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
January 15, 2011
Civil commitment: N.Y.'s program to keep sex offenders off the streets is the most expensive in the nation
December 29, 2010
State's sex offender program questioned
12-29-2010 New York:
The sex offender — identified in court papers only as "Douglas S." — was clearly ready for release from a state psychiatric facility, according to a judge.
He had accepted the treatment and excelled in the programs. In fact, he was a model example that even pedophile sex offenders considered dangerous by the state — those civilly committed in a secured facility — can benefit from treatment to a point where they can be released to community supervision.
And Douglas S. even went a step further. He requested and received chemical therapy — chemical castration in essence — that experts said made the likelihood that he would commit a new sex crime less than 5 percent.
Despite all of that, state Office of Mental Health officials refused to release Douglas S. In fact, they would not even advance him to the fourth and final phase of treatment at the Central New York Psychiatric Center in Marcy.
In a ruling released last week, a Syracuse-based state Supreme Court justice, James Tormey, blasted OMH officials for their handling of the case of Douglas S. The justice questioned whether OMH officials have set such tough barriers to release that offenders have little motivation to cooperate with treatment.
"There needs to be a light at the end of the tunnel for each of these patients who cooperate, accept, acknowledge and show their willingness to work with the system to correct their behaviors as such so they are no longer a substantial threat to society," Tormey wrote in a ruling last Thursday.
Tormey ordered that Douglas S. be released from confinement and put in the parole-based part of the civil commitment program.
If such challenges to treatment mount, the legal foundation of the civil commitment program could be at risk.
Under the law, sex offenders near the end of their prison or parole term are evaluated by state mental health experts.
Those who experts decide suffer from a mental defect that makes them among the riskiest to release can become eligible for civil commitment.
Tormey's ruling is likely to resonate more than most, because he has extensive experience with civil commitment cases in New York.
Civil commitment cases can be heard in the jurisdiction where offenders are jailed or detained awaiting a resolution of the civil proceeding. Tormey has the Central New York Psychiatric Center and several prisons in his district. He has handled close to 100 civil commitment cases.
Douglas S. is not alone: The state's civil commitment program is almost four years old, and no one has completed the four-phased treatment regimen so far. None have even entered the fourth phase.
OMH officials say they are working with a difficult population — dangerous sex offenders with a psychological predisposition to commit new crimes — and treatment will be prolonged for many.
Some may never reach a point where they're safe for release.
Experience from other states — New York was the 20th to begin civil commitment — supports that conclusion. In Minnesota, where civil commitment began in 1994, only one of nearly 600 offenders has been discharged.
The apparent inability of treatment to render many offenders safe for release proves that states are locking away the most dangerous sex offenders, said Roxanne Lieb, associate director for the Washington State Institute for Public Policy, which has studied civil commitment programs.
"It stands to reason that if you confine a lot of people and you were letting them go in a year or six months, you would have to ask yourself if you've picked the right population," she said.
OMH officials had no comment and said they were reviewing Tormey's decision.
OMH also declined to allow the Democrat and Chronicle to tour the civil commitment facilities, citing the confidentiality of treatment for offenders suffering from mental ailments.
Assessing risk
For decades mental health professionals have struggled to find ways to identify the worst sex offenders. Some experts say that psychological tests have been fine-tuned enough to help them distinguish the riskiest. "Now we have a pretty good grip on who the most dangerous are," said Carl Christensen, a counselor at the Linden Oaks Sexual Abuse Treatment Services offices in Penfield.
"And we have a pretty good grip on who the least dangerous are."
Studies show that sex offenders in New York who are not routed into civil confinement or a parole-supervised civil management program have low re-arrest rates: Less than 3 percent are arrested for a sex crime within two years of release.
This proves, OMH officials say, that they are ferreting out the worst sex offenders for civil confinement.
OMH this year added several psychologists because of the growing number of offenders who must be evaluated for possible commitment, said Richard Miraglia, the OMH associate commissioner of forensics sciences.
In last week's ruling, Tormey praised the treatment providers at the Central New York Psychiatric Center, where Douglas S. was confined, for "their outstanding job in treating these individuals."
But, testimony showed, a panel of OMH psychiatric experts must recommend offenders for the fourth phase and the panel did not recommend the advancement for Douglas S. Two of the panel members had not worked with him, Tormey wrote.
Testimony in hearings showed that the supposed fourth and final treatment phase is ill-defined "with no real criteria for entry or completion," Tormey wrote.
