Circuit upholds preliminary challenge to sex offender law

The sex offender laws have been challenged on constitutional grounds ever since the mid-1990's, when states began passing their own Megan's Law. New York has a law entitled "Sex Offender Management and Treatment Act" which contains provisions regulating sex offenders who require civil commitment or supervision. Mental Hygiene Legal Services challenged certain procedures under this law, and obtained a preliminary injunction against their enforcement. The Court of Appeals affirmed the injunction.

The case is Mental Hygiene Legal Services v. Paterson, decided on March 4 in a summary order. MHLS challenged two provisions. The first permits the pre-trial detention of a "sex offender requiring civil management." The other provision says that the law covers a person charged with, but not convicted of, a sex offense because of his mental capacity to stand trial.

The district court granted the injunction on the first provision after noting that "unjustified confinement to a mental institution is a 'massive curtailment of liberty' and also that being coerced into accepting a designation of 'mentally abnormal sex offender' is also highly stigmatic." This means that if the trial court thinks the law is constitutionally vulnerable, the plaintiffs can get relief now as opposed to waiting for trial, which can be more than year down the road. As the Court of Appeals summarizes the case, the problem with the first provision is that it authorizes "the pre-trial detention of a 'sex offender requirement civil management' without an individualized finding that the person is sufficiently dangerous to warrant confinement and that lesser conditions of supervision will not suffice to protect the public."

In its opinion, 2007 WL 4115936 (SDNY), the district court observed that "upon a finding of probable cause to believe that the [offender] may have a mental abnormality as defined by the statute, a person in the [plaintiff's] situation must be automatically detained pending trial. Such detention is potentially catastrophic. Not only will the [offender] lose his liberty, but he will likely lose his job and his house, and default on loans. He will thus, by mandatory operation of the statute, be deprived of more liberty before he is adjudicated in need of treatment, based on a mere showing of probable cause to believe treatment is required, than New York seeks to impose after he is shown by clear and convincing evidence to need treatment. This is perverse, and at oral argument the State was unable to give any rational explanation of how this furthers any legitimate government interest." Rather than detain the offender on probable case, the district court held, there has to be an individualized finding that the offender is dangerous enough to warrant confinement and that no other solution will suffice.

The Second Circuit upheld the district court's second injunction in the case, which addresses post-conviction confinement. Some offenders are found to have lacked the mental state sufficient to find them guilty, either because they had a "mental disease or defect" or were mentally incapacitated in some other way. Under the law, the state can confine the offender if it finds through clear and convincing evidence that the offender did in fact engage in the conduct.
This provision may be unconstitutional, warranting the preliminary injunction, because the constitution requires a finding beyond a reasonable doubt that the offender engaged in the conduct. "Clear and convincing evidence" and "beyond a reasonable doubt" may sound like hair-splitting, but these distinctions are significant because criminal convictions require the latter finding. While this law provides civil, not criminal, remedies for individuals who are mentally ill and dangerous, remedies under this law "are predicated on criminal conduct. The statute applies only to criminals or to individuals who would be criminals if they had been sane when they committed the acts which constituted the crime and had been competent to stand trial." Since the sex offender commitment law requires proof beyond a reasonable doubt, the district court properly issued the preliminary injunction.