08/09/2011
By John Caher
A Bronx judge has ordered the state to release a potentially dangerous sex offender because of a constitutional defect in the Mental Health Law.
Supreme Court Justice Colleen Duffy held in State v. Enrique T., 2011 NY Slip Op 21269, that the law empowering New York to civilly manage sex offenders after they have completed a criminal sentence unconstitutionally requires confining them before there has been a trial to determine if civil confinement is even necessary.
Justice Duffy found that the law is rendered facially unconstitutional by the fact that it does not permit any less restrictive remedy. Her decision follows a federal court decision in March by Southern District Judge Deborah A. Batts that came to the same conclusion.
The rulings center on the 2007 Sex Offender Management and Treatment Act, which permits the "civil management" of sex offenders who have completed their criminal sentence but remain a danger to society. Under the law, if a court finds probable cause that a convicted sex offender remains a danger, the individual must be confined until a civil trial.
At trial, the attorney general has the burden of establishing by clear and convincing evidence that the offender suffers from a "mental abnormality" that predisposes him to commit sex crimes. If the attorney general prevails, the court then determines if the individual requires involuntarily confinement in a mental institution, or if the offender can safely be managed through strict, intensive community supervision.
In the case at hand, Justice Duffy in May found probable cause that Enrique T. was in need of civil management and issued an interim order holding that he is a danger to the public. Her decision last week addresses whether Enrique T. can be confined until trial, as required by Mental Hygiene Law §10.06(k).
Relying primarily on the U.S. Supreme Court's ruling in United States v. Salerno, 481 U.S. 739 (1987)—and referencing Judge Batts' directly on point decision in Mental Hygiene Legal Service v. Cuomo (PDF), 07 Civ. 2935—Justice Duffy held §10.06(k) facially unconstitutional. Salerno held that pretrial detention is permissible under the Fifth and Fourteenth amendments only when the public safety interest would not be satisfied with less restrictive conditions.
In Mental Hygiene Legal Service v. Cuomo, Judge Batts found §10.06(k) facially unconstitutional and, in April, issued a permanent injunction barring the state from enforcing the mandatory confinement provision "in the absence of a specific, individualized judicial finding of probable cause to believe that the person is sufficiently dangerous to require confinement, and that lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings."
In Enrique T., Justice Duffy said that the attorney general failed to provide any evidence to show that less restrictive conditions than confinement—if such conditions were even authorized—would suffice to protect the public. The court noted that the Office of Mental Health has already determined that Enrique T., if he is found to suffer from a mental abnormality, is a good candidate for strict, intensive supervision rather than confinement.
"Thus, respondent is faced with a Morton's Fork—he must either choose to enforce his right to a jury trial and continue to be detained for an unknown period of time in a psychiatric facility awaiting trial on this matter or surrender his right to trial and consent to a finding of mental abnormality so that he may be immediately released back to the community under [strict and intensive supervision and treatment]," Justice Duffy said. "Due process cannot countenance a statute that mandates such a choice."
The judge held that there are no conditions under which §10.06(k) can be constitutionally applied "because there is no option to release a respondent if lesser conditions than confinement would suffice, and this Court is not empowered to re-write the statute to correct its unconstitutionality."
Assistant Attorney General Shelley Forde argued for the state.
Kimberly Tate-Brown of Mental Hygiene Legal Service represents Enrique T.
She said the ruling apparently marks the first time a state court has held §10.06(k) unconstitutional.
"It is a very significant decision," Ms. Tate-Brown said. "It calls into question the constitutionality of the statute. It is a grave deprivation of their liberty interest that [sex offenders] are held beyond their criminal sentence and years and years go by and they are still locked up."
Ms. Tate-Brown said the legislative remedy would be to simply give judges the option, in appropriate cases, of allowing sex offenders to remain under community supervision until their civil management trial is concluded.
Meanwhile, the Attorney General's Office is reviewing the decision and "considering our next steps," according to spokeswoman Jennifer Givner.
The state filed its notice to appeal Judge Batts' ruling on June 1.
