve to review the history and implementation of MHL Article
10, which was enacted as part of the Sex Offender Management and Treatment Act of
2007 (SOMTA). Part I of this report provides a brief history of civil management in
New York State and the groundwork that led to the enactment of SOMTA. Part II of the
report summarizes the assessment process employed by OMH to identify sex offenders
in need of civil management. Part III reviews the litigation phase of civil management,
while Part IV presents information on the treatment aspects of civil management, both
within the community and in OMH secure treatment facilities. The report concludes
with Part V that summarizes the challenges faced since the enactment of Article 10 and
recommendations for improvements to the civil management process.

January 2009


2008 Annual Report on the Implementation of MHL Article 10

Part I:
Brief History of Civil Management
of Sex Offenders in New York State
SOMTA was enacted subsequent to a series of gu­
bernatorial directives to civilly commit dangerous
sex offenders. The gubernatorial directives, issued
by then Governor Pataki, were prompted by pub­
lic calls for the civil commitment of dangerous sex
offenders following the murder of Concetta Russo
Carriero in 2005. Ms. Carriero was murdered by
Phillip Grant, a level three sex offender who had
been released from prison after serving 23 years
for two rape convictions and an attempted assault
conviction. At the time of the murder, Mr. Grant
resided in a shelter at the Westchester County Air­
port.1 The murder resulted in proposed legisla­
tion known as “Concetta’s Law,” which sought to
civilly commitment dangerous sex offenders
upon completion of their prison terms. The New
York State Assembly and Senate were unable to
reach agreement on civil commitment legislation
and, in response, Governor Pataki directed OMH
and the New York State Department of Correc­
tional Services (DOCS) to utilize MHL §9.27 as a
means to civilly commit dangerous sex offenders
with mental illness. Section 9.27 provides for the
involuntary commitment of people with mental
illness to a psychiatric facility based upon the cer­
tification of two physicians. In addition, New York
State courts have further interpreted the law to re­
quire a showing of dangerousness to oneself or
The Sexually Violent Predator (SVP) initiative in
New York State commenced in September 2005.
Under this initiative, OMH was required to con­
duct a comprehensive record review on all sex of­
fenders who were scheduled for release from
DOCS. OMH employed standardized actuarial
risk screening instruments to assess for risk of sex­
ual recidivism and to identify potential candidates
for civil commitment (as SVPs). These candidates

were then screened by two physicians, and a civil
commitment determination was made. Because
MHL §9.27 permits involuntary hospitalization
without a court hearing, these commitments oc­
curred without judicial oversight.3
While the risk assessment process employed in the
SVP initiative mirrored processes utilized in other
states, New York State was fairly unique in its at­
tempt to do so through pre-existing statute (i.e.,
MHL) rather than enacting separate civil com­
mitment legislation. The use of the MHL invol­
untary comittment statute avoided judicial
involvement in the initial decision to commit sex
offenders to secure treatment and allowed for
consideration of factors not ordinarily at issue in
the civil management of sex offenders (e.g., dan­
gerousness to self).

Challenges to New York’s SVP Initiative
In November 2005, the SVP initiative was chal­
lenged on procedural grounds in the case of State
of New York ex rel. Harkavy v. Consilvio (Harkavy
I).4 Specifically, Mental Hygiene Legal Service
(MHLS) argued that MHL §9.27 was not appli­
cable to individuals held in correctional facilities,
and that the State should be using Correction Law
(CL) §402 to civilly commit sex offenders prior to
their release from DOCS. Unlike MHL §9.27, CL
§402 required judicial oversight of the commit­
ment process, the appointment of two independ­
ent physicians to assess the need for involuntary
commitment, and a hearing in which the court
determined whether or not an inmate was to be
involuntarily committed. While the trial court
concurred with MHLS, the Appellate Division re­
versed the finding, holding that the State properly
committed the petitioners under MHL §9.27.
MHLS appealed and the Court of Appeals re­
versed the Appellate Division in November 2006,
holding that CL §402 was the appropriate method
for evaluating an inmate for involuntary com-

1 	 Liebson, R., & Hughes, B. (2005, June 30). Woman Slain in Garage at Galleria.The Journal News (Westchester County,
NY), p. 1A.
2 	 See In re Scopes v. Shah, 59 AD2d 203 (3d Dep’t 1977).
3 	 MHL Section 9.27(a) prohibits patients from being involuntarily committed for more than 60 days without court approval.
4	 State of New York ex. rel. Harkavy v. Consilvio, 10 Misc3d 851 (Sup Ct, New York County 2005), rev’d 29 AD3d 221 (1st
Dep’t 2006), rev’d 7 NY2d 607 (2006).

January 2009


2008 Annual Report on the Implementation of MHL Article 10

mitment to a psychiatric facility following release
from prison. The Court further ordered that those
petitioners remaining in OMH custody be af­
forded an immediate retention hearing pursuant
to the MHL, and that future candidates be adju­
dicated under CL §402.
In December 2005, MHLS challenged, in State
ex rel. Harkavy v. Consilvio (Harkavy II),5 the
practice of OMH to civilly commit mentally ill
sex offenders directly to a secure hospital.
MHLS argued that individuals had a liberty in­
terest in not being confined in a secure hospi­
tal and that this right was violated by their
commitment to Kirby Forensic Psychiatric
Center (Kirby) absent additional statutory au­
thority. Furthermore, MHLS argued that there
was no exercise of professional medical judg­
ment that determined these individuals re­
quired secure commitment. The State argued
that its practice was legal because the law pro­
vided for commitment to a hospital and the
term “hospital” applies to both secure and
non-secure psychiatric facilities. While
Harkavy II was pending before the Court of
Appeals, SOMTA was enacted which author­
ized confinement in a “secure treatment facil­
ity.” Nonetheless, consistent with its holding in
Harkavy I, the Court ruled that commitment
to Kirby under MHL §9.27 was unlawful.
However, in light of the enactment of SOMTA,
the Court directed that those so committed
needed to be re-evaluated pursuant to the new
MHL Article 10.

During the period subject to the SVP Initiative
(September 12, 2005-April 12, 2007), a total of
1,212 inmates with sexual offenses were referred
to OMH for evaluation for commitment pursuant
to MHL §9.27 or CL §402. Of those referrals, 138
were civilly committed. Between September 12,
2005 and April 12, 2007, 17 individuals originally
referred for commitment pursuant to MHL §9.27
and subsequently re-evaluated, were released to the
community. The remaining 121 individuals (com­
monly known as “Harkavy cases”) were re-evalu­
ated pursuant to the civil management provisions
of Article 10. Of the 121, 60 (49.6%) were referred
for civil management under the provisions of the
new statute. The rest were released to the commu­
nity or held pending parole revocation proceed­
ings. Table 1 summarizes referrals and
commitments for the period of September 12,
2005 to April 12, 2007.
The 19-month period between September 12,
2005 and April 12, 2007 was marked by service ex­
pansion, capital construction, litigation and leg­
islative efforts to craft the new statutory scheme
under MHL Article 10. With the enactment of
SOMTA, a new era of sex offender treatment and
management began. During the 19-month pe­
riod, OMH and DOCS developed the operational
infrastructures (i.e., referral, assessment and treat­
ment protocols and services) that served as the
foundation for implementation of many of the
provisions of the new statute.

Table 1
Individuals Committed under MHL 9.27(a) and CL 402
Commitment Statute
MHL §9.27
CL §402

January 2009


Total Referrals to OMH

Total Commitments












5	 State of New York ex. rel. Harkavy v. Consilvio, 11 Misc2d 1035A (Sup Ct, New York County 2006) rev’d 34 AD3d67
(1st Dep’t 2006), rev’d., 8 N.Y.3d 645 (2007).
6	 This figure includes both commitments under CL §402 (N = 11) and referrals for commitment hearings submitted
under CL §402 as of April 12, 2007.