In the ruling, he noted that the state may have spent close to $1 million to date for the treatment of Douglas S. yet seemed unwilling to release him, despite ample evidence the offender was ready.
Best use of resources?
Better sex offender treatment in prisons could reduce the number of offenders the state decides need civil commitment, some treatment providers say; still, it could be years before officials know whether that outcome is likely.
In concert with the 2007 passage of civil commitment, state officials say, they increased the availability of sex offender treatment within the prisons. Program slots for treatment went from 715 to 1,200, said Department of Correctional Services spokeswoman Linda Foglia. The annual cost is about $9.5 million — largely salary costs — at 18 different institutions.
Still, those costs are dwarfed by the spending for civilly committed offenders.
Now, however, the state is running out of room for civilly detained sex offenders, and the costs continue to mushroom each year.
Those costs will only worsen if the goal, as Tormey contended, isn't the eventual release of some offenders.
"It is quite evident to this Court throughout these (civil commitment) processes for over 3.5 years, that the Office of Mental Health is not completing its medical treatment obligation to (Douglas S.) or others by denying any efforts of the individuals to be released," Tormey wrote. ..Source.. Gary Craig, Staff writer
Civil confinement of sex offenders costs state $175,000 a piece
12-29-2010 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 long-term costs or 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 state Office of Mental Health, or OMH, is now transforming office space and storage areas into bedrooms at a Marcy psychiatric center to make room for the increasing number of sex offenders.
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 OMH, which treats the offenders, will likely need more space for civil commitment, according to spokeswoman Jill Daniels.
Although Republican lawmakers pushed unsuccessfully for civil commitment for years, the program finally cleared its 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.
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.
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 Democrat and Chronicle 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 one of the nearly 600 men who have been institutionalized.
Ongoing debate
New York lawmakers did provide extra funding for OMH when civil commitment started in 2007 but with little foresight on 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 near Rome and the St. Lawrence Psychiatric Center in Ogdensburg. 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
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
December 31, 2009
Tougher law is sought on sex offenders
12-31-2009 New York:
Dec. 31--Efforts to eliminate "weak parts" in the state's civil confinement law that have allowed paroled sex offenders, including 100-year-old Theodore A. Sypnier, to remain free were unveiled Wednesday by state lawmakers.
A proposed amendment to the 2007 legislation would automatically require repeat sex offenders to receive a psychiatric examination before they are considered for release from prison, according to Assemblyman Sam Hoyt, D-Buffalo, who addressed a news conference in downtown Buffalo.
I find it interesting that, this lawmaker, wants a psych exam, when it is well known that sex offenders are not considered mentally ill! So, the purpose of a psych exam is just another hoop for offenders to jump through? Or, isn't it more likely that, since it is well known that no one will put their name on a psych exam, for fear that the offender will reoffend, that, such will stop the offender from being released?
In addition, the state's Office of Mental Health would no longer have exclusive authority on petitioning the state attorney general's office to pursue court action to confine an individual for as long as life, if the examiners believe it is necessary.
The revisions were prompted after Hoyt and fellow lawmakers read Buffalo News reports indicating Sypnier planned to establish relationships with several of his great-grandchildren he never met.
Other newspaper stories quoted Sypnier's grown daughter and a teenage girl describing how he sexually attacked them as children. They spoke on the condition that it might help in making a case to halt Sypnier's release.
Hoyt said the amendment, if approved in the upcoming legislative session that starts in about two weeks, would not be retroactive to include Sypnier.
Sypnier, who has three sex offense convictions involving children, was released Nov. 6 from prison after serving 15 months on a parole violation for failure to attend classes that provide counseling to sex offenders.
He told The News that he saw no need to attend the classes and wanted to hire a lawyer to fight the remainder of his parole, which concludes in May 2012.
"Civil Confinement was enacted to protect the public from sex offenders who are unable to control their behaviors," Hoyt said. "If Ted Sypnier does not qualify for civil confinement, then we have to re-examine this law and make some changes."
Citing statistics that indicate individuals with sex offense convictions are being released back into society who shouldn't be, Hoyt said that in the first year of the legislation, 1,603 cases were referred to the Office of Mental Health with only 173 of those individuals undergoing psychiatric evaluations. Of that number, 139 were referred to the state attorney general for court proceedings in an attempt to confine them or place them on intensive parole -- an alternative under the confinement law.
