Assembly Bill A10534

                                BILL NUMBER:A10534

TITLE OF BILL:
An act
to amend the mental hygiene law, in relation to allowing the detention
of a respondent of a "sex offender requiring civil management petition"
pending trial, and to establish the standard of proof at trial be
"beyond a reasonable doubt" rather than "by clear and convincing
evidence"

PURPOSE OR GENERAL IDEA OF BILL:
To strengthen the constitutionality
of the Sex Offender Management and Treatment Act by correcting
ambiguities in the statute and adjusting the standard of proof for
the civil commitment of a sex offender.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 requires
that if a court
finds probable cause that a respondent to a sex offender civil
management petition is a sex offender requiring civil management, and
the respondent is either at liberty at the time of the hearing or
eligible for release from imprisonment before the trial date, the
court must then determine whether or not there is probable cause to
believe that the respondent is a dangerous sex offender requiring
confinement.
              

Section 2 establishes that the standard of proof at a sex offender
civil management trial is beyond a reasonable doubt whether the
respondent is a detained sex offender who suffers from a mental
abnormality. In addition, in the case of a respondent who was found
incompetent to stand trial, it establishes that the standard of proof
is beyond a reasonable doubt that the respondent did engage in the
conduct constituting the offense.

Section 3 provides that this act to take effect immediately.

JUSTIFICATION:
On April 12, 2006, the Mental Hygiene
Legal Service
filed a declaratory judgment action in Federal District Court
(Southern District of New York) attacking the constitutionality of
some provisions of the Sex Offender Management and Treatment Act
("Act"), and moved for preliminary injunctive relief and a temporary
restraining order to halt enforcement of these challenged provisions
pending the outcome of the case. Shawn Short, a sex offender subject
to the Act, joined the action.
The defendants moved to dismiss plaintiffs' six causes of action. On
November 16, 2007, Judge Gerard Lynch filed a 62 page decision
granting plaintiffs' injunctive relief with regard to two of the six
causes of action, dismissed one cause of action, and declined

injunctive relief or dismissal with regard to the final three causes
of action.

The Court granted a restraining order prohibiting the detention of an
individual after a probable cause hearing unless there is also an
individualized 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 community
during the pendency of the proceedings. It held that although the
proper weight of the issue of dangerousness is mandated by the Act
after trial, it is unconstitutional to detain an individual pending
such a trial when there has been no probable cause to believe the
person may be a danger to himself or others. The Court rejected the
State's argument that dangerousness was implicit in the finding that
the person is a sex offender requiring civil management, finding that
a general degree of potential danger is insufficient - that the
finding must be that the person is
sufficiently dangerous that less intrusive conditions than detention
cannot guarantee the safety of the community pending trial.

The Court also granted a restraining order prohibiting the civil
commitment of individuals who have never been found, beyond a
reasonable doubt, to have committed a crime. It held that the Act
requires three findings with regard to the individual prior to
authorizing civil detention - that the respondent is: (i) a sex
offender; (ii) mentally ill; and (iii) dangerous. Although the Court
agreed with defendants that the standard of proof for civil
commitment is generally (under other New York State Mental Hygiene
statutes) clear and convincing evidence, he made the distinction that
such applies to only the latter two factors _ mental illness and
danger. It noted that the Act only applies to individuals who have
committed a sexual offense - the conduct that constitutes such an
offense - and that whenever a finding will subject an individual to
the stigma of a finding that he violated a criminal offense, the
proof must be beyond a reasonable doubt. Thus, the Court found that
with regard to persons who have never been convicted of the
underlying criminal acts, the burden is on the State to prove the
factor of sex offender beyond a reasonable doubt. As the statute does
not require such a standard, as to such individuals, it violates due
process.

Furthermore, the Court allowed litigation to continue on the a claim
that the act is unconstitutional in that it allows the fact finder at
the commitment trial to make a retroactive determination by clear and
convincing evidence that certain non-sex offenses were committed with
sexual motivation. The Court found the issue raised in this claim is
very similar to that with regard to individuals who have never been
found, beyond a reasonable doubt, to have committed a crime, but the
Court required a fuller record to make its determination on this issue.

The first amendment proposed in this bill codifies the Court's
requirement for a separate finding that a person is sufficiently

dangerous wherein less intrusive conditions than detention cannot
guarantee the safety of the community, in order to detain that person
pending trial.

The second amendment addresses the Court's concern that the standard
of proof of by clear and convincing evidence may not be
constitutionally sufficient with regard to certain quasi-criminal
aspects of this civil proceeding. By replacing the standard of proof
at trial to beyond a reasonable doubt for all proof required of the
Attorney General such constitutional challenges will be avoided
without subjecting a jury to varying elements of proof for different
required findings.

By the passage of the Sex Offender Management and Treatment Act the
legislature acknowledged the need to address the recidivistic sex
offenders and the goals of civil commitment - protection of society,
supervision of offenders, and management of their behavior. A swift
response to remedy potential constitutional weaknesses of the statute
is necessary to continue to ensure the goals of civil commitment are
met.

PRIOR LEGISLATIVE HISTORY:

2008: A.10189; Referred to Mental Health

FISCAL IMPLICATIONS:

No cost to the state.

EFFECTIVE DATE:

Immediately.