2008 Annual Report on the Implementation of MHL Article 10

The Sex Offender Management
and Treatment Act
SOMTA was enacted as Chapter 7 of the Laws of
2007, and became effective April 13, 2007.
SOMTA amended sections of New York State’s
Correction, County, Criminal Procedure, Execu­
tive, Judiciary, Penal, and Mental Hygiene Laws,
and Family Court Act, and created an elaborate
process for the civil management of certain sex of­
fenders upon completion of their lawful confine­
ment. SOMTA also required a risk assessment of
sex offenders by qualified OMH staff upon their
admission to prison, as well as prison-based sex
offender treatment, to be provided by DOCS, in­
cluding residential treatment.
The assumptions underlying SOMTA were de­
lineated in a series of legislative findings set forth
in the MHL §10.01. Specifically, the Legislature
◆	 That recidivistic sex offenders who pose a dan­
ger to society should be addressed through
comprehensive and integrated programs of
treatment and management. {§10.01(a)}
◆	 That some offenders with mental abnormali­
ties are predisposed to engage in repeated sex
offenses. These offenders may require longterm specialized treatment modalities to ad­
dress their risk to re-offend. That treatment
should continue following incarceration. In
extreme cases [emphasis added], confine­
ment will need to be extended by civil process
in order to ensure treatment and protect the
public. {§10.01(b)}
◆	 That for other sex offenders, it can be effec­
tive and appropriate to provide treatment in
a regimen of strict and intensive outpatient
supervision. Civil commitment should be
only one [emphasis added] element in a
range of responses. {§10.01(c)}

◆	 That the system for responding to recidivistic
sex offenders with civil measures must be de­
signed for treatment and protection. It
should be based on the most accurate scien­
tific understanding available, including the
use of current, validated risk assessment in­
struments. {§10.01(e)}
◆	 That the system should offer meaningful
forms of treatment to sex offenders in all
phases of criminal and civil supervision.
◆	 That sex offenders in need of civil commit­
ment comprise a different population with
different needs from traditional mental health
patients. The civil commitment of sex offend­
ers should be implemented in ways that do
not endanger, stigmatize, or divert needed
treatment resources away from traditional
mental health patients. {§10.01(g)}
In short, the purpose of civil management of sex
offenders in New York State is to enhance public
safety by continuing to treat and manage mentally
abnormal sex offenders who are being released
from some type of supervision (e.g., prison, pa­
role, hospitalization), but remain predisposed to
recidivate in the absence of such treatment and
SOMTA, through the creation of Article 10, estab­
lished a process to review certain sex offenders in
the custody of “Agencies with Jurisdiction” for pur­
poses of civil management.7 Article 10 requires
OMH to evaluate and recommend individuals for
civil management and provide treatment to those
found by the court to be in need of civil manage­
ment. More specifically, the statute provides for the
Commissioner of OMH to employ multidiscipli­
nary staff, case review teams, and psychiatric ex­
aminers to identify persons suffering from a
mental abnormality that predisposes them to sex­
ual recidivism and may require civil management.8

7	 MHL §10.01(a) defines an Agency with Jurisdiction as “the agency responsible for supervising or releasing such person
(sex offender) and can include the Department of Correctional Services (DOCS), the Office of Mental Health (OMH),
the Office of Mental Retardation and Developmental Disabilities (OMRDD) and the Division of Parole.”

January 2009


2008 Annual Report on the Implementation of MHL Article 10

It also requires OMH to develop treatment plans
for persons released to the community under
“Strict and Intensive Supervision and Treatment”
(SIST) and to establish secure treatment facilities
for persons deemed in need of confinement.

Part II:
Evaluation of Sex Offenders
for Civil Management
OHM has established a Risk Assessment and
Record Review (RARR) unit to evaluate all of­
fenders convicted of qualifying offenses who are
referred to it for assessment under Article 10 (see
Tables 1A and 1B in the Appendix for a list of all
qualifying offenses). Each assessment involves the
review of multiple records including, but not lim­
ited to, police reports, victim statements, court
transcripts, pre-sentence reports, and correc­
tional and mental health records. The goal of the
assessment process is to identify and refer the
highest risk sex offenders who suffer from a men­
tal abnormality.
The first step in the review process is to ensure that
the referred individual has been convicted of a
qualifying offense. Next, decisions regarding fur­
ther review are made based upon the individual’s
score on an actuarial risk assessment instrument
known as the Static-99. This highly researched
and validated actuarial risk assessment tool is de­
signed to assist in the prediction of sexual recidi­
vism among male sex offenders. The instrument
includes measurements of criminal history, age at

the time of scheduled release, prior cohabitation
with intimate partner(s), victim gender, and vic­
tim-offender relationship. OMH staff has been
trained in the use of this actuarial instrument by
its developer to ensure proper implementation.9
Two separate clinical teams are utilized in the
civil management review process. Multidiscipli­
nary Review staff (MDR) – comprised of three
randomly selected clinicians with expertise in the
assessment, diagnosis, treatment, and/or man­
agement of sex offenders – undertakes the first
level of review by examining the results of the ac­
tuarial risk assessment (completed by a team
member) and identifying related risk and pro­
tective factors. Through this initial assessment,
the MDR team determines whether or not the
case should be referred to the Case Review Team
(CRT) for a more comprehensive, in-depth eval­
The Static-99 score is the initial determiner of the
path the case will take through the review process.
Respondents who score a six or higher on the
Static-99 are referred directly to the CRT. Re­
spondents who score less than six on the Static-99
are referred to the MDR team for additional
screening. The MDR team checks for the pres­
ence of additional research-based risk factors
such as sexual preoccupation, general self-regu­
lation problems, prior noncompliance with su­
pervision, deviant sexual interest, and emotional
identification with children. If sufficient researchbased risk factors are present, the MDR team will
refer the case to the CRT for further review.10


January 2009


8	 The definition of mental abnormality under New York’s statute is virtually identical to that of other states with SVP
statutes. MHL Article 10 defines mental abnormality as a “congenital or acquired condition, disease or disorder that af­
fects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the com­
mission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such
conduct.” Persons referred for assessment for civil management include (1) sex offenders with qualifying offenses in the
custody of DOCS who are approaching release, (2) persons under supervision of the NYS Division of Parole who are
approaching the end of their terms of supervision, (3) persons found not responsible for criminal conduct due to men­
tal disease or defect and who are due to be released, (4) persons found incompetent to stand trial and who are about to
be released, and (5) persons convicted of sexual offenses who are in a hospital operated by OMH and were admitted
per the Executive Directive (Harkavy cases).
9	 Prior to June 2008, OMH also completed the MnSOST-R actuarial risk assessment, even though the score was never
critical to the RARR screening process. The decision to discontinue the completion of the MnSOST-R was in part based
on the fact that two of the 16 items in the instrument could not be relied upon as valid for New York State as they were
tied to program models that were specific to Minnesota’s correctional system and the corresponding developmental

2008 Annual Report on the Implementation of MHL Article 10

The CRT completes a second level of review. Like
the MDR team, it is comprised of three randomly
selected professionals (who were not part of the
original MDR team) who have expertise in the as­
sessment, treatment, supervision, and/or man­
agement of sex offenders. It undertakes an
in-depth review of the causes and patterns of the
individual’s sexual offending, his or her criminal,
mental health, and substance abuse history, and
related problem behaviors while incarcerated
and/or during periods of supervision. If the initial
CRT review indicates that civil management may
be warranted, the CRT requests a psychiatric ex­
aminer to evaluate the respondent for the pres­
ence of a mental abnormality, as defined by
statute. If the CRT determines that civil manage­
ment is not warranted, a psychiatric evaluation is
not requested.

Days between release date and NOD

When the CRT requests a psychiatric evaluation, a
psychiatric examiner conducts a detailed psycho­
logical examination to assess for mental abnor­
mality, using methods approved by clinical and
professional practice groups.11 The findings from

this evaluation are written into a report and pre­
sented to the CRT for final determination of
whether or not the individual is in need of civil
management. Based upon information obtained
from the psychiatric evaluation, as well as the com­
prehensive record review, the CRT makes a deter­
mination of whether or not to refer the individual
to the Office of the Attorney General (OAG) to
seek civil management. OMH then issues a Notice
of Determination to the referring agency, OAG,
and referred individual noting its finding on the
issues of mental abnormality, likelihood to re-of­
fend, and the need for civil management.12
OMH strives to issue the Notice of Determina­
tion at least ten business days prior to an of­
fender’s release date. As can be seen in Figure 1,
on average, OMH makes these determinations 11
business days prior to an offender’s release.
An overview of the entire assessment process is
provided in Figure 2.


