Punishment Without Crime: The Little Known Law that Keeps People Confined Even After They’ve Served Their Time


On New Year’s Eve, 1988, a 27-year-old Brooklyn man lay drunk in bed with his girlfriend. Sometime in the middle of the night he got up to go to the bathroom and, on his way back, went to the bunk bed where his girlfriend’s young daughters slept. The exact details of what followed vary by account, but there is no question that the man forced sexual acts on both girls, each of whom were under ten years old.

Weeks later, one of the daughters started to bleed, and the mother alerted authorities. The man pled guilty to sexual abuse, completed a two-year prison sentence, and was released back into the community in 1991.

Three years later, there was another girlfriend and another daughter. Some days, the man would offer to drive the girlfriend to work so that he could have undisturbed time at home with the daughter. He abused her repeatedly between 1994 and 1995. Once, the mother walked in to find her daughter naked from the waist down, and the man with her. Questions were asked but he explained them away—until he didn’t. The charade crumbled. The man (I’ll call him Angel) was charged and pled guilty to sodomy. He was given a ten-year sentence and scheduled for release in June 2007.

As the day approached, Angel grew excited; he had a daughter of his own he was especially eager to see. His behavior in prison had been good, and in preparation for release he had registered as a level three sex offender. But then, without warning, he was taken from prison, transferred directly to a secure facility hours upstate, and given no indication of when, or if, he might leave. Angel had committed no further crime, but his third trial had begun.

As Wayne Bodden, Angel’s eventual lawyer would say, Angel got a bad deal. On April 13, 2007, just two months before the end of his ten-year sentence, the New York Sex Offender Management and Treatment Act—Article 10 of the Mental Hygiene Law—was passed under Governor Eliot Spitzer. The law held that if the State’s Attorney General’s office decided to flag a convicted sex offender nearing the end of his sentence for being potentially still dangerous, he would be detained until he was given another trial, this time a civil procedure. If a jury agreed that the offender would likely commit another crime, a judge could confine him to a secure facility indefinitely, until a state-appointed psychiatrist deemed him safe.

Since the inception of Article 10, 437 decisions on civil commitment have been issued in New York. Of those, 276 have resulted in post-sentence confinements to one of two facilities, designated strictly for Article 10 commitments. Their combined capacity is 372. The cost to commit one person in New York annually, according to the Office of Mental Health (OMH), is about $175,000—$7,000 more than the cost to imprison one person over the same period. Of the 276 committed, 59 have been released under a program called the Strict and Intensive Supervision and Treatment (SIST) program, which can also be adjudicated in lieu of confinement for offenders who are assessed to be a lesser threat in their Article 10 trial.

Unwittingly, Angel had been flagged and co-opted into a system that didn’t exist when he pled guilty and took his sentence. He would remain in Central New York Psychiatric Center in Marcy, hours upstate, until his civil commitment trial began. When that date finally arrived at the State Supreme Court in Downtown Brooklyn, it was September 22, 2014: Seven years after his release from prison; seven additional years of confinement; seven years spent waiting for his day in court.

I learned about Angel’s case because I was a juror on his Article 10 trial. The morning of my summons, I sat in a large waiting room at 320 Jay Street, having come straight from a Greyhound bus that had left Montreal the night before. I was under-slept, still in my party clothes, and feeling weird and guilty about it, a fraud of a responsible person. But things became fundamentally weirder as I sat among a panel of potential jurors and learned some basic facts about why we were there: Angel was a pedophile; his victims had been young girls; he had pled guilty to his crimes and completed two criminal sentences; the second one finished in 2007; he had committed no further crime.

It dawned on me that something was up—this was not the normal course of events. Why were we here if Angel had served his time and done nothing wrong since?

Assistant Attorney General Donald Leo, who was prosecuting the case, explained more: It would be his job to prove to the jury with clear and convincing evidence, that Angel had a “mental abnormality,” which made it “seriously difficult” for him to control his behavior—basically, if Angel were released, he would molest more children. And if the jury agreed, the state would step in and continue to “manage his care.”

