Civil commitment: N.Y.'s program to keep sex offenders off the streets is the most expensive in the nation

1-15-2011 New York:

In New York, the end of a criminal sentence for a sex offender doesn't mean he's going free.

In 2007, state lawmakers took steps to protect the public from sexual predators. That year they approved a civil commitment program designed to route dangerous sex offenders whose sentences are ending into treatment in secure state psychiatric facilities.

However, little thought was given to the likelihood that space for treatment could one day become an expensive dilemma.

That day has come.

Only in its fourth year, civil commitment is already coping with cost and space strains. Since many offenders who are locked away are unlikely to be released for years, if ever, the costs will continue to escalate.
The program is far costlier than imprisoning criminals: a civilly detained offender costs four times the spending for an inmate jailed in a state prison.

New York's average price tag to treat sex offenders in secured facilities -- about $175,000 a person -- makes it the costliest program of its kind in the country, slightly more than in California. Twenty states have civil commitment programs, but they vary in approach. Texas, for instance, only uses outpatient treatment.

Before the program was even 2 years old, OMH officials warned in a report that "the population growth (of committed offenders) will continue unabated for many years and at costs that may well be unsustainable in an uncertain fiscal climate."

By 2012, the state Office of Mental Health, which treats the offenders, will likely need more space for civil commitment, according to spokeswoman Jill Daniels.

Already, it is transforming office space and storage areas into bedrooms at a Marcy psychiatric center -- near Utica -- to make room for the increasing number of sex offenders.

Although Republican lawmakers pushed unsuccessfully for civil commitment for years, the program finally cleared legislative hurdles in 2007 with the vigorous support of then-Gov. Eliot Spitzer, a Democrat. Lawmakers hailed civil commitment as a way to keep New Yorkers safe from the worst sex offenders.

Civil commitment operates largely outside of public view and scrutiny. The cases are civil -- not criminal -- and courtrooms can be closed and records sealed because of confidential questions about an offender's mental stability.

Only the case of Nushawn Williams has garnered statewide attention. The state is trying to commit Williams, a drug-dealing drifter who was imprisoned for 12 years for having sex with women while knowing he had HIV, the virus that causes AIDS. He is being detained while the civil commitment case continues; the state can hold offenders through the commitment court proceedings.

Although only a small percentage of the pool of convicted sex offenders ends up civilly institutionalized in New York, the state still has one of the highest rates of civil confinement in the country, records show.

For New York lawmakers, this will create a demand for tens of millions of tax dollars in coming years at the same time that officials face dire budgetary constraints.

"We are facing capacity issues, census pressures," said Richard Miraglia, the OMH associate commissioner of forensic services.

The courtroom fights over civil commitment have their own costs, often outstripping the costs of criminal cases.

Civil commitment hearings and trials can become a duel between psychiatric experts warring over whether the offender has a "mental abnormality" that makes him unable to control criminal impulses -- a legal requirement for confinement.

A 'sacred cow'?

In New York, a sex offender slated for release from prison or parole is evaluated to determine whether he suffers from a dangerous mental defect.

During the year ending Oct. 31, only 4.3 percent of the offenders eligible for civil commitment -- those who had committed sexually motivated crimes -- were ultimately deemed by the state to meet the legal requirements.

A trial determines whether the offender suffers from the mental ailment. If the accused is found to have the mental abnormality -- there is no verdict of guilty or not guilty at the civil trial -- a state Supreme Court justice then decides whether the offender is too dangerous to release. The criminal can either be confined in a state treatment facility or released to an intensive parole program.

Already, civil commitment has the earmarks of a political sacred cow.

Some lawmakers who once questioned the wisdom of civil commitment found themselves under attack during the recent election cycle. Attorney General-elect Eric Schneiderman, for one, voted against the 2007 bill for civil commitment because of concerns he had about the offenders' civil rights.

During the 2010 election, he reversed field, saying the program had adequately resolved his fears.