12 Month Average 11.3 days












Figure 1
Number of Business
Days between
Respondent Release
Date and the 

Notice of 











* August 2008 contained one case that had 101 business days between release date and NOD.
If that case is removed from the analysis, the average number of days in August is 17 days.

10 While actuarial risk assessment tools have demonstrated considerable accuracy in the arena of sex offender risk assess­
ment, no single actuarial instrument currently captures all potentially relevant risk factors. Thus, the RARR unit has
identified other research-based factors that are considered in concert with the Static-99. These research-based risk fac­
tors have been shown to correlate with an offender’s risk for sexual re-offense. In order to stay current with the evergrowing body of research in the field of sex offender management, research staff employed by OMH regularly culls the
literature and informs the RARR staff of issues relevant to sexual recidivism.
11 Clinicians follow protocols and practices recommended by the American Psychological Association and the Association
for the Treatment of Sexual Abusers.
12 Sex offenders requiring civil management include “dangerous sex offenders requiring confinement” and those appro­
priate for “strict and intensive supervision and treatment” (SIST). A “dangerous sex offender requiring confinement”	
means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposi­
tion to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others
and to commit sex offenses if not confined to a secure treatment facility. A sex offender requiring SIST means a de­
tained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement.

January 2009


2008 Annual Report on the Implementation of MHL Article 10

Figure 2
Risk Assessment and
Record Review (RARR)
Civil Management
Review Process

Receive Referral from DOCS, Parole, OMRDD, and OMH
of Individuals Being Released within 180 Days

RARR clinical staff confirm qualifying offense

No further

RARR clinical staff complete the Static-99
unless contraindicated by Static-99 (see 2003 Coding Manual)
Is there evidence of more than one victim in the record?
Does the offense involve Sadism, Murder or Torture?
Are there statements of intent to re-offend?

No further

If Static-99 Score of 3 or less:
Does the offense involve Sadism, Murder or Torture?
Are there statements of intent to re-offend?
Is a combination of psychopathy and sexual deviance present?

Static-99 Score of 5 or lower

Static-99 score of 6 or more

Referral to
Review Team (MDR)

Referral to Case
Review Team (CRT)

Using research-based
factors MDR team determines
whether individual needs
further review by Case Review Team

Referral for a
psychiatric evaluation

No further

Psychiatric evaluation conducted
No further

CRT makes determination
regarding Civil Management

Notice of Determination
issued to OAG and Respondant

Results of Civil Management Screening by OMH

January 2009

During the 12 month period from November 1,
2007 to October 31, 2008, 1,581 offenders were
reviewed by OMH for possible civil manage­
ment.13 Of those, 88 offenders (5.6%) were
deemed to not have committed a SOMTA-qual­
ifying offense. Of the 1,493 offenders qualifying
for review, 1,204 (80.6%) were not referred to

CRT for further review, 150 (10.0%) were re­
ferred for further review by the CRT, but were not
recommended for civil management, and the re­
maining 139 (9.3%) were recommended for civil
management. Characteristics of the offenders’
criminal histories, SOMTA-qualifying offenses,
and sexual recidivism risk scores are displayed in
Tables 2 and 3. As can be seen in the tables, those
offenders referred to the OAG for pursuit of civil



13 The RARR unit completed 1,736 reviews during this same time period, with some individuals being reviewed more than once.

2008 Annual Report on the Implementation of MHL Article 10

Table 2
Criminal History Information of the Offenders Reviewed by OMH
Offenders Reviewed Under SOMTA 11-01-07 to 10-31-08
to CRT
Criminal History of Referrals
(n = 1,204)

Felony Arrests Prior to SOMTA Review
average # (SD)

Referred to CRT,
but Not Referred for
Civil Management
(n = 150)

for Civil
(n = 139)

2.6 (2.2)

3.5 (2.5)

4.0 (2.7)




3.8 (3.7)

5.2 (4.1)

5.9 (4.2)




1.8 (1.2)

2.3 (1.4)

2.6 (1.4)




1.2 (0.5)

1.8 (0.9)

2.6 (1.4)




1.1 (0.5)

1.7 (0.9)

2.3 (1.3)




Probation Sentences Prior to SOMTA Review
average # (SD)
0.5 (0.8)

0.6 (0.8)

0.6 (0.7)




1.2 (0.7)

1.5 (0.8)

1.7 (0.8)




Time Spent in DOCS on SOMTA Offense (excl. jail)
average # of years (SD)
4.8 (4.3)

6.5 (6.2)

6.9 (4.5)



% 2 or more

Convictions Prior to SOMTA Review
average # (SD)
% 2 or more

Felony Convictions Prior to SOMTA Review
average # (SD)
% 2 or more

Sexual Arrests Prior to SOMTA Review
average # (SD)
% 2 or more

Sexual Convictions Prior to SOMTA Review
average # (SD)
% 2 or more

% 1 or more

Prison Sentences Prior to SOMTA Review
average # (SD)
% 2 or more

% 3 years or more


* An additional 88 offenders were referred to OMH for SOMTA review, but were deemed to not
have committed a SOMTA-qualifying offense.

management have more extensive sexual offense
histories, more frequent incarcerations, higher
risk scores, and were less likely to have parole time
remaining on their sentences than those not re­
ferred for civil management.

Post-Release Arrest of Individuals
Not Referred for Civil Management
January 2009
During the 12-month period, 1,354 offenders
were evaluated and deemed not in need of civil
management. Of those 1,354 individuals, 1,181
had been incarcerated in DOCS and were released


2008 Annual Report on the Implementation of MHL Article 10

Table 3
Characteristics of the Offenders Reviewed by OMH
Offenders Reviewed Under SOMTA 11-01-07 to 10-31-08
to CRT
Characteristics of Referrals
(n = 1,204)

Static-99 Risk Score
% 0-3

Referred to CRT,
but Not Referred for
Civil Management
(n = 150)

for Civil
(n = 139)




% 4-5	




% 6-7	




% 8 or higher	




2.3 (1.4)

5.3 (1.6)

6.2 (1.5)










% with "child victim" charge in criminal history 76.4










Sexual Abuse	




Criminal Sexual Act (Sodomy)










Region of Last Conviction Prior to SOMTA Review
% New York City



average score (SD)	

Victim/Offender Relationship
% unrelated


% stranger	

Characteristics of Victims in History
% male victim
Characteristics of Instant Offense
% PL 130 offense

% other sexual offense	
% designated felony


% suburban New York City	




% upstate	







Parole Time Remaining on Sentence
% with time remaining

*	 An additional 88 offenders were referred to OMH for SOMTA review, but were deemed to not have committed a
SOMTA-qualifying offense.
a Victim/offender relationship was defined as outlined in the Static-99 coding manual.
b See Appendix Table 1-B for listing of designated felonies.

