ALBANY — Just before he leaves office, Governor George Pataki has called a Dec. 13 special legislative session in which he wants to pass a bill that would commit some convicted sex offenders to mental health facilities after they have served their prison terms.

The governor is responding to last week’s unanimous decision by the Court of Appeals, which ruled that the current practice is inappropriate.
"We’ve got the new Rockefeller drug law coming up," said Father Peter Young, referring to the push for a civil commitment law. The priest founded programs, including one in Altamont, to help alcoholics and drug abusers.

The drug laws passed in the 1970’s during governor Nelson Rockefeller’s administration led to lengthy prison sentences for users and small-time dealers, effectively tying judges’ hands when it came to meting out punishment. The state prison population swelled from 12,500 to nearly five times that today.

Placing sex offenders in mental-health facilities is lauded as a public-safety measure by many politicians, but some mental health experts say otherwise.
"The trend is actually away from civil commitment," said Dr. Richard Hamill, president of the New York State Alliance of Offender Service Providers and director of The Capitol District Center for Sex Offender Management. Sixteen states and the District of Columbia have a civil-commitment law and two of them, Florida and Kansas, are looking at dismantling them. There are a variety of other programs for sex-offender management. "That’s what the research tells us is effective," he said.

Following orders from the governor's office, the state’s Department of Correctional Services and Office of Mental Health have been evaluating and civilly committing some convicts who had been set for release, using article 9 of the Mental Hygiene Law.

In September of last year, Pataki directed prison officials and state mental health employees to screen sex offenders who were nearing the end of their prison terms and commit those who qualified to a mental hospital. Of the 787 who have been examined, 112 are currently committed, according to the governor's office.
Last Tuesday, however, the state’s highest court, the Court of Appeals, ruled that the mental hygiene law does not apply to prison inmates; rather, it said, "Correction Law § 402 is the appropriate method for evaluating an inmate for post-release involuntary commitment to a mental facility." In effect, Correction Law can have the same outcome as the Mental Hygiene Law while also affording due process.

Correction Law requires that a prison superintendent petition a court for the mental examination of an inmate by two court-appointed physicians. If the prisoner is certified as mentally ill, the superintendent must then petition the court for a commitment order. When the notice of petition is served on the inmate, he may then request a hearing before being transferred to the psychiatric hospital, whereas Mental Hygiene Law foregoes court-appointed physicians in favor of state-employed doctors and provides no mechanism for notification to the prisoner nor for a pre-transfer hearing.
"There can be no doubt that the Governor and state officials have a very valid concern about the risks posed to the public by repeat sex offenders," says the Nov. 15, 2005 decision by the state’s Supreme Court, which was upheld by last week’s Court of Appeals ruling. "Nevertheless, that some of the petitioners may involuntarily have been placed in the mental-health system by executive fiat is a possibility which this court cannot ignore."

In her decision, Supreme Court Judge Jacqueline W. Silbermann discusses some of the specifics of the 12 anonymous sex offenders who brought the case: Three of the inmates got no psychiatric care in the time that they were in prison; two were diagnosed only with anti-social personality disorder, an illness that the American Psychiatric Association reports 75 percent of the prison population demonstrates; and one alleged that his evaluation consisted of a 10- to 15-minute phone interview.
"One of the examining physicians thereafter admitted that she did not want to send him to a psychiatric hospital, but that a directive had ‘come down from Albany,’" the decision says.

Two bills

Pataki’s bill, which he introduced to the Senate at the beginning of the year and hopes to pass in the Assembly on Dec. 13, lays out a procedure for civilly committing some sex offenders following the end of their prison terms.

Sponsored by Senator Dale Volker, a Republican from Depew, the bill passed the Senate on Jan. 17.
It specifies that each sex offender who is to leave state custody would be evaluated by a 15-member panel, to be established by the commissioner of correctional services and the commissioner of mental health. Should the panel find that a prisoner is a "sexually violent predator," the attorney general may file a petition to the court. At any time following the notification of a sex offender’s release, the attorney general may request that the offender submit to a psychiatric evaluation by an examiner chosen by the attorney general.
Among the major problems with the use of the Mental Hygiene Law cited by the Court of Appeals in its ruling was that the law "did not require that the psychiatric examinations underlying the patient’s admission be performed by court-appointed physicians."
The governor’s bill goes on to establish a hearing to be followed by a jury trial, should the hearing find probable cause. "If the jury, or the court if a jury is waived, determines that the respondent is a sexually violent predator, the respondent shall be committed to a secure treatment facility for care, treatment, and control until such time as he or she no longer is a sexually violent predator."
One to 3 percent of offenders are released from civil commitment programs, according to Hamill. "A lot of people who go in, don’t come out," he said.
"Based on experiences of other states, there’s been prolonged periods of treatment," said Jill Daniels when asked what the expected length of stay for a sex offender in a psychiatric hospital would be. Daniels is the acting director of public affairs for the state’s Office of Mental Health. She estimated that the annual cost per bed is $200,000, making the cost for just the 112 currently confined offenders $22.4 million.
"I’ve heard a lot of numbers," said J.R. Drexelius, counsel to Senator Volker. "It’s not going to be cheap." The earliest draft of a civil commitment bill was introduced in the Senate in 1996, according to Drexelius. "The cost to society would outweigh any cost in treating these individuals," said Drexelius, explaining Volker’s 10 years of support for the legislation.
As attorney general, Elliot Spitzer jointly proposed the program bill with Pataki, Drexelius said. "My sense would be that the new governor" will make a proposal," he said of the bill.
On Jan. 23, the Assembly passed its own civil-commitment bill, "a better and more responsible approach to the problem," according to Assemblyman Joseph Lentol, a Democrat from Brooklyn, who co-sponsored the bill. Allowing for life-time parole in some cases is one of the differences between the two bills.
"When you take the worst of the worst, percentage-wise, you’re only dealing with 1 percent of the sex-offender population," said Lentol, referring to the group that could be civilly committed. A treatment program for those who are civilly committed is detailed in the Assembly bill, requiring that "each individualized treatment plan shall include objective treatment goals designed to reduce the risk of re-offense." No such section is included in the Senate’s bill.
"Many people say, ‘Well, you can’t treat them.’ I don’t buy that," said Lentol. "They said the same thing about drug offenses and we’ve had a great deal of success in treating drug offenders."