Sypnier was never evaluated by a psychiatric examiner, according to information received by the lawmakers.
At present, there are believed to be about 200 sex offenders who have finished their prison terms and are confined at secure state psychiatric hospitals because they have mental abnormalities that make it likely they will reoffend.
State Sen. William T. Stachowski represents the part of Buffalo's East Side where Sypnier currently lives in a halfway house.
"Mr. Sypnier's release into society clearly indicates that our civil confinement system needs to be fine-tuned at least when we consider the potential for a repeat offender to commit these horrendous acts time and again," said Stachowski, D-Lake View.
Also on hand was Assemblywoman Francine DelMonte, D-Niagara Falls. ..Source.. The Buffalo News
August 5, 2009
NY- DELMONTE: The story on civil confinement law
8-5-2009 New York:
I would like to clarify any confusion and/or misconception regarding our state’s civil confinement law. Since New York state instituted its first civil confinement law in 2007 to keep dangerous sex offenders off the streets after completing their prison sentences, 56 convicted offenders have been committed to secure treatment facilities, according to information compiled in 2008 by the state Office of Mental Health. Another 36 offenders were court-ordered to the state Division of Parole and placed under Strict and Intensive Supervision and Treatment (SIST).
I voted for the legislation creating civil confinement in New York state as did my colleagues representing parts of Niagara County including Sen. Antoine Thompson, Sen. George Maziarz and Assemblymembers Schimminger, Hawley, and Hayes. The legislation passed with overwhelming bipartisan support—127 to 19 in the Assembly and 53 to 8 in the Senate.
State OMH estimates up to 144 dangerous sex offenders per year will be eligible for civil confinement or SIST oversight. It did not take long after the law came into effect before one such offender from Niagara County found himself, at the direction of Supreme Court Justice Richard Kloch Sr., ordered into Strict and Intensive Supervision and Treatment and placed at the Midtown Inn in Niagara Falls.
The placement of James McKinney to the Midtown Inn ignited a firestorm of protest that has been simmering for years from parents, neighbors and business owners nearby the Midtown who object to the concentration of sex offenders and parolees housed at the Niagara Street location and its close proximity to Niagara Street school. State law prohibits sex offenders from being within 1,000 feet of a school but a patchwork of local laws, including one in the city of Niagara Falls, raises the prohibited distance to 1,500 feet.
A meeting I hosted in July with Division of Parole officials and parent representatives, Niagara Street Business Association representatives, Block Club representatives, Niagara County DSS Commissioner Anthony Restaino, area police and fire officials and local elected and school district officials offered a constructive dialogue of Parole’s responsibilities supervising offenders and public discontent with the situation at the Midtown highlighted with McKinney’s placement there. Three weeks after the meeting, Parole moved McKinney to a new location in North Tonawanda and is working to find housing for other sex offender parolees.
New York’s civil confinement law is a serious, thoughtful measure that can go a long way toward keeping dangerous sex offenders off our streets. The law gives judges the authority to determine whether certain “dangerous” sex offenders should be civilly confined in a secure state treatment facility or subject to intense supervision. I will continue to be a proponent of strict enforcement of our state’s civil confinement law as a means of protecting children from dangerous sex offenders. ..Source.. by Francine DelMonte, Member of Assembly
May 31, 2009
NY- Sex offender law questioned in wake of shooting
5-31-2009 New York:
Miller says he will seek changes
ALBANY — At least two of New York’s nine most dangerous sex offenders freed under a two-year old civil confinement law have faced arrest on sex charges again, including one who this week shot a police officer then killed himself.
State lawmakers said they’ll study the law, designed to restrict and monitor some sex offenders after they leave prison, to see if it’s too easy for some offenders to be returned to the streets.
The latest was Ken-Tweal Catts, who was freed from civil confinement by a jury in September, about a year after his release from prison. Catts was picked up Wednesday and was being charged with rape when he grabbed a Dutchess County detective’s pistol and fired a shot that grazed the officer’s head. He then holed up for three hours in the county building before shooting himself.
The first sex offender freed in the jury stage of the 2007 state law, Douglas Junco of Washington County, was accused of rape and kidnapping a woman in Georgia a year ago. That was eight months after a jury found there wasn’t enough evidence of a mental abnormality, as required under the law, to confine him or order him to be strictly supervised in the community.