January 2009


from prison by the close of the reporting period
(October 31, 2008). In addition, OMH had available data on another 500 individuals who had
been screened prior to November 1, 2007 and had

been released from DOCS by the end of the re­
porting period (October 31, 2008). These two
groups of individuals were combined for the pur­
pose of analyzing their success in the community

2008 Annual Report on the Implementation of MHL Article 10

following release from prison. The questions ad­
dressed by this analysis were whether these of­
fenders were re-arrested for any criminal offense
and whether they were re-arrested for a sexual of­
fense during their time in the community follow­
ing civil management review. Because these
individuals varied in terms of their “time at risk”
in the community, a statistical technique termed
“survival analysis” was employed to measure the
extent of recidivism. Survival analysis essentially
develops a “best estimate” of recidivism over time
for an entire sample given the patterns of recidi­
vism occurring among sub-samples “at risk” for
various amounts of time.
Figure 3 provides a “best estimate” of re-arrest, for
any criminal offense, for individuals who were re­
leased from DOCS subsequent to an OMH deci­
sion to not pursue civil management. The solid

line represents persons with a Static-99 risk score
of 1-3 while the dashed line represents those of­
fenders with a Static-99 score of 4 or 5, and the
dotted line represents persons with a Static-99
score of 6 or higher. Across all three groups of of­
fenders, approximately 17% were re-arrested dur­
ing their first year of release. The re-arrest rate was
highest for those scoring 4 or 5, for whom it
reached approximately 26% at the one-year mark.
While those scoring 6 or higher had a lower rate of
re-arrest than those scoring a 4 or 5 on the Static­
99, the group is relatively small and, thus, provides
less stable estimates at this early stage of release.
Figure 4 shows the trend in re-arrest for a sexual
offense for the entire group of releases. This
analysis is not provided by risk level because the
rates of re-arrest were so low that estimates for
subgroups lacked stability. Overall, less than 2%
Figure 3

Survival analysis 

of rearrest for any 

criminal offense 

following release

from DOCS


Percent rearrested

Static 4-5
Static 6-10
Static 1-3

Percent rearrested on sex offense







Days since DOCS release





Figure 4

Survival analysis 

of rearrest for a 

sex offense following 

release from DOCS


January 2009





Days since DOCS release







2008 Annual Report on the Implementation of MHL Article 10

were re-arrested for a sexual offense at the oneyear mark. More “time at risk”, however, is needed
to reliably discern differences in patterns of sex­
ual recidivism across risk groups.14

Figure 6
Geographic Region of Civil
Management Cases
Number of cases






Part III:
The Adjudication
of Article 10 Referrals


Between the effective date of Article 10 (April 13,
2007) and October 31, 2008, OMH referred 291 sex
offenders to the OAG for civil management adju­
dication, 139 of whom were referred during the re­
porting period November 1, 2007 thru October 31,
2008.15 Critical junctures in the adjudication
process include the probable cause determination,
the placement of the respondent in secure treat­
ment pending trial, a pre-trial SIST investigation,
and the bifurcated trial in which the issue of men­
tal abnormality is litigated separately from the issue
of dangerousness. Each juncture requires the coor­
dinated efforts of many parties including OMH,
Figure 5
Division of Pa­
Regions ofRegion
the NYS
of theOffice
role (Parole), and
the Attorney
of theofAttorney
well as the
courts, MHLS,
and, in some
cases, local cor­
rectional facili­
ties. The OAG
assigns cases to
regional of­
fices based upon
the initial loca­
tion of the litiga­


St. Lawrence

OAG Regional Office

New York City
tion which is driven by the geographic location of
an inmate within the prison system(see Figure 5).
The geographic distribution of the cases referred
over the last 12 months is presented above in Figure 6. As shown, at their inception, the cases are
most commonly assigned to the Buffalo region, fol­
lowed by Poughkeepsie, Albany, and Utica.




Probable Cause Hearings


















































New York

Article 10 provides that within 30 days of the filing
of the sex offender civil management petition, the
court shall conduct a hearing (without a jury) to
determine whether there is probable cause to be­
lieve the respondent is a sex offender with a men­
tal abnormality, as defined by statute. The hearing
is to commence no later than 72 hours from the
date of the respondent’s anticipated release, unless
the failure to commence the hearing was due to
the respondent’s request, action, or condition, or
occurred with his or her consent.



January 2009


14 A 2% sexual rearrest rate at the one-year mark is generally comparable to the rates found in other recent studies of sexual
recidivism. It is worth noting that sexual recidivism appears to have decreased over the past few decades. For example, a
large number of studies examining the sexual recidivism rates associated with Static-99 scores have shown that while the
ability of the Static-99 to rank offenders according to relative risk is reasonably consistant across samples and settings, the
observed recidivism rates vary across studies. Specifically, the average recidivism rates associated with each risk level are
lower in contemporary samples (1990s and more recent) than in the original developmental samples who were released
from prison during the 1970s and 1980s.
15 Sixty of the cases referred for civil management were “Harkavy cases” that were re-evaluated under Article 10.

2008 Annual Report on the Implementation of MHL Article 10

Although the main statutory purpose of the prob­
able cause hearing is to determine whether there
is probable cause to believe that the respondent is
a sex offender who suffers from a mental abnor­
mality, a federal District Court has ruled that the
State also needs to show current dangerousness at
the probable cause stage in order to place the re­
spondent in secure treatment pending trial.16 A
typical hearing will include the testimony of the
psychiatric examiner, followed by cross examina­
tion by MHLS. In some cases, MHLS may have
retained its own psychiatric expert to assess the
respondent and, if so, that expert may testify as
well. On rare occasions, the OAG may also retain
a psychiatric expert (other than the OMH psy­
chiatric examiner), who also may testify at the
probable cause hearing.
Probable cause hearings are to
occur in the county in which
the offender resides and the
“residence” is usually a state cor­
rectional facility. The respon­
dent can seek a change of venue,
however, to the county of con­
viction underlying the Article
10 referral. While respondents
have the right to a probable
cause hearing, they may waive
that right and consent to a
probable cause finding.
Table 4 shows the number of
probable cause determinations
by month since the inception of
Article 10 and further breaks
down the determinations into
those resulting from waiver and
those resulting from a hearing.As
can be seen, over the last 12
months (November 1, 2007 to
October 31, 2008), there have
been 170 probable cause deter­
minations and the average num­
ber of monthly determinations
has increased. Furthermore, a lit­

tle over three-quarters of these determinations fol­
lowed a hearing.All but one probable cause hearing
resulted in a finding of probable cause that the re­
spondent was a dangerous sex offender who suffers
from a mental abnormality.
The data presented earlier in Figure 6 illustrate the
geographical dispersion of the Article 10 caseload
at their inception and the logistical challenge faced
by OMH in transporting both psychiatric exam­
iners and respondents to the various court pro­
ceedings. OMH psychiatric examiners are located
in Albany, Rochester, and Poughkeepsie. When
schedules permit, they are assigned to cover cases
in which the respondent is incarcerated in their
region of the State. However, respondents often
move for a change in venue either before or sub­
sequent to the probable cause hearing, requiring

Table 4
Probable Cause Determinations by Month17
Probable Cause Determinations
Not waived




16 While Article 10 stipulates that, upon a finding of probable cause, the respondent is to be transferred to secure treatment
when released from custody, the court in MHLS, et ano. v. Spitzer, et al. (U.S. District Court, Southern District, 11/16/07)
enjoined the State from placing respondents in secure treatment absent a showing of current dangerousness.
17 Probable cause hearing data come from probable cause orders, SIST orders, confinement orders, and the OAG tracking
spreadsheet dated 11/19/08.

January 2009


2008 Annual Report on the Implementation of MHL Article 10

OMH psychiatric examiners to travel significant
distances to testify in court proceedings. Accord­
ing to data provided by the OAG, such changes of
venue occur in 46% of all cases.18 For example, a
psychiatric examiner from Rochester may con­
duct an interview in Attica Correctional Facility,
but may need to travel to New York City to testify
due to a change in venue.
During Fiscal Year 2008-09, OMH will spend an
estimated $550,000 to transport respondents to
and from court hearings and other appointments.
In addition, the agency is expending an estimated
$80,000, annually, for psychiatric examiner travel
(i.e., daily expenses and transportation costs). The
latter figure does not account for examiner salaries
nor does it include the cost of the purchase and
maintenance of automobiles used by the examin­
ers. The fiscal impact of changes in venue and the
geographical spread of probable cause hearings
could be greatly reduced through greater use of
videoteleconferencing (VTC).As noted in a recent
report authored by Chief Judge Judith Kay and
Chief Administrative Judge Ann Pfau, the organ­
ized bar has advocated for greater use of VTC in
civil matters.19 This court system report also rec­
ommends greater use of VTC in some criminal
matters, even in circumstances in which the de­
fendant opposes such usage. Although the Uni­
fied Court System has been encouraged to employ
VTC, such “electronic appearances” have been
sparingly used in Article 10 proceedings. This
technology has been successfully used in other lit­
igation contexts and is routinely used in New York
State and in many other states to provide clinical
evaluations and primary direct clinical care where
it is typically referred to as “telepsychiatry.” Its ex­
panded use in Article 10 proceedings would con­
siderably reduce the fiscal impact of changes in
venue and the geographical spread of probable
cause hearings.

