1-27-2012 New York:
NEW YORK, Jan 26 (Reuters) -
A New York law allowing authorities to detain convicted sex offenders post-release while they await determination on whether they are dangerous enough to warrant civil confinement is valid, a state appeals court ruled Thursday.
The Appellate Division, First Department, said a trial judge overstepped her bounds when she held that the law was unconstitutional on its face.
"The issue of facial unconstitutionality was not before the court, the respondent did not argue it, and in any such argument, it is the challenger's burden to so argue and establish unconstitutionality beyond a reasonable doubt," Justice James Catterson wrote for a unanimous five-judge panel.
The ruling reverses a decision by Bronx Supreme Court Justice Colleen Duffy.
The Sex Offender Management and Treatment Act, or SOMTA, permits the state to petition a court to place certain sex offenders under either civil confinement in a facility or a heavily restricted form of parole, where they are under frequent monitoring and barred from activities such as using a computer or driving without permission.
The act is applied to offenders that "have mental abnormalities that predispose them to engage in repeated sex offenses," according to the law, which was enacted in 2007. When an offender is nearing the end of a prison term, the attorney general's office can conduct a mental health review and ask a court for a probable cause hearing to determine if the defendant requires civil management.
If probable cause is found, the offender is held pending a jury trial. If the jury finds that the offender warrants civil management, the judge must choose between confinement and restrictive parole.
PROBABLE CAUSE SUFFICIENT
In the current case, a man referred to as "Enrique" in the ruling pleaded guilty in 2001 to two counts of sexually abusing a 7-year-old and an 11-year-old girl. He served nearly 10 years, both for those convictions and for violating his first parole.
As his sentence was nearing completion last year , the attorney general's office petitioned for him to be placed under civil management.
After probable cause was found, Enrique was held pending his trial. Reports from state agencies recommended the restrictive parole, rather than confinement in a facility.
Duffy ruled in August that the provision allowing Enrique to be held violated due process and was unconstitutional, since his eventual parole conditions would be less restrictive than detention. She ordered Enrique released pending trial.
"The court purported to find facial unconstitutionality based on its observation that the provision mandates pretrial detention 'without a delineation between a dangerous sex offender requiring confinement and a sex offender requiring strict and intensive supervision,'" Catterson wrote.
The First Department ruled that finding probable cause was enough to show the offender's "dangerousness," which in turn provides legal justification for pretrial detention. Even those offenders, like Enrique, who are more likely to end up living in the community under restrictions rather than in a facility can still be considered "dangerous," the court found.
"As a danger to society, all Article 10 sex offenders, therefore, come within the scope of those statutes upheld by the United States Supreme Court that authorize commitment or detention, even pretrial detention, without mandating consideration of a lesser restrictive alternative," the court wrote. Article 10 forms the basis for SOMTA.
Enrique's lawyer, Sadie Zea Ishee of the Mental Hygiene Legal Service, which is assigned to all sex offender civil management cases, did not return a call for comment. The attorney general's office also did not respond to a request for comment.
The case is New York v. Enrique T., New York State Supreme Court, Appellate Division, First Department, No. 6570.
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