It sounded like a dystopian joke. “Manage his care” was such a cryptic phrase. An array of possibilities darted through my head: castration, drug courses, confinement. Beyond that, the second part of our task—determining the likelihood that he might do something wrong in the future because of his “abnormality”—felt even more uncomfortable. Wasn’t a jury’s job to ascertain the truth of the past? Not to predict the future?

Despite my doubts, which I voiced to the presiding judge, Wayne Ozzie, and both attorneys during voir dire, I was selected for the jury. As the trial progressed, every time we broke for lunch or left court for the day, Ozzie warned us not to communicate anything about the case to anyone or do any research about the law. I didn’t. But the moment the trial ended, he told us the opposite: Have at it, he said. So I did.

Al O’Connor is a lawyer at the New York State Defender’s Association who trains criminal defense lawyers on Article 10 processes. I told him I couldn’t believe it had been put on me to make a judgment about Angel’s mental health, or speak with authority about his future. “You feel like you were being misled on your moral obligation?” he asked. “Completely,” I said. “Yes,” he responded, “that’s by design.”

O’Connor pointed out that all the trappings of procedural protections surround Article 10: There’s a jury, judge, lawyers, and a burden of proof. Yet there are no well-defined criteria to help jurors determine what constitutes a mental abnormality. The term doesn’t exist in the Diagnostic and Statistical Manual of Mental Disorders. It was coined specifically for use in commitment cases for sex offenders so that it would encompass more common conditions, like personality disorders, which are notoriously easy to misdiagnose, and present in a large percentage of the prison population. Nonetheless, determining the presence of a mental abnormality is the bedrock of Article 10 law. If it’s not there, a person can’t be nominated for confinement.

In the end, said O’Connor, the process is set up to help jurors feel ok about making their best guess, despite the lack of guidelines. “It’s not you who makes these decisions [about the defendant’s fate], it’s the judge. That takes the moral equation out of it for jurors.”

Most lawyers I spoke with didn’t believe that a jury (or a judge, for that matter) has a place making mental health decisions about sex offenders. Yet by law, they have to.

I tracked down Wayne Bodden after the trial and asked him what he’d been looking for in our jury. (I reached out to Leo via email, too, who said he was “unable to comment in any manner.”) Bodden was frank. “I kept you after you asked questions,” he said. “Normally, I wouldn’t want an intelligent jury,” but, he reasoned, the nature of Angel’s crimes were so despicable that he wanted jurors who could look beyond Angel’s actions and consider the rightness or wrongness of his predicament. “In my opinion,” said Bodden, “you have to win [Article 10 cases] from the soul of unfairness and unconstitutionality.”

Across the country, twenty states and Washington DC have laws similar to Article 10, referred to broadly as civil commitment laws for sexually violent predators (SVP). According to John Monahan, a professor at the University of Virginia School of Law who specializes in risk assessment for sexual offenders, 4,249 people (only seven of whom are women) are currently confined under SVP laws, and the rate of release is paltry. Since Minnesota passed its SVP laws in 1995, 700 have been committed and one has been released.

Eric Janus is President and Dean of William and Mitchell Law School in Minneapolis, and an expert in SVP law. “How in the world can the government pick out a group of people and say, ‘We’re going to lock you up in advance in order to prevent you from committing crimes?’ The mere fact that a person has a personality disorder doesn’t have anything to do with whether it’s an appropriate category to use in selecting people for extraordinary treatment, or impair a person’s ability to control their behavior,” he said. “The norm is you commit a crime, you’re convicted, you’re put in prison. And this puts that on its head.”

Perhaps surprisingly, forced civil commitment in this country (and around the world) is not uncommon. Historically, it occurs when the threat a person poses to himself or society is determined to outweigh the preservation of civil liberties. People are regularly confined for contagious illness (e.g. the recent Ebola quarantines), but for centuries people with serious mental illness have been forcefully, per order of a judge, locked away. The legality of these cases hinges on the presence of a diagnosable, dangerous illness, and—above all—on the premise that the paramount purpose of the detention is to treat the patient.