Pre-trial Placement in Secure Treatment
A probable cause finding results in the placement
of the respondent in an OMH secure treatment
facility upon his release from incarceration,
where he will remain until a final disposition oc­
curs.20 However, the placement of respondents in
OMH secure treatment while awaiting trial often
proves unproductive because respondents are
frequently unwilling to fully participate in treat­
ment programming prior to adjudication. For
example, staff at Central New York Psychiatric
Center (CNYPC) estimates that while 90% of
the pre-trial respondents attend group counsel­
ing, 25% refuse to participate in any discussions
and another 50% refuse to complete any written
assignments. Thus, at least 75% of respondents
are not meaningfully participating in treatment
and their lack of participation is disruptive to the
treatment groups.21
The problems presented by pre-trial respondents
are compounded by the protracted nature of Ar­
ticle 10 litigation. Figure 7, on page 15, provides
an estimate, through use of survival analysis, of
the percent of cases reaching disposition by the
number of days since probable cause determina­
tion. An estimated fifty percent of the cases are
disposed within 210 days of the probable cause
Given the high cost of secure treatment and the
low treatment participation rate of pre-trial Arti­
cle 10 respondents, the State should seek an alter­
native means of retaining control over this
population without expending scarce treatment
resources and disrupting the treatment of the ad­
judicated Article 10 population.


January 2009


18 According to data maintained by the OAG, 106 cases involved a change of venue, 57 of which occurred pre-probable cause
and 49 post-probable cause. Cases were most likely to be moved to Bronx, Kings and Monroe counties.
19 Kaye, J., & Pfau, A. (2008). Green justice: An environmental action plan for the NYS court system. Retrieved November 17,
2008, from
20 The structure and content of the treatment is described infra.
21 Respondents in pre-trial status often report that they are refusing to actively participate in treatment based upon the advice
of their MHLS lawyer. While OMH treatment programs do not seek to elicit information to help inform the civil manage­
ment determination, information divulged by respondents during the course of treatment is not protected and, if re­
quested, would be made available to the court with jurisdiction over the Article 10 case. Moreover, in order to move into
the second phase of treatment, participants must fully disclose their sexual offense histories and be willing to participate in
psychological testing, including the Penile Plethysmograph (PPG) and Polygraph. Pre-trial respondents are rarely willing
to meet these conditions.

2008 Annual Report on the Implementation of MHL Article 10

Figure 7
Survival Analysis
of Time to Disposition
in Article 10 Cases


Percent Disposed










Days Since Probable Cause Determination

Article 10 Trial Process
Article 10 respondents have the right to a trial by
jury. The jury, or court if a jury trial is waived,
must determine (by unanimous vote) whether a
respondent is a “detained sex offender who suf­
fers from a mental abnormality.” The burden of
proof, placed upon the OAG, is one of “clear and
convincing evidence” rather than “beyond a rea­
sonable doubt,” which is the standard that applies
in criminal proceedings and civil commitment
proceedings in many states.22 If the jury, or court
if a jury trial is waived, finds that the respondent
suffers from a mental abnormality, the trial judge
must determine whether the respondent is a dan­
gerous sex offender requiring confinement or a
sex offender requiring SIST. As with the earlier
phase of trial, the standard of proof for the dan­
gerousness determination is one of “clear and
convincing evidence.”
As of October 31, 2008, 33 civil management tri­
als have been completed. Mental abnormality was
found in 28 (84.8%) of the trials, 10 of which re­
sulted in a finding that the respondent is a “dan­
gerous sex offender requiring confinement” and




three of which resulted in SIST determinations
(15 cases were still pending a “dangerousness” de­

Part IV: Sex Offender Treatment
As noted above, sex offenders under civil man­
agement will receive treatment within an OMH
secure treatment facility if they are placed there
pending trial or have been adjudicated as a dan­
gerous sex offender requiring confinement. Those
adjudicated as sex offenders requiring civil man­
agement, but not adjudicated as dangerous sex of­
fenders, are released to the community under
SIST. As of October 31, 2008, 122 respondents
were designated to secure treatment pre-trial and
awaited adjudication, 56 were designated to se­
cure treatment as dangerous sex offenders requir­
ing confinement and 36 were under active SIST
orders.23 Over four-fifths of those adjudicated as a
dangerous sex offender consented to confinement
rather than proceeding to trial.

22 A “beyond a reasonable doubt” standard is used in civil commitment court proceedings in 11 states including Arizona,
California, Illinois, Iowa, Kansas, Massachusetts, Missouri, South Carolina, Texas, Washington, and Wisconsin.
23 Nine of the 122 pre-trial designations to secure treatment were still awaiting a probable cause determination. These nine
individuals were Harkavy cases and had entered the treatment system prior to the enactment of Article 10.

January 2009


2008 Annual Report on the Implementation of MHL Article 10

Strict and Intensive Supervision
and Treatment (SIST)
New York and Texas are the only states that statu­
torily authorize the placement of civilly managed
sex offenders directly into the community.Article
10 provides for either confinement in secure treat­
ment or management in the community under a
SIST order, depending on the dangerousness de­
termination. The Texas statute provides for only
community-based civil management of sex of­
fenders, although, in practice, the State often uti­
lizes local jails and other correctional facilities as
community residences for the purpose of civil
The primary goal of SIST is to successfully man­
age, in the community, sex offenders who are de­
termined to suffer from a mental abnormality that
predisposes them to commit sexual offenses, but
who are not deemed to be dangerous enough to
require civil confinement. SIST offers increased
public protection through mandatory treatment
and close supervision, while avoiding the high
costs associated with confinement in secure treat­
ment. As of October 31, 2008, 39 individuals have
been subject to a SIST order, 28 of whom were or­
dered onto SIST between the reporting period of
November 1, 2007 and October 31, 2008. Over
half of SIST participants were simultaneously
serving a parole term (Table 5).
When a sex offender is placed on SIST, s/he agrees
to abide by specific court-issued conditions, which
are usually based upon the recommendations of
Parole in consultation with OMH and the desig­
nated treatment provider. These conditions mirTable 5
Respondents Placed on SIST
as of October 31, 2008

January 2009


SIST Activity
Total SIST Orders . . . . . . . . . . . . . . . . . . . . .39
Active SIST Orders . . . . . . . . . . . . . . . . . . . .36
Respondents on Parole and SIST . . . . . . . . .22
Respondents on SIST Alone . . . . . . . . . . . . .14
Respondents in Community . . . . . . . . . . . . .22
Respondents with a SIST Order –
Release Pending . . . . . . . . . . . . . . . . . . . . . . .1

ror specialized conditions imposed on sex of­
fenders subject to traditional parole supervision
and often include, but are not limited to, elec­
tronic monitoring or global positioning satellite
(GPS) tracking, polygraph monitoring, specifica­
tion of residence, prohibition of contact with
identified past or potential victims, a specific set
and frequency of treatment sessions, and other re­
lated treatment and supervision requirements.
Further specifications generally include abiding
by curfews and abstaining from drinking alcohol,
using illicit drugs, possessing pornography, and
using the internet.
Parole is responsible for monitoring individuals
on SIST, implementing the supervision plan, and
assuring compliance with court-ordered condi­
tions. Sex offenders placed on SIST often partici­
pate in multiple treatment programs in the
community (see Table 6), and OMH and com­
munity treatment providers work closely with Pa­
role to ensure compliance with all SIST
conditions. Supervision/treatment team members
participate in monthly case management meet­
ings to review the progress of the individual and
ensure that any necessary revisions in the super­
vision/treatment plan are identified and instituted
in a timely manner.

Table 6
Treatment Services Utilized
by Respondents on SIST Orders

Percentage Referred
and Utilized

Sexual Offender Treatment . . . . . . . . . . .100%
Substance Abuse Treatment . . . . . . . . . . .46%
Mental Health Treatment . . . . . . . . . . . . .13%
Case Management Services . . . . . . . . . . . .5%
All sex offender treatment under SIST is based
upon a cognitive-behavioral model, and incor­
porates a relapse prevention component. The
treatment team seeks to assist the offender in
gaining and maintaining control over criminal
sexual behaviors, deviant cognitions and arousal
patterns, and other life issues that may contribute
to re-offending.

