Civil Confinement: Controversial reincarcerations must be done with great care

4-21-2010 New York:

Civil confinement of sex offenders after their prison terms have ended has always been controversial.

Though the U.S. Supreme Court has repeatedly approved the practice, the idea of reincarcerating people in secure psychiatric hospitals, perhaps indefinitely, because someone has determined that they might commit a similar crime in the future seems unjust.

Obviously, it’s in everyone’s interest to prevent rapists, child molesters and other sexual offenders from preying on the public. But incarcerating people for acts that have not taken place appears to be a perversion of justice.

It is paramount, then, for state legislators and rights groups to take a hard, detailed look at the methods used to determine who gets put in civil confinement.

The state Office of Mental Health makes recommendations to the state attorney general on whom to bring to court to be civilly confined. It uses a number of tools in making that recommendation, including some designed to determine a sex offender’s risk of committing another sex crime.

But at least one risk-assessment tool used, called Static-99, hasn’t always been accurate. The Static-99 score is the initial determiner of the path each case takes through the intense review process OMH has set up. Generally, the higher the score, the more likely an offender is supposedly a risk.

Until early 2009, guidelines for the tool were based on old studies of offenders released from prison during the 1970s and early 1980s. Those groups had higher rates of repeating sex crimes than more recent studies showed. That led OMH to recommend more people for civil confinement than it would if it used more modern assumptions, according to an OMH report released in February. When the guidelines were changed to reflect newer studies, the number of OMH referrals to the attorney general dropped.

The Supreme Court ruled that civil commitment must only be used for treatment, rather than punishment. Government does not have the authority to civilly commit a sex offender simply because he or she is dangerous and has committed multiple offenses. But if the Static-99 score is used to determine whether a person is a danger based on the likelihood of committing another sex crime, then is the whole process legally flawed?

Racial disparities among sex offenders who’ve been civilly confined are troubling, too. Black men who are old enough to be put in state prison make up just 5 percent of New York’s population. But they make up nearly 29 percent of sex offenders ordered civilly confined.

That certainly reflects disparities throughout the criminal justice system. But do any of the arcane methods OMH uses to pick who gets locked away play a role, too?

Protecting the public from sexual predators is vitally important. But if the law is carried out unjustly, all of us may be in danger. ..Source.. The Post-Standard Editorial Board