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August 10, 2011

"Bronx Judge Finds Constitutional Defect in Sex Offender Law"

The title of this post is the headline of this New York Law Journal article from earlier this week.  Here is how it begins:

A Bronx judge has ordered the state to release a potentially dangerous sex offender because of a constitutional defect in the Mental Health Law.  Supreme Court Justice Colleen Duffy held in State v. Enrique T., 2011 NY Slip Op 21269, that the law empowering New York to civilly manage sex offenders after they have completed a criminal sentence unconstitutionally requires confining them before there has been a trial to determine if civil confinement is even necessary.

Justice Duffy found that the law is rendered facially unconstitutional by the fact that it does not permit any less restrictive remedy.  Her decision follows a federal court decision in March by Southern District Judge Deborah A. Batts that came to the same conclusion.

The rulings center on the 2007 Sex Offender Management and Treatment Act, which permits the "civil management" of sex offenders who have completed their criminal sentence but remain a danger to society.  Under the law, if a court finds probable cause that a convicted sex offender remains a danger, the individual must be confined until a civil trial.

At trial, the attorney general has the burden of establishing by clear and convincing evidence that the offender suffers from a "mental abnormality" that predisposes him to commit sex crimes.  If the attorney general prevails, the court then determines if the individual requires involuntarily confinement in a mental institution, or if the offender can safely be managed through strict, intensive community supervision.

In the case at hand, Justice Duffy in May found probable cause that Enrique T. was in need of civil management and issued an interim order holding that he is a danger to the public. Her decision last week addresses whether Enrique T. can be confined until trial, as required by Mental Hygiene Law §10.06(k).

Relying primarily on the U.S. Supreme Court's ruling in United States v. Salerno, 481 U.S. 739 (1987) — and referencing Judge Batts' directly on point decision in Mental Hygiene Legal Service v. Cuomo, 07 Civ. 2935 — Justice Duffy held §10.06(k) facially unconstitutional.  Salerno held that pretrial detention is permissible under the Fifth and Fourteenth amendments only when the public safety interest would not be satisfied with less restrictive conditions.

August 10, 2011 at 10:25 PM | Permalink

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http://safeandwell.wordpress.com/
nonces are everywhere these days

Posted by: mike | Oct 9, 2011 7:45:44 PM

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