2008 Annual Report on the Implementation of MHL Article 10

Housing and treatment availability remain signif­
icant challenges to SIST plan development.A large
portion of counties and municipalities through­
out the State have residency restrictions for sex of­
fenders.24 While such restrictions are intended to
improve public safety, research overwhelmingly
indicates that residency restrictions neither reduce
recidivism nor increase public safety.25 These find­
ings are not surprising given that unsuitable hous­
ing in locations that are remote from social
services, employment opportunities, and support
systems can interfere with the treatment and su­
pervision of sex offenders. As shown in Table 7,
one-third of sex offenders released on SIST
resided in hotels/motels and shelters due to the
unavailability of more appropriate housing.
Table 7
Type of Residence Utilized
by Respondents on SIST Orders
of Residence


Housing Program . . . . . . . . . . . . . . . . . . .33%
Shelter . . . . . . . . . . . . . . . . . . . . . . . . . . .18%
Family Members . . . . . . . . . . . . . . . . . . . .15%
Hotel/Motel . . . . . . . . . . . . . . . . . . . . . . .15%
Own residence/Apartment . . . . . . . . . . . . .8%
Temporary/Other . . . . . . . . . . . . . . . . . . . . .8%
Residential Treatment Facility . . . . . . . . . .3%
SIST Violation Process
If a SIST respondent seriously or repeatedly vio­
lates the conditions of the SIST order, s/he is taken
into custody and a psychiatric evaluation is or­
dered. As stipulated in SOMTA, once a serious
SIST violation has occurred, the psychiatric eval­
uation must be conducted within five days of the
individual being taken into custody. The purpose

of the psychiatric evaluation is to determine
whether modifications are needed to the SIST
conditions or whether the individual is a danger­
ous sex offender in need of confinement.
Of the 39 individuals subject to a SIST order since
the inception of Article 10, 17 have been charged
with violating either the SIST order of conditions
or the conditions of parole supervision (the latter
can occur when individuals are simultaneously
serving a parole term and under a SIST order).26
Two of the 17 violations involved allegations of
sexual fondling. These two individuals (and two
other SIST violators) were returned to DOCS cus­
tody on parole violations, three SIST violators were
civilly confined, and the remaining 10 were pend­
ing adjudication at the end of the reporting period.

Treatment in OMH Secure Facility
Section 10.10(a) of the MHL authorizes the Office
of Mental Health to accept custody and confine
respondents in secure treatment facilities, for the
purposes of providing care, treatment, and con­
trol, following a finding of probable cause. The
law states that secure treatment facilities are sep­
arate and distinct facilities from psychiatric hos­
pitals (§7.18(b)), and that its residents must be
kept separate from other persons in the care, cus­
tody, or control of the Commissioner of OMH
(§10.10(e)). Currently, OMH operates Sex Of­
fender Treatment Programs (SOTPs) within the
secure treatment facilities located on the grounds
of CNYPC, and the St. Lawrence Psychiatric Cen­
ter (SLPC). The CNYPC program has a capacity
of 150, while SLPC can accommodate up to 80
residents. In addition the Manhattan Psychiatric
Center (MPC) has a 20-bed ward for respondents
attending court proceedings in the New York City
area. As of October 31, 2008, 131 respondents had
been designated to CNYPC and 47 have been des­
ignated to SLPC (see Table 8, page 18).

24 At least 19 counties have countywide residency restrictions. In addition, many cities, towns and villages in counties without
countywide residency restrictions have enacted local restrictions.
25 See: Duwe, G., Donnay, W., & Tewksbury, R. (2008). Does residential proximity matter? A geographical analysis of sex offense recidivism. Criminal Justice and Behavior, 35, 484-504; Nieto, M., Jung, D., & Leno, M. (2006). The impact of residency

restrictions on sex offenders and correctional management practices: A literature review. Sacramento, CA: California Research


26 As of October 31, 2008 there has been a total of 21 SIST violations, by a total of 17 respondents (some respondents have
multiple violations).

January 2009


2008 Annual Report on the Implementation of MHL Article 10

Table 8
SOTP Census as of October 31, 2008

Designations as of 10/31/08




Pre-trial Status




Civilly Confined
Consent Confinement
Trial Verdict




Secure Treatment Programming

Five-Phased Treatment

As with SIST, the treatment provided in the secure
treatment facilities is grounded in cognitive-be­
havioral therapy and relapse prevention as well as
a risk-needs-responsivity approach and the Good
Lives Model. Cognitive-behavioral therapy seeks
to enable the client to identify and modify errors
in thinking and to learn and practice pro-social
behaviors. The relapse prevention component en­
ables clients to self-monitor, identify early signs of
relapse, and seek the support needed to remain
crime-free and productive within both institu­
tional and community settings. Treatment is
premised upon a detailed assessment of the indi­
vidual’s sexual pathology, as well as other patholo­
gies, risk factors, learning styles, and strengths or
protective factors.

Treatment is structured into five phases, each of
which contains several treatment, skill mastery,
and psycho-educational modules. Moreover, each
phase of treatment has specific goals and measur­
able outcomes. Progression through the phases of
treatment is reviewed by the clinical and admin­
istrative staff within each facility. During each
treatment phase, various types of assessments are
conducted to evaluate the resident’s progress in


January 2009


A rigorous assessment protocol is utilized in the
secure treatment facilities in order to determine
the resident’s treatment needs. As such, a com­
prehensive evaluation and assessment is con­
ducted prior to the onset of treatment. The
assessment evaluates sexual interest, personality
type, reading comprehension, cognitive limita­
tions, substance abuse, psychopathy, treatment
progress (if the resident participated in treatment
while incarcerated or under parole supervision),
and knowledge of treatment. OMH has devel­
oped a recommended test battery schedule to be
used in its secure treatment facilities.

Treatment Readiness is Phase I of the treatment
program. It focuses on developing the skills
needed to successfully participate in treatment.
During this phase of treatment, residents are not
expected to discuss details of their sexual offend­
ing histories. They are expected, however, to admit
to having committed a sexual offense, develop fa­
miliarity with group processes and their treatment
plan, acknowledge wanting to change, and com­
mit to participating in treatment. At the end of
Phase I, residents are expected to sign the Ad­
vancement to SOTP Phase II-IV Consent to Partic­
ipate in Treatment form, a contract stating that
they are willing to participate in psychological
testing, including the penile plethysmograph
(PPG) and polygraph.
Phase II is Skills Acquisition and Practice, in which
residents begin to explore their offense history,
harm caused to their victims, personal values,
sexuality issues, arousal patterns, risk factors, and
strategies to live an offense-free life. During this
phase, residents are required to participate in the
group process, acknowledge their sexual offense
history, accept personal responsibility for their

2008 Annual Report on the Implementation of MHL Article 10

offenses, identify issues related to disordered
arousal patterns, and identify their strengths,
treatment needs and goals. Moreover, residents
in Phase II are required to:
◆	 write and present an offense history and au­
◆ identify and journal thinking errors;
◆	 demonstrate positive community member­
ship by following the Code of Conduct;
◆	 examine personal values and how they can
affect success in the community;
◆	 engage in behaviors that are pro-social, and
refrain from secretive, deceptive and manip­
ulative behaviors;
◆ express emotions appropriately;
◆ show motivation to change; and
◆	 demonstrate an understanding of how to
apply a relapse prevention strategy to one’s
particular offense pattern.
Phase III of treatment is Skills Application, in
which residents are expected to demonstrate and
internalize pro-social behaviors. In Phase III, the
resident is required to demonstrate an ability to
challenge and replace thinking errors in a variety
of situations, use pro-social coping skills when
faced with difficulties, consistently demonstrate
assertiveness skills when interacting with others,
and ask for guidance and assistance from others
when having difficulties. Additionally, during
Phase III of treatment, residents are expected to
interrupt and change inappropriate behaviors,
commit to maintaining healthy relationships,
and consistently demonstrate an ability to delay
Phase IV of treatment is Community Re-Entry
and Planning Skills, in which residents begin to
develop pre-discharge plans. In order to com­
plete this phase of treatment, residents must
demonstrate realistic short-term and long-term
goals, and identify and make contact with a com­
munity support system including community
service providers and, if appropriate, family and
other community members who may assist in
the transition process.
Phase V of treatment is Discharge. It is during this
final phase of treatment that residents are rec­
ommended for discharge to the community.
This discharge, however, is only recommended
after clinical staff and a psychiatric examiner

have reviewed the resident’s progress and have
determined that all treatment goals have been
adequately met. A comprehensive release plan is
developed prior to release, and it is expected that
individuals being released from secure treatment
will be transitioned back to the community
through SIST. The final decision to approve dis­
charge lies with the court.