In the deliberating room, we were having trouble. The first day ended in a fifty-fifty split. The second day, I was the first to switch sides. What had been my gut reaction—to bristle against the law’s unconstitutionality and Angel’s situation particularly—began to take back a seat to the judge’s directive: Focus only on the evidence presented in court, not on personal concerns about the law, or what could happen to Angel because of our decision.

As one of my fellow jurors, who experienced a similar internal shift, put it, “The trial has a momentum, kind of like a tide, and it sweeps you from the shores of your instincts and own thoughts. I think I got pretty far away from myself in making a decision.” I felt the same way. There was a weight and a seriousness in the courtroom, and in the deliberating room, that supplanted my original gut feeling with a stronger compulsion to perform my civic duty. It arose from the austere formalities of courtroom procedure, strict directives from the judge, and the obsequious deference with which the attorneys would address us. The person I was and the things I thought outside of court were forgotten in favor of adhering to my sole directive as Juror Number 10: Make a decision based on the empirical evidence in front of me—Angel’s journal entries, psychological assessments, and behavioral reports from confinement. It was exactly the moral shift that Al O’Connor had described, and fighting it felt wrong, like an act of insubordination.

From the get-go, we’d all agreed that Angel had a mental abnormality; he was a pedophile, after all. But the fundamental fissure stemmed from the question of control dysfunction. What evidence demonstrated clearly and convincingly that he would have “serious difficulty” controlling his behavior if released? In confinement, he’d displayed minor disregard for authority—he talked too long on the phone; once, when his daughter had visited, he’d given her a T-shirt, which was forbidden; he lipped off occasionally to guards. Also, he didn’t seem to be making much progress in therapy. But without a release date, why would he be motivated to make any? He was operating in a black hole. It all kept making me return to the main issue I couldn’t get around: Our evidence came from his time in confinement. How could we predict what he might do around children, when he hadn’t been around them for almost two decades?

On the witness stand he’d said he would always have an attraction to young girls. But that seemed like a responsible and impressive admission, a step toward getting better. He’d also said he’d felt confident in his ability to turn to to his relapse prevention techniques developed in therapy, even though it remained unclear if he’d ever been offered a consistent therapy program.

A decision seemed impossible. Was there something—anything—that could convince each of us that Angel would hurt another child if released?

It was the same juror who spoke of the trial’s tide who found it: In one of Angel’s handwritten journal entries from 2004—a time when he was incarcerated and had more incentive to be honest about his crimes, not believing what he wrote could ever be used against him in another trial—he described his repeated sexual assault on his girlfriend’s daughter. The juror read: “My desire for pleasure was stronger than my conviction that it was wrong to hurt someone I loved, forever.”

The room fell silent.

Two days after our trial ended, Margo Kaplan, an Assistant Professor at Rutgers Law School, published an opinion piece in the New York Times: “Pedophilia: A Disorder, Not a Crime.” Kaplan argues that rather than confinement, people with pedophilia and other sexual disorders need treatment. In an ideal world, we would have a mental health system that encouraged people to get help before they commit a crime—but we don’t. Plus, the social stigma of self-identifying as a pervert would be devastating and, Kaplan writes, “When it comes to public policies that might help people with pedophilia to come forward and seek treatment before they offend, the law omits pedophilia from protection.”

As for a mental health system that provides adequate treatment for sex offenders in confinement, that’s not happening either. A 1997 Supreme Court ruling on an appeal to Kansas’ sexually violent predators civil commitment law found that failing to provide treatment was legal because the law’s primary purpose was not punitive. According to Kaplan, and many other lawyers I spoke to, treatment is neither guaranteed by law, nor its priority. “The treatment isn’t treatment; they just converted a jail,” Bodden said, speaking of the confinement facility where Angel had been held. “It’s god-awful in terms of what it’s designed for,” referring to Article 10’s stated intention to confine and treat.

