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A Balance is Needed in Civil Confinement (Times Union)

A balance is needed in civil confinement


It seems like every day we turn on the television to hear of another child or young adult being abused, raped or murdered. We are outraged. And we should be.

The rape or abuse of a child is incomprehensible, and it is the responsibility of all of us to do what we can to prevent it. But a knee-jerk overreaction, particularly in the form of legislation rushed through in the height of emotion, can sometimes do more harm than good.

The state Senate recently passed a bill that provides for the civil confinement of convicted sex offenders after their prison term has expired (S 6325). The additional confinement applies to offenders who are deemed to have a mental abnormality that predisposes them to committing sexual offenses which they can’t control.

On the surface, it sounds like a good idea. Why let people out into society who we expect will offend again?

But this legislation, rushed through without a careful legal analysis, provides more questions than answers. For example, who is to decide whether a person has such a mental abnormality? The Senate bill provides for a panel of “experts,” but makes no professional or experiential requirements of such experts. And a panel of prosecutors and the attorney general are allowed to override the experts’ decision. Do law enforcement officials have a better idea of who has a mental abnormality than mental health professionals?

The bill also makes no mention of in-prison treatment. Yet treatment is one of the best ways of avoiding, through early intervention, unnecessary post-sentence restrictions on liberty as well as unnecessary expenditure of money for confinement.

And who will have the responsibility of housing and caring for these offenders? Our state’s Office of Mental Health is already overwhelmed and under-resourced in caring for those with true mental disabilities, most of whom are nonviolent.

Notably the legislation’s range is broad enough to encompass those convicted of statutory rape, including a 22-year-old who had consensual sex with a 16-year-old.

The state Assembly has introduced its own civil commitment bill (A 9282). While far from perfect, the Assembly bill represents in many ways a more careful effort to balance the need for civil commitment of dangerous sex offenders who suffer from mental illness with constitutional safeguards and appropriate treatment for such offenders.

The Assembly bill includes in-prison treatment and representation by counsel early in proceedings, and requires that strict professional credentials and screening tools be used when making a determination of whether to prolong confinement.

The New York City Bar Association agrees that we must keep the most dangerous predators locked away, as the safety of our children is paramount. But politicians who legislate only with the sensational TV news stories in mind will err in locking away individuals with no mental illness or propensity for violence.

Bettina Plevan is president of the New York City Bar Association.