Treatment Aids
Treatment for sexual offending can be enhanced
through the use of treatment aids such as phar­
macologic agents designed to reduce sexual
arousal and the PPG, which measures deviant
arousal interests.
While most sex offenders can gain control of their
deviant sexual arousal and offending behaviors
through cognitive restructuring and pro-social skill
development, some sex offenders require pharma­
cologic agents. Consequently, OMH is developing
the capacity to provide pharmacologic interven­
tions to augment cognitive-behavioral therapies.
Pharmacologic interventions are commonly used
in the treatment of sex offenders, particularly in
Canada and Europe. SOTP physicians have re­
ceived specialized training in the prescribing of an­
drogen reduction agents and selective serotonin
reuptake inhibitors. As such, an androgen reduc­
tion protocol is under development by OMH.
PPG is used in treatment phases II thru IV to
measure deviant sexual arousal as well as treat­
ment progress. It is not used to assess for risk of
sexual recidivism. If the resident consents to par­
ticipate in the PPG (a separate consent form is re­
quired), the assessment occurs within a laboratory
setting in complete privacy.

Special Populations
In order for any behavioral treatment to be effec­
tive, it must be tailored to the needs and learning
styles of the recipients. For instance, individuals
with intellectual limitations or mental illness re­
quire specialized treatment programming, as
treatment recipients must be capable of under­
standing and internalizing the treatment lessons.
Moreover, the treatment environment must be

January 2009


2008 Annual Report on the Implementation of MHL Article 10

perceived as a safe place to learn and practice prosocial skills. Perceptions of safety can be adversely
affected by residents with high psychopathy who
can be threatening to, and manipulative of, other
residents. Thus, OMH has recognized the need to
develop more specialized services in order to meet
the treatment needs of the diverse SOTP popula­
tion. OMH is currently developing three special­
ized treatment tracks for those with serious and
persistent mental illness (SPMI), cognitive im­
pairments, and psychopathy.

ment a total over 45,000 days, at a cost of over $28
million to State taxpayers (or more than
$620/day/offender).27 Approximately 40% of
those in pre-trial status had not served their max­
imum sentence in prison prior to being trans­
ferred to secure treatment, but rather had been
released from prison at their conditional release
date. If these respondents were to remain in
DOCS’ custody until they complete their entire
sentence, there could be significant savings due to
the lower cost of incarceration relative to hospi­
tal-based treatment.

Annual Reviews

The placement of pre-trial sex offenders into secure
treatment is problematic due to their low partici­
pation in treatment programming. Their presence
in secure treatment programs is not only disrup­
tive, but, as discussed below, is also extremely ex­
pensive. Absent more expeditious adjudication of
these cases, the problems presented by pre-trial re­
spondents are likely to persist. Other, less costly,
placements are needed to maintain Article 10 re­
spondents during the pendency of their cases.

Pursuant to MHL §10.09, the Commissioner of
OMH must assure an annual review of whether
each SOTP resident remains “a dangerous sex of­
fender requiring confinement.” OMH staff has de­
veloped a multi-step annual review process that
includes notifying the resident of her/his right to
petition for discharge, as well as a psychiatric ex­
amination. The psychiatric examiner’s report is re­
viewed internally and the Commissioner (or his
designee) notifies the court, in writing, as to
whether or not the resident is currently a danger­
ous sex offender requiring confinement. Between
November 1, 2007 and October 31. 2008, OMH
completed 15 annual reviews which were due
prior to or shortly after November 1, 2008.

Part V:
Summary of Challenges
and Recommendations
Pre-trial Commitments
and Low Treatment Participation

January 2009

As noted earlier, Article 10 requires respondents,
for whom probable cause has been found, to be
transferred to secure treatment upon release from
DOCS, an OMH or OMRDD facility, or parole
supervision. As of October 31, 2008, 69% of sex
offenders in secure treatment were in pre-trial sta­
tus. Cumulatively, they had been in secure treat­

Census Pressures and Program Costs
As noted above, 178 individuals were designated
to a secure treatment facility as of October 31,
2008. The two facilities currently operating have a
combined capacity of 230 patients. An additional
20 beds are available in the Manhattan PC for the
placement of Article 10 residents who are attend­
ing court proceedings in the New York City area.
On average, OMH receives 11 designations per
month. Thus, it is anticipated that the demand for
secure treatment beds will exceed capacity at
CNYPC and SLPC by early 2009. At that time,
OMH will need to begin operation of the newly
constructed Mid-State secure treatment facility
that is located adjacent to CNYPC. The Mid-State
facility will provide another 150 beds, which will
likely be filled by late 2010 given (1) the current
rate of Article 10 referrals, (2) average time to dis­
position, (3) high rates of finding mental abnor­
mality at the trial stage, and (4) limited use of
SIST. Although capital construction generally
takes three or more years to plan and complete,
no new construction is under development. If



27 These pre-trial respondents include some Harkavy cases that have been hospitalized for up to three years.

2008 Annual Report on the Implementation of MHL Article 10

patterns of pre- and post-trial commitments to
secure treatment remain stable, then the census
could reach 600 by 2012.
The costs of SOMTA, as borne by OMH, includes
(1) administrative staff at OMH Central Office,
which is responsible for Article 10 assessment, re­
ferrals, and administrative oversight of SIST and
secure treatment, (2) SIST treatment support, and
(3) secure treatment facility staff. Central office
staffing costs approximate $4.7 million. SIST
treatment costs are currently estimated at $42,000
annually, but will increase as more individuals are
ordered to SIST.28 By far the greatest cost of
SOMTA for OMH is that associated with secure
treatment. The annual cost at an OMH facility, in­
cluding staff salaries, non-personal service sup­
port, and employee fringe benefits, has been
budgeted at approximately $225,000/patient. Ini­
tially, OMH secure sex offender treatment pro­
grams were staffed at a staff/patient ratio of 2.5 to
1, resulting in an annual treatment cost of $22.5
million per 100 residents. OMH is now reconfig­
uring its staff composition at the SOTPs, as part of
the Governor’s 2009-10 Executive Budget pro­
posal, to reduce the staff/patient ratio to 1.5 to 1
plus security and support, which will lower the
cost to about $175,000/patient, or about $17.5
million per 100 residents.29 Even at the reduced
staffing ratio, the annual value of secure treatment
for the projected 600 placements in 2012 could
rise to $105 million annually, exclusive of capital
construction costs.
The challenge for New York State is to minimize
the cost of treating and managing high-risk sex
offenders, while maximizing the benefit in terms
of public safety. Unfortunately, the experiences of
many other states engaged in the civil commit­
ment of sex offenders suggest that, absent careful
planning and innovative programming, the civilly
committed population could continue to grow
unabated with few being released back into the

community.30 The State may be able to stem the
growth of this population, however, and improve
the cost effectiveness of treatment programming
by (1) providing significantly more intensive
treatment of high-risk sex offenders while they are
incarcerated and (2) developing transitional se­
cure treatment programming in the community
to provide residents the opportunity to exhibit
success in the community, while still remaining in
a residential program.

