Slow Start Seen in Effort to Detain Sex Criminals

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The New York Sun

More than eight months after New York instituted a process for locking up dangerous sexual criminals in mental institutions upon completion of their prison sentences, state courts have yet to involuntarily detain a single sex offender.

In one instance, the state this year released a repeated sex offender who had served a 6-year sentence for sexually abusing a 13-year-old girl. While the 34-year-old man, Tracy Galloway, was eligible to face a special trial that could have led to confinement, the state opted instead to place him under intensive parole.

Soon after his release, Galloway followed a woman onto a subway in Midtown Manhattan, lifted up her skirt, and groped her, according to a court filing. The Manhattan district attorney’s office has charged him with persistent sexual abuse.

In March, New York became the 20th state to approve a civil confinement law for sex offenders. After much heated debate and some resistance from Democratic lawmakers, Albany passed legislation months after the Court of Appeals struck down a practice started by Governor Pataki of using existing mental health law to commit violent sex offenders to psychiatric hospitals after their prison terms expire without seeking approval from judges.

Denounced by civil liberties groups, the new measure was something of a compromise between Senate Republicans, who pushed for a simpler system with a wider net, and Assembly Democrats, who demanded and won more safeguards and screening processes, including giving judges the option of releasing the most dangerous and mentally unstable offenders under a strict parole program.

The absence of involuntary confinements, which is in part due to a judicial bottleneck and problems related to adjusting to a new, complex process with many steps, could begin to pose a political liability for Senate Republicans, who vouched for the effectiveness of the system, and for Governor Spitzer, who has portrayed himself as a tough-on-crime leader.

Mr. Spitzer has hailed the law as one of the most important achievements of his administration, saying it was a “critical public safety initiative” that would help “keep the most dangerous sexual predators off our streets and place them in secure supervised environments away from our families.”

The majority leader of the Senate, Joseph Bruno, in a rare moment of agreement with the governor, said the legislation would “save lives, protect our children, and keep our communities safe by making sure dangerous predators are kept off the streets.”

Data provided by the Spitzer administration, however, shows that among the hundreds of sex offenders that committed offenses that potentially could lead to confinement and had completed their prison terms between April and October, the overwhelming majority has been released from custody.

A spokeswoman for the governor, Christine Pritchard, said the confinement law is “working as intended,” saying it “provides far greater protection to the public, while still providing the legal and procedural protections required by the courts.”

Of the 895 people reviewed by the Office of Mental Health, which conducts three separate screening processes including psychiatric exams, 86 were determined to pose enough of a danger to be eligible for confinement. Those cases were forwarded to the office of Attorney General Cuomo, along with a report by a psychiatric examiner.

All but one of the offenders were approved to stand trial after a probable cause hearing and were then detained at mental facilities while awaiting trial. Of the 85 remaining, seven consented to confinement.

Seventeen others essentially accepted a plea deal whereby they are placed under intensive parole, pending an investigation by the New York State Division of Parole. The attorney general’s office approved the plea arrangements with guidance from the Office of Mental Health and the parole division.

Of those 17, seven, including Galloway, have been released under an intensive supervision program that is supposed to include heightened surveillance, increased check-in requirements and interviews, and mental treatment. Two others violated their parole terms but were not believed to have committed sexual offenses.

The state has so far tried only two of the 61 offenders facing a trial by jury, which must establish by clear and convincing evidence that a “respondent” suffers from a mental abnormality. A unanimous verdict is also required.

One of the two men was released earlier this year after a jury found him ineligible for confinement. Last week, a jury in New York City ruled against the second man. The judge in the case has the option of locking him up in a mental facility or placing him under intensive supervision.

New York has also begun releasing many of the 124 sex offenders who were detained under an earlier system that was deemed illegal.

All of those people are subject to the new regulations and guidelines approved this year. Of the 70 cases that have been reviewed, the state has released 31 under a parole program similar to the one mandated by the civil confinement statute. Five others were kept in custody because they suffered other mental health problems.

An increasing number of states have enacted civil confinement laws intended to give the leeway that isn’t offered by the criminal justice system to protect residents from child molesters, rapists, and other sex offenders who represent a danger to society.

In 1997, the Supreme Court, in a 5–4 decision, ruled that states could detain sex offenders indefinitely in mental institutions after they have completed their prison terms.

Upholding a Kansas law, the court said sex offenders could be subject to involuntary commitment even if they are not found to suffer from a mental illness and that they are not protected by double jeopardy because the purpose of confinement isn’t to punish or to deter other sex offenders, but to provide treatment and protect the safety of others.


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