E-Honora: GRAWA’s Electronic Newsletter

CLE On Civil Rights / Civil Commitment
	GRAWA CLE ORGANIZERS -- Amy Schwartz and Elaine Cole were on hand to distribute box lunches after organizing the CLE program in conjunction with the University of Buffalo School of Law and University of Rochester Medical Center.

Legislative Committee Chair Amy Schwartz working with CLE Committee Chair Elaine Cole, lined up several speakers for an interesting round table discussion about legislation pending in New York that is modeled after a Kansas statute and similar statutes in many other states. Held at the Hall of Justice, the “free” 2-hour CLE program drew about 40 attendees and engaged several local “experts” in a dynamic discussion.

Legislative Background

In December 1996 when the U.S. Supreme Court heard arguments in Henricks v. Kansas, 521 U.S. 346, Dr. J. Richard Ciccone was present as the justices questioned counsel about the civil commitment procedures the State of Kansas had adopted to grapple with the problem of repeat sex offenders.

On November 28, 2005, Dr. Ciccone, professor of psychiatry and director of the Psychiatry and Law Program at the University of Rochester Medical Center, shared his first-hand experience with the Hendricks case as he spoke to approximately 40 CLE attendees who came to learn more about the background related to legislative bills pending in New York . Henricks laid the groundwork for several states to enact legislation modeled after the Kansas Sexually Violent Predator Act.

Having participated in the preparation of an amicus brief in the U.S. appeal of Hendricks, Dr. Ciccone emphathized with the need to protect society from sexually violent predators, but clearly opposed the “medicalization” of the issue.

History of ‘Hendricks'

In 1994, the Kansas legislature enacted the Sexually Violent Predator Act, establishing procedures for civil commitment of persons who, due to a “mental abnormality” or a “personality disorder,” were likely to engaged in “predatory acts of sexual violence.” The state invoked the Act for the first time to commit Leroy Hendricks, as he was being released from prison, following a history of sexually molesting children and being convicted and paroled time and again for nearly 40 years. When Hendricks challenged his commitment on due process, ex post factor, and double jeopardy grounds, the Kansas Supreme Court invalidated the statute on “substantive” due process grounds.

The U.S. Supreme Court granted certiorari and upheld the statute in a 5-4 decision, writing that a state may confine someone: (a) who presents a serious danger to society; and (b) whose danger results from a vilitional impairment recognized by the psychiatric profession. Several of the justices agreed that the Kansas statute was too heavily weighted toward punishment rather than treatment.

The court ruled that the ex post facto and double jeopardy challenges were not properly applicable to the civil statute being challenged.

Pending New York Legislation

There are currently three bills pending in Congress that would give New York State similar authority to that expressed in the Kansas Sexually Violent Predator Act. One version of the bill has passed the NY Senate for seven years in a row, but has never made it out of the Assembly. Two versions of the bill pending in the NY Assembly may be no closer to passing than in prior years, but with an impending change due in the state governorship, there is some noise that a civil commitment solution could be pushed forward.

Seminar Presenters

Reiterating the felonious history of Hendricks, Monroe County District Attorney Michael Green asked, “What do we do with someone like Hendricks -- where their history and their own admissions indicate they will commit sexual assaults again? Is civil commitment the way to go or are their better solutions?”

Noting that a civil commitment bill may not be an answer to the problems posed, Green admitted that he wouldn't want Hendricks living next door to him.

Director of Mental Hygiene Legal Services (MHLS) for the Fourth Appellate Department, Emmett Creahan spoke about the role of his office in protecting and advocating the rights of people who reside in facilities licensed to provide services for mental illness. Although the MHLS was originally established to act as the guardian of due process rights for the institutionalized mentally disabled, its role was expanded to ensure the continued constitutional validity and overall legality of the system of admission, retention, and care and treatment of individuals pursuant to the Mental Hygiene Law.

Creahan noted his awareness of proposed civil commitment legislation as much as ten years ago, acknowledging the difficulty of distinguishing between mental illness and mental abnormalities.

“In Kansas v. Crane , 534 US 407, the court narrowed the definition of mental abnormality and subsequent cases in the federal circuit courts have attempted to further refine the parameters,” noted Creahan.

As a private practitioner, Gary Muldoon shared his concerns about warehousing people in a civil system that may not match their criminal propensities. Listing the different categories of sexual offenses and the trend toward imposing fixed sentences -- which may make punishment unjustly severe in some instances and not severe enough in others -- he warned about the slippery slope associated with the concept of civil commitment.