Intensive Treatment for High-Risk
Sex Offenders in DOCS
Clearly, the cost of secure treatment for civilly
confined sex offenders is substantial and will con­
tinue to grow into the foreseeable future. While
the civilly confined population may present grave
risks to public safety if released to the community
without substantial treatment intervention, it may
be efficacious to invest more resources into pro­
viding intensive treatment for this very high-risk
population while they serve their penal sentences
in correctional facilities. As noted earlier in Table
2, sex offenders referred to the OAG for civil man­
agement averaged 6.9 years in DOCS prior to
their first release on the sentence underlying their
Article 10 referral. Of respondents referred to the
OAG since April 2008, one-third had not partici­
pated in any sex offender treatment while in
DOCS.31 The remaining two-thirds averaged ap­
proximately 6 months in DOCS sex offender
treatment prior to release. Because DOCS has
only recently initiated a longer-term treatment
program for sex offenders in need of more treat­
ment, high-risk sex offenders may leave DOCS
with more treatment in the coming years. Given
the costliness of secure treatment in OMH facili­
ties, it makes economic sense to provide as much
treatment as possible to high-risk sex offenders
while they’re incarcerated and to rely more heav­
ily on the SIST program to manage their risk

28 The $42,000 estimate is based on an expenditure of $21,000 during the first six months of 08-09 fiscal year.
29 OMH would retain a few wards with staff/patient ratios of 2.0 to 1 to handle residents who are seriously and persistently
mentally ill or behaviorally disordered to the degree that they present a danger to themselves or others.
30 In 2005, the Washington State Institute for Public Policy issued a report documenting the number of civil commitments and
discharges across 17 states and concluded that 3,493 individuals had been civilly committed since 1990 and only 427 had
been released. (See: Lieb, R., & Gookin, K. (2005, March). Involuntary commitment of sexually violent predators: Comparing
state laws. Olympia, WA:Washington State Institute for Public Policy.)
31 April 2008 was selected as the starting period for this analysis since DOCS treatment programming expanded in recent years.

January 2009


2008 Annual Report on the Implementation of MHL Article 10

upon completion of their penal sentence. Addi­
tionally, by intensifying and phasing DOCS-based
treatment in a manner comparable to that pro­
vided in the OMH secure treatment facilities,
those respondents for whom civil confinement
may still be needed may be able to enter the OMH
secure treatment facility at, essentially, Phase III
or IV (having completed the early phases in
DOCS). This change could significantly reduce
the amount of time residents would need to re­
main in civil confinement prior to transition back
into the community. Ultimately, the decision to
meaningfully participate in treatment and de­
velop control over deviant arousal patterns lies
with the offender. It may be advisable to examine
whether the Board of Parole should have greater
discretion in the release of recidivist sex offenders
who refuse treatment. Thus, the State may need
to consider expanding the types of sex crimes el­
igible to be sentenced to indeterminate life sen­

resulted in a three-year average length of stay in
civil commitment.33 Community-based transi­
tional secure treatment also would provide the
courts with a placement opportunity that is less
intensive than traditional secure treatment, but is
more highly supervised than a SIST placement.
Lastly, it offers an alternative to traditional secure
treatment for SIST violators who need more su­
pervision, but not of the magnitude provided by
hospital-based secure treatment.
Community-based correctional facilities could
offer the type of secure community residences
needed to reintegrate civilly committed sex of­
fenders back into the community. Placement in
such facilities would afford residents the opportu­
nity to exhibit success in the community, while still
maintaining significant supervision and control
over that population.

Transitional Secure Treatment
in the Community
Secure treatment phases II through V require
residents to demonstrate an ability to apply the
skills learned in treatment and prepare for rein­
tegration back into the community. It is difficult,
however, to demonstrate skill acquisition and
preparedness for reintegration absent an oppor­
tunity to exhibit those skills in a community set­
ting. This conundrum likely contributes to the
extremely low release rates experienced by civil
commitment programs throughout the country.
Arizona is the only state with a high rate of dis­
charge from civil commitment and the director
of the program attributes its higher release rate
to the State’s Less Restrictive Alternative (LRA)
community reintegration program. The LRA
program provides civilly-committed sex offend­
ers with the opportunity to exhibit lawful be­
havior in the community while under
supervision and residing in a community-based,
residential facility.32 This step-down process has
January 2009

SOMTA provided the State with the authority to
civilly manage sex offenders who suffer from a
mental abnormality that predisposes them to
commit sexual offenses and results in their hav­
ing serious difficulty in controlling that criminal
behavior. Unlike legislation enacted in other
states, SOMTA offered two levels of civil man­
agement, one directly to the community through
the SIST program and a second in a secure treat­
ment facility operated by OMH. Clearly, the in­
tent of SOMTA was for secure treatment to be
utilized in those extreme cases in which the of­
fender could not be managed in the community
under intensive supervision and treatment. At
the time SOMTA was enacted, budget projec­
tions assumed a secure confinement to SIST
ratio of 1:2.5. The inverse has occurred, however,
with 178 designated to secure treatment by the
close of October 2008 and only 36 in the com­
munity under a SIST order. Moreover, 17 of the
36 on SIST were pending violation on either
SIST conditions or conditions of their Parole su-

32 Information provided in an 11/25/08 e-mail from Daniel Montaldi, Director Arizona Community Protection and Treat­
ment Center.
33 Ibid.


2008 Annual Report on the Implementation of MHL Article 10

pervision. The dynamics underlying the unan­
ticipated growth in the secure treatment popu­
lation are many, including lengthy periods of
pre-trial placement in secure treatment (most re­
spondents are in pre-trial status), an early im­
plementation trend in respondents consenting
to confinement, and the high rate at which ju­
ries find mental abnormality and courts find that
respondents with mental abnormalities are too
dangerous to be safely managed in the commu­
nity. Cumulatively, these dynamics have resulted
in the growth of secure treatment at a rate over
100 per year. Absent changes in external circum­
stances, this pattern will likely continue into the
foreseeable future. Moreover, if rates of release
from secure treatment in New York State mimic
the extremely low release rates of nearly all other
civil commitment states, the population growth
will continue unabated for many years and at
costs that may well be unsustainable in an un­
certain fiscal climate.

While civil confinement is an important tool to
have available when other means of control have
proved ineffective, much more can be done to re­
duce the need for and length of civil confinement
in New York State. Most notably, the State could
consider (1) increasing the intensity and duration
of treatment of high-risk sex offenders while they
are serving their penal sentence in DOCS, (2) en­
hancing safe housing options for sex offenders
seeking to return to the community by control­
ling residency restrictions and providing super­
vised housing programs, and (3) developing
community-based secure treatment programs
that could facilitate the transition of civilly con­
fined sex offenders back into the community and
provide enhanced housing options for SIST vio­
lators or other sex offenders in need of more su­
pervision than the SIST program can provide.
Absent such innovation, the State will bear the
enormous fiscal burden of an ever-growing civil
confinement population.

January 2009


2008 Annual Report on the Implementation of MHL Article 10


Table 1-A
SOMTA Qualifying Offenses
Article 10 Sexual Offenses (Includes Felony Attempt and Conspiracy to Commit)


E Felony
D Felony
B Felony
E Felony
D Felony
B Felony
E Felony
D Felony
E Felony
D Felony
C Felony
B Felony
B Felony
D Felony
E Felony
D Felony
D Felony
D Felony
B Felony

January 2009


2008 Annual Report on the Implementation of MHL Article 10

Table 1-B
SOMTA Qualifying Offenses
Article 10 Designated Felonies if Sexually Motivated*
(Includes Felony Attempt and Conspiracy to Commit)

January 2009



D Felony
C Felony
B Felony
B Felony
D Felony
C Felony
B Felony
A-1 Felony
A-1 Felony
A-1 Felony
B Felony
A-1 Felony
D Felony
C Felony
B Felony
B Felony
A-1 Felony
D Felony
C Felony
B Felony
C Felony
B Felony
B Felony
D Felony
C Felony
D Felony
D Felony

* Sexual Motivation may be present if:

a) Instant Offense includes behavior that could have resulted in a sex charge, but did not.

b) Instant Offense includes a sex offense charge where a plea was taken to a non-sex offense charge in satisfaction 

of the sex crime charge
c) Offender made statements of intent of a sexual nature to the victim of the instant offense
d) Instant Offense is indicative of prior modus operandi resulting in a sexual offense conviction
e) Documented admission of the offender to the instant offense being sexually motivated