According to an official from the Office of Mental Health, “Treatment plans are devised by the individual’s treatment team in collaboration with the individual and in accordance with evidence based treatment needs. An internal oversight process ensures treatment is being implemented appropriately.”

But every lawyer I talked to refuted OMH’s statement. And if what we’d been told about Angel’s treatment during the trial had been any indication that OMH was not consistently implementing individual treatment plans, I was inclined to agree with them. Al O’Connor told me, “The treatment is just the constitutional gloss that we put on what is, in effect, preventative detention of people that we’re scared of.”

All that said, neither Kaplan nor Janus are against preventative detention on principal. But identifying those people, they argue, should require more reflection and a higher barrier to commitment than those currently in place. Only California’s SVP laws require that the burden of proof for civil commitment goes beyond a reasonable doubt. Everywhere else, as in New York, the jury must find the evidence is “clear and convincing.“ There is, however, some hope that more deference for sex offenders’ civil liberties will be considered in future trials for Article 10.
On October 28, 2014, the highest court in New York overturned the finding of a mental abnormality in the Matter of State of New York v. Donald DD. The court decided that no evidence of an independent abnormality beyond an antisocial personality disorder was found in the defendant. Namely, the decision reads, the presence of a standard personality disorder does not mean a sex offender is likely to recommit a crime. If the State Supreme Court heeds this ruling, there will be a higher burden of proof required to bring future Article 10 cases to court, and the law as it stands would be executed more justly. But the possibility that the law itself will go away is low. “It’s very difficult to reform a law that makes it appear that you are not tough on crime,” says Kaplan. “There is no legislation that will repeal it without a huge media outcry, or evidence that [the laws] are causing more problems than solving.”

The main threat, if these laws are left unchecked, says Eric Janus, is that there would be no foreseeable limit to the extent, or areas of law, or groups of people, who could have their civil liberties taken away in the name of safety and freedom.

In the meantime, says Janus, “Let’s examine approaches earlier in the course of the sexual violence cycle that could prevent more harm, rather than try to figure out who the few most dangerous people are, and locking them up at great expense.”

Late on Friday afternoon, after four days of deliberation, we filed into the courtroom one last time. Bodden and Leo’s eyes paused on each of us as we entered. The court clerk stood up from behind his desk clutching a piece of paper and walked to the center of the courtroom to address Juror Number One.

Reading through his spectacles, he said, “Does the defendant have a congenital or acquired condition, disease, or disorder, that affects his emotional, cognitive, or volitional capacity in a manner that predisposes him to the commission of conduct constituting a sex offense?”

Rising, Juror Number One—normally an outspoken personality who had us doubled over in laughter during lunch—responded with a somber, “Yes.”

The clerk continued: Does the defendant’s condition result in “his having serious difficulty in controlling his behavior?”

“Yes,” she repeated.

I forced myself to look at Angel. He sat and stared straight ahead. His expression was empty, inscrutable. Bodden looked down, in the direction of his client. Just audibly I heard him utter, “I’m sorry.”

Angel’s case is not yet wrapped. His sentencing, which will determine whether or not he is sent to intensive community supervision or confinement, is set for February 26. Judge Ozzie left the case. It will be up to a new judge to review it and then determine Angel’s fate. “He doesn’t have to be detained, but I expect he will be,” said Bodden. “I don’t know that we’ll have success.”

Bodden emphasized that the lengthy delay in Angel’s case was largely due to Angel’s unwillingness to cooperate—with his first lawyer, with risk assessment metrics and psychological testing, and with the psychiatrist who first reviewed his mental health for the trial. “Some of it was gesturing, but what wasn’t gesturing was the backhandedness of the treatment he received,” said Bodden.

Though this was Bodden’s first Article 10 trial, he said our jury had deliberated far longer than either side expected.

“Leo was worried. This was not a case he was supposed to lose,” said Bodden. “But there’s a lot more pressure on me, because I got the guy who’s not going home.” •


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