Treatment

When Father Peter Young began working in Albany’s South End in the 1950’s, alcoholism was a crime. Martha Holesapple was arrested for public drunkenness 238 times, said Young. That’s what spurred him to action.
"We’re housing over 3,000 people a night, from Buffalo to Brooklyn, in every city in the state," said Young of his housing centers, which provide treatment and housing for people who are addicted to drugs or alcohol.
Stigma, said Young, is the similarity between the addicts that he helped in the 1950’s and ’60’s and the sex offenders of today. "The biggest thing I did was de-stigmatize," he said. "I de-stigmatized addiction." That’s what enabled people to get help, he said. When they no longer had to admit to being a criminal to attend Alcoholics Anonymous, people began to get help, said Young.

After years of work, Young won support for decriminalizing alcoholism and, since 1976, a person cannot be jailed for public intoxication, he said. At first, he said, politicians saw his priest’s collar and dismissed him as a do-gooder, but, when he presented the costs of incarcerating drunks, he got some attention.
"I proved it was cost effective," he said. "That’s how I got credibility."
For the treatment of sex offenders, Hamill suggests longer sentences in the state’s correctional facilities, at a cost of $34,000 a year — far less than the $200,000 in a mental-health facility — and lifetime probation or parole for some offenders when they are released, which carries an estimated cost of $15,000 a year for the most intensive supervision. "That’s a cost-effective strategy," he said.

Polygraph testing, to make sure that offenders are following the conditions of their parole, is part of the supervision that Hamill would like to see. In addition to supervision, treatment should be available, which cuts the rate of re-offense in half, he said.

In a group of offenders whose recidivism rate is 35 percent, Hamill said, as an example, treatment could bring it down to 17 percent. Another benefit of treatment, he said, is that counselors can often figure out when an offender might be likely to re-offend and stop him before he does.
"There are grossly inadequate resources – money and people – to do the monitoring, supervision, and treatment, that we know can prevent re-offense," said Robert Perry, legislative director for the New York Civil Liberties Union. Citing a Justice Department figure, Perry said that about 90 percent of young victims know their abuser — who would not be somebody listed on the Megan’s Law registry. "It’s the single greatest source of the problem and we choose to ignore it," he said.

The growing number of zoning laws that restrict where sex offenders can live is creating a new obstacle for monitoring since offenders might stop registering so that they won’t be barred from living in a certain area. Some housing restrictions, like the 1,000- foot buffer zones around schools are reasonable, said Hamill. Guilderland has 1,000 foot zones around some areas, including schools and day care centers, as detailed on a map that came from Albany County, said Guilderland Police First Sergeant William Ward.
"Eventually these sex offenders just go underground; they just drop off the radar," said Hamill, explaining that cities in California have had this problem as a result of zoning restrictions.

Congregate housing is one model that Hamill said has been successful. He cited the Snowden, an apartment building in Syracuse that a number of sex offenders call home. The division of parole and a private landlord began the project and it has been a success, Hamill said, because the offenders have a safe place to live and they’re easy to supervise.

Similar to the need for housing, offenders need jobs, said Hamill. Without income, many offenders can’t afford treatment and, without something to do, they have a lot of extra time on their hands. He called on private industry to step forward and acknowledge the benefit it provides the community to keep sex offenders employed rather than shunning them based on their offense.

Employment, housing, and treatment are the three legs that an addict or an offender need to stand on, said Young. Those three things make up the basis of his program for alcoholics and drug addicts and the same things apply to offenders, he said.
"We have to question the wisdom of using the mental-health industry as the repository for these folks when that costs a quarter of a million dollars and you can use the corrections system that runs $34,000 per year," said Hamill. Civil commitment programs provide a minimum of 32-and-a-half hours of treatment a week, he said, and this for a group that will likely not ever be released.
The low release rate, 1 to 3 percent, is "because there are very few people — judges, evaluators, even mental-health professionals — who champion these clients and say, ‘Oh yeah, I’ll put my name on a discharge document,’" said Hamill. If a judge denies a petition for release from an offender, there is no risk, he said, but if a judge decides to release an offender who then re-offends, that judge could face harsh criticism.

Recent statistics from other states show a low release rate. In 2005, in Florida, 486 sex offenders were committed, and six were released; in Illinois, 216 were committed and seven were released; in Massachusetts, 306 were committed and four were released; in New Jersey, 311 were committed and none were released.

Daniels said that, since New York began to commit offenders in September, four have been released; 112 remain.
"This is a difficult issue; it’s clearly an important public-safety issue," said Perry of sex- offender management. "It’s been treated as an election-year tactic and it’s a disgrace."
Recalling his earlier days as a prison chaplain, Young said a fixture was the group of men outside the prison walls, having served their time, awaiting their ride to the bus terminal. "They always said, ‘Hey Father, all dressed up and no place to go.’" They had no job and no place to live. "You know, they’ve completed their incarceration and now they’re in no man’s land," Young said.
Transient populations often end up in homeless shelters and low-cost hotels, said Hamill, adding that the fastest-growing segment among the homeless are single women with children. "So what we end up doing," he said, "is housing convicted sex offenders with single women with children."