“The question is, what does the jury really know?” said Assemblyman Joel Miller, a Dutchess County Republican. “Judges normally do that and it’s only when we play this game when people claim mental illness that we fool the jury. This isn’t supposed to be a game. People with competence should make the decisions, not turn it over to lay people.”
The Republican said he will seek changes in the Democrat-controlled chamber to improve the sex offender management law because of the shooting.
“Frankly, I don’t like any part of the current system,” said Miller, noting that it provides a false sense of security. “I think we created a charade that misleads the public.”
Confined in mental health facilities
The state now confines 81 sex offenders in mental health facilities. They can petition a court for release annually.
The next highest level of “civil management” under the law is to require “strict and intensive supervision” in the community. The state has put 65 offenders in that category so far. Of them, 29 violated the conditions of their release and 10 were charged with sex-related violations or new offenses. Of those, five did not involve physical contact, according to state records.
“It’s a new law and a new experience and we are constantly monitoring and evaluating it,” said John Caher, spokesman for the state Division of Criminal Justice Services. “I don’t believe there are any concrete proposals on the table at the moment to effect any major changes.”
There was no immediate comment from the Democratic majorities in the Senate and Assembly, or Democratic Gov. David Paterson.
“We have big concerns,” said Sen. Dale Volker of Erie County who was part of then-Republican majority in the Senate that supported the 2007 law. “The reason we passed the civil confinement law is because there are some people you need to keep in confinement. We’ll look into this.”
The law was aimed at a void in the criminal justice system: Once sex offenders — who often repeat their crimes especially without rehabilitation — completed their prison terms and parole, there was little way to monitor or help them. The 2007 law sought to rehabilitate, rather than punish, the sex offenders.
The system creates a series of checks and reviews by medical and judicial officials.
Confinement rejected in many cases
Since it was effective in April 2007, the state prison system and Parole Division has referred 3,252 sex offenders. The state Office of Mental Health rejected 2,691 cases as not warranting supervision or confinement beyond their jail sentences. The other steps in the process, including psychiatric evaluations and judicial reviews, which can eliminate cases from consideration for further confinement, further winnowed the group. That left only the nine who were confined and 65 on strict and intensive supervision in a community. Many cases are pending the jury stage, which is at the end of the process.
“There is no hole dark or deep enough for these sick and twisted predators,” said Assemblyman Greg Ball, a Republican whose district includes Dutchess County. He said the most serious offenders must be confined permanently.
Catts was convicted in 2004 of felony sexual abuse in a case involving a 17-year-old. He had spent more than 500 days in jail before that, and was released twice from prison and returned for parole violations, according to state prison records.
In prison, he logged 27 disciplinary incidents, including fighting, harassment, smoking and an unnamed sex offense, according to corrections records. He was released in 2007.
Junco had served nearly 15 years in prison for an attempted first-degree rape conviction in 1993 in Albany. ..Source.. by PoughkeepsieJournal.com
December 21, 2008
NY- Sex offender still in confinement after prison term ends
If ever there was a case to show the improper use of civil commitment proceedings, this is it. Note, after the first civil commitment hearing they said he was not to be civilly committed, obviously they heard everything presented at the second hearing. Then, after a MINOR parole violation -use of computer to find a job, and yes, contact his family- the parole officer sends him back to prison, then the commitment hearing all over using the exact same facts as the first hearing, excepting the parole violation. This case is a miscarriage of justice.
12-21-2008 New York:
‘Risk factors’ keeping sex offender off streets
Daniel Gierszewski served 17 years in prison after sexually abusing four young girls nearly two decades ago.
The Buffalo man is out of prison. But he is not free. Gierszewski, 63, is confined to a psychiatric institution in Central New York.
That’s because state prosecutors successfully argued that girls in the region are not safe with Gierszewski on the streets.
Gierszewski has become the first convicted sex offender in Western New York caught in the net of a civil confinement law passed last year in Albany. And several more are set to follow.
The new law allows the state to declare that a sex offender who has completed his sentence but suffers from a mental abnormality makes him likely to commit more sex crimes.
If state prosecutors can prove that to a jury, a judge has the authority to send the defendant to a psychiatric institution for as long as the rest of his life. Or the judge may choose to place him on strict parole that threatens confinement if dozens of conditions aren’t met.
“Mr. Gierszewski has a mind full of risk factors,” State Assistant Attorney General Thomas J. Schoellkopf argued during Gierszewski’s confinement trial in Niagara County last month. “These are horrible acts, not consensual. . . . We must stop this from happening again.”
