Civil commitment faces rocky legal terrain

12-29-2010 New York:

In 1988, Mustafa Rashid broke into a home in the Bronx, raped one woman, sodomized another, and stabbed a third person who tried to break up the home invasion. In 2000, less than a year after being released on parole, Rashid robbed three homes over four days. In a Queens robbery, he threatened a woman with an ice pick, took the woman’s 8-month-old daughter from her arms and allegedly fondled the child, then caressed the woman and masturbated at the home. He left after she gave him cash, court records say.

Last month, New York’s highest court, the Court of Appeals, decided Rashid could not be civilly committed as a dangerous sex offender.

The judges did not say that Rashid wasn’t dangerous. Nor did they rule that he didn’t suffer from the mental disorder required to commit a sex offender to a secure psychiatric facility in New York. Instead, the Court of Appeals based its decision on its interpretation of New York’s civil commitment statutes, which were enacted by the Legislature in 2007. And they weren’t alone: a regional appellate court had reached the same decision earlier with Rashid’s case, a ruling affirmed by the Court of Appeals with its Nov. 23 decision.

Questions raised

Offenders can only be civilly committed if they’re leaving prison or parole after conviction of a sexually motivated crime. Rashid, appellate judges ruled, was jailed on robbery and weapons charges that were not, under the law, sexually driven.

Rashid had been one of nearly 400 criminals who state mental health officials determined were so much of a risk that they should be confined in a psychiatric institution for sex offenders or placed in a strict community supervision program. But the case and its legal contortions reveal how the state’s civil commitment program will likely face numerous legal challenges.

In New York, more cases are wending their way through regional appellate divisions, and the Court of Appeals has only sounded off on a few cases thus far. Until rulings from the Court of Appeals help lower courts sort out the legal nuances of civil commitment, the program will continue to be the target of many legal challenges.

“I suspect it’s going to take a while for these cases to work their way through the (legal) system,” said local lawyer Mark Davison, who has handled several appeals of civil commitment decisions. “I think it’s going to take a while because the statute is so new.”

For years, civil libertarians have blasted civil commitment laws nationally, which typically lock away sex offenders in psychiatric facilities after their prison terms have ended. But the U.S. Supreme Court has consistently found that the programs are constitutional, as long as there is solid evidence that the offender has a mental defect making him likely to commit more crimes.

In New York, there have been questions by lawmakers and even judges about whether civil commitment is an apt use of courtroom resources. Each year, the demands will grow as more offenders are institutionalized.

Civilly committed offenders are evaluated each year, and, based on opinions from mental health experts, a judge has to determine annually whether the criminal should remain detained.

“It appears that both (political) parties wanted to pass a civil commitment statute in the worst way,” Onondaga County Court Judge Joseph Fahey wrote in a 2008 legal article. “And they did.”

In a recent interview, Fahey was not as tough on civil commitment. “I would say that it seems to be working reasonably well and has survived any legal challenges to the statute itself,” said Fahey, who has handled some civil commitment cases as an acting state Supreme Court justice.

But the challenges to the law are sure to mount in coming years.

Some defense lawyers who handle civil commitment cases are also questioning — though informally — whether offenders who were confined in the early months of the program received adequate representation from their attorneys.

Prompting those questions is the number of early cases in which offenders consented to confinement. State records show, for instance, that 32 sex offenders agreed to civil commitment in an institution — a possible life-long confinement under the law — in the first year of the program. That’s four times the number who consented during the past year and 45 percent of the total cases in which a criminal agreed to institutionalization, state records show.

Ripple effects

The case of rapist Rashid, now 54 and a free man, has already had ripple effects.

Rashid was on parole in 2008 when the state tried to civilly commit him as a dangerous sex offender. At a civil commitment hearing, a state psychologist alleged that Rashid had significant psychopathic traits and often used drugs when free to do so, leaving him unlikely to maintain “independent impulse control” over his sexual desires.

Lawyers for Rashid argued, however, that he was not eligible for civil commitment. To be a candidate for civil commitment, a criminal has to have committed one of a number of sexually motivated crimes. Rashid’s attorneys maintained that he’d been released on the sex crimes and was actually paroled on an ineligible crime when the state sought to commit him.

Appellate judges agreed. They also noted that the Attorney General’s Office filed the petition to commit Rashid a day after his parole supervision ended. The Attorney General’s Office answered that the process formally started with an earlier notice to Rashid of the state’s plans to try to institutionalize him.

John Nuchereno, a Buffalo lawyer representing notorious sex offender Nushawn Williams, said he’ll use the November Court of Appeals ruling with Rashid to push for dismissal of the case against Williams. Williams is detained for a civil commitment decision after serving 12 years for having sex with women while knowing he had HIV. His criminal case spawned nationwide attention and prompted HIV notification laws.

One Rochester case has also been affected by the Rashid ruling.

Authorities alleged that Terry McFadden, 49, was a sexual predator. In the early 1990s he ran a Rochester clothing store, called “The Jiggy Shop,” and hired young women as salespeople.

“He used his position as their employer to seduce most of the victims for his own sexual gratification,” authorities alleged in a court record.

McFadden was charged with rape after police alleged he sexually assaulted a 16-year-old whom he’d given crack cocaine. A 15-year-old girl alleged that he fondled her against her wishes, records show.

He pleaded guilty to a rape count in 1999 and was sentenced to three to six years. He was paroled in 2003, then arrested for promoting prostitution the next year.

In June 2008, state authorities tried to declare him a predator deserving civil commitment. The rape conviction made him eligible for civil confinement, the Attorney General’s Office said.

Lawyers for McFadden answered that he was instead jailed for promotion of prostitution in the third degree, which is not on the list of eligible commitment offenses.

In April, state Supreme Court Justice Thomas Van Strydonck decided that he could not declare McFadden a candidate for civil commitment, as much as he wanted to do so.

“The court, while bound to follow Rashid, disagrees with its results here,” Van Strydonck wrote in April.

Van Strydonck’s ruling was based on the earlier regional appellate ruling with Rashid, a decision affirmed by the Court of Appeals with its ruling last month.

Though ineligible for civil commitment, Terry McFadden is not a free man. He is now imprisoned on a drug charge, and likely to be released next year. ..Source.. Gary Craig