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"MENTAL ABNORMALITY" WILL GET YOU COMMITTED

In State of N.Y. ex rel. Harkavy v. Consilvio ,* the New York State Court of Appeals ordered hearings to determine whether convicted sex offenders should be committed to secure psychiatric hospitals upon release from prison.

In 2006, the Court of Appeals decided a related appeal. In that case, Harkavy I , the Court concluded that convicted sex offenders had been improperly committed to psychiatric facilities after hearings conducted pursuant to Mental Hygiene Law Article 9. The state's highest court was of the opinion that the procedural protections of Corrections Law § 402 were more appropriate.

In this more recent case, Harkavy II , a different group of sex offenders had received hearings under the same procedures found inappropriate in Harkavy I . Since that earlier appeal, however, the New York State Legislature had passed Article 10 of the Mental Hygiene Law, which was designed to address the civil commitment of sex offenders upon completion of their prison terms.

The new law provides a review procedure for inmates found by Office of Mental Health (OMH) doctors to have a predisposition to commit sex offenses and who have difficulty controlling their behavior. After reviewing the cases referred by the OMH , the Attorney General may file a "sex offender civil management petition" in Supreme or County Court. The offender is then given a "probable cause" hearing and a jury trial to determine if the offender suffers from a "mental abnormality."

If the jury finds the offender suffers from a "mental abnormality," the court must then decide if the offender is a "dangerous sex offender requiring confinement," who must be placed in a secure OMH hospital, or a "sex offender requiring strict and intensive supervision," who must be released for outpatient treatment.

Although the law was passed after these petitioners had been transferred to psychiatric facilities, the Legislature drafted the statute so that it applied to sex offenders hospitalized after September 1, 2005, pursuant to either Article 9 of the Mental Hygiene Law or Section 402 of the Correction Law. 

So, after all that, the Court of Appeals concluded that the case needed to be sent back to Supreme Court for hearings pursuant to Article 10 of the Mental Hygiene Law.

Maddening, no?

For a copy of the Court of Appeals's most recent decision, please use this link: State of N.Y. ex rel. Harkavy v. Consilvio

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* Both cases were brought by Stephen Harkavy, Deputy Director of Mental Hygiene Legal Services, on behalf of the two groups of sex offenders.

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