"I don't know that there was a whole lot of thought (about the costs of the civil commitment program)," said Al O'Connor, a staff lawyer and civil commitment expert with the New York State Defenders Association. "Probably there were people who voted for this and knew better."

Some politicians likely feared that opposition to civil commitment could be used to paint them as soft on crime and an ally to sex offenders.

"It's a potent political weapon during an election," O'Connor said.

A Gannett review of dozens of civil commitment cases across New York shows that, as state officials contend, many of those targeted for the program committed serious and sometimes heinous sex-related crimes -- offenses such as those committed by Williams, the HIV-infected man who once bragged he had sex with more than 200 women, and the case of a Rochester man, Frederick Peters, who used a gloved hand to sexually assault prostitutes in a manner too savage to describe.

The U.S. Supreme Court has consistently upheld civil commitment, allowing states to push sex offenders into locked-down treatment programs after their prison terms come to an end. Rarely, as the experience in other states demonstrates, are the committed offenders deemed safe for release.

Minnesota, for instance, has had civil commitment since 1994 and has released only one of the nearly 600 men who have been institutionalized.

Ongoing debate

New York lawmakers provided extra funding for OMH when civil commitment started in 2007, but with little foresight given to the escalating costs.

Other states provided plenty of evidence for New York to recognize the budgetary strains of civil commitment programs. Minnesota's program has tripled in cost over the past six years and a $62 million facility that opened in Virginia in 2008 is nearing capacity.

In New York, funding was based on an assumption that most offenders would be routed into the cheaper parole-supervised program and not institutionalized. Instead, more than two of every three offenders found to have a mental disorder have been sent into the state facilities instead of the parole option.

In 2007, even some anti-violence activists challenged whether the money for civil commitment could be better spent bolstering treatment for sex offenders in prison.

One state-sponsored committee of experts and advocates recommended many approaches to curb sex crimes that did not include civil commitment, recalled Anne Liske, who was then executive director of the New York State Coalition Against Sexual Assault.

"There's a better use of money" to address sexual violence, Liske said.
However, those who'd seen the results of violence firsthand were powerful advocates.

Connie Russo-Carriero, for instance, was murdered in White Plains in 2005 by Phillip Grant, a homeless sex offender who was released after serving his sentence of 23 years for multiple rapes. Russo-Carriero's family became strong advocates for civil commitment, questioning how a man suffering from dangerous mental illnesses could be released from prison with no oversight.
"Maybe (Grant) would have been better off civilly committed," said Russo-Carriero's cousin, Vincent Scala. "The man who did this to Connie was almost a walking, talking poster child for it."

The facilities

New York operates two facilities where the detained sex offenders are treated -- the Central New York Psychiatric Center in Marcy and the St. Lawrence Psychiatric Center in Ogdensburg, near the Canadian border. Both centers are now at capacity -- 150 beds at Central and 80 at St. Lawrence.

An unused building at Marcy could be converted into space for 150 beds, but that transformation would come with costs that have not yet been determined.

We would look to that as a full-fledged treatment facility," OMH's Miraglia said. Still, that measure would handle only about two years worth of new commitments.

OMH is talking with corrections officials about the conversion of some unused prison space, but those discussions are only in preliminary phases.

At the current rate of growth -- about 70 newly confined offenders annually -- treatment costs alone will grow by about $12 million a year.

OMH has already trimmed its costs by reducing staff at facilities; originally the average cost per offender was $225,000 a year.

What's clear is that solutions to the space crunch, regardless of the cost, will be needed soon.

Lawmakers will find answers because civil commitment is a vital part of the state's public safety measures, said state Sen. Michael Nozzolio, R-Fayette, Seneca County. Senate Republicans "supported it aggressively," he said. "We believed it was an alternative that needed to be pursued."

Assemblyman Joseph Lentol, D-Brooklyn, supported civil commitment but admits that the costs are a concern.

"There is a real problem and 30 years from now we may be doing what we did with Rockefeller (drug laws) and repealing civil confinement because it's not working," Lentol said. "But we haven't reached that point yet." ..Source.. Gary Craig