A 12-member jury unanimously agreed, so now a judge has the authority to order Gierszewski committed to a psychiatric institution or relased on parole with a long string of severe restrictions. A decision is expected this month.
“It used to be good enough to say, ‘He has paid his debt to society,’ ” said attorney John R. Nuchereno, who defended Gierszewski last month. “What was thought to be a fair punishment was imposed, . . . [but] the doors of the prison Dan was kept in were kept shut.”
Gierszewski is now in the Central New York Psychiatric Center in Marcy, Oneida County.
If State Supreme Court Justice Richard C. Kloch Sr. decides that Gierszewski needs to be committed, that’s likely where he will stay. The state has only two psychiatric facilities for sex offenders; the other is in Ogdensburg.
Gierszewski is among 59 convicted sex offenders who have gone into the state’s civil confinement institutions so far.
He was flagged for the program shortly before his scheduled release from Elmira Correctional Facility on Feb. 21.
In June 2007, the Office of Mental Health had reviewed his case and decided that he was not a candidate for civil confinement, but the state agency changed its mind after Gierszewski was let out of prison on parole Sept. 17, 2007.
Two months later, he violated the terms of parole by using a public computer in the Buffalo & Erie County Central Library to look for job listings. While he was there, he replied to an e-mail from his sister with one of his own, wishing her a happy birthday. Parole officers had ordered him not to use the Internet.
By last Dec. 14, he was back in prison to finish what he expected to be the last three months of his original sentence. Instead, the state attorney general’s office, which handles civil confinement cases, had other things in mind for him.
In court last month in Lockport, two assistant attorneys general and two psychologists hired by the state asserted that Gierszewski has a mental abnormality that makes him likely to commit more sex crimes.
After two days of testimony from the doctors, including one chosen by the defense, and two hours on the stand for Gierszewski himself, the jury took only 90 minutes to agree with the state’s position.
Here’s some of what jurors and Kloch heard:
Nearly 16 years ago, Gierszewski slipped his hand onto the thigh of a 10-year-old girl in the candy aisle of the old Ames department store in North Tonawanda. He then ran from the store with security guards in pursuit. Police pulled his vehicle over a short time later and found a loaded handgun inside. In June 1994, a jury convicted him of sexual abuse and weapons possession, and he was sentenced to 14 years in prison.
When asked about his encounter with the 10-year-old during his civil confinement trial, Gierszewski said, “When my hand made contact with her, I knew where I was, and I decided to get what I could get.”
It wasn’t his first sexual contact with underage girls.
In May 1980, while he was working as a bartender at a Bailey Avenue tavern, he was charged with raping and sodomizing a 15-year-old girl. He pleaded guilty to misdemeanors in that case and was placed on probation.
Another sex crime followed in 1983, while Gierszewski was cruising the streets of Buffalo looking for young prostitutes, he offered a ride to two girls, ages 13 and 16. When they took him up on it, he told them he had a gun, tied them up and sexually assaulted them. He pleaded guilty to sexual abuse for that and served three years in state prison.
The civil confinement law requires that all sex offenders whose prison or parole terms are running out will have their files reviewed by a board in the Office of Mental Health. If the board concludes that the person has a mental abnormality as defined in the new law, it can turn the case over to the state attorney general’s office for action.
Since then-Gov. Eliot L. Spitzer signed the law last year, 59 New York sex offenders have been committed to psychiatric institutions. An additional 40 have been placed under intensive parole supervision.
“The State Legislature said, ‘For this crime, you do this amount of time.’ It also said you could do more time if they think you might offend again,” said David G. Jay, a Buffalo civil liberties attorney who has just been assigned to defend James A. McKinney, a Niagara County sex offender, at an upcoming civil confinement trial.
“I suppose they could do it for any crime,” Jay said. But since sex offenders were singled out, Jay argues, “that’s what makes it unconstitutional.”
The U. S. Supreme Court does not agree. Although the New York law’s constitutionality has not been tested in court, the Supreme Court, in a 5-4 decision, upheld the concept of civil confinement in a Kansas case it decided in 1997.
The high court ruled that civil confinement is not punishment and thus doesn’t violate a sex offender’s right to due process.
What does Gierszewski think about the civil confinement law?
On the witness stand, he said, “It scares me.” ..News Source.. by Thomas J. Prohaska, NEWS NIAGARA BUREAU
