Opinion
251233-2010.
Decided April 11, 2011.
Charles Hargreaves, Esq., Mental Hygiene Legal Service, Marvin Bernstein, Director, New York, New York.
Russell T. Seeman, Esq., Eric T. Schneiderman, Attorney General of the State of New York, Westchester Regional Office, White Plains, New York.
On July 19, 2010, the Attorney General of the State of New York ("Attorney General"), filed a petition contending that Respondent Robert V. ("Respondent") is a detained sex offender who has a mental abnormality, as that term is defined in Article 10 of the New York State Mental Hygiene Law ("MHL" or "Article 10"), § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.
On February 7, 2011, Respondent filed a motion to dismiss the petition contending that he was not convicted of any sex crime and that the provision in Article 10, Section 10.07(c) that would allow a jury to determine whether Respondent's robbery and attempted robbery convictions were "sexually motivated" is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. Respondent asserts that Section 10.07(c), the relevant provision of the statute, and its concomitant definitional paragraphs serve to "retroactively transform" a non-sex crime into a new "sexually motivated felony" and that it increases the punishment for the prior crime. Memorandum of Law In Support of Motion to Dismiss (hereinafter, "Mem. In Support"), p. 3-4.
See MHL § 10.03(f) which lists the felonies committed prior to the enactment of Article 10 that are predicates for an Article 10 inquiry; and § 10.03(p)(4) which defines a "sex offense" to include those listed felonies, if "sexually motivated."
Respondent's motion does not contain page numbers; the Court's reference to page numbers in Respondent's motion was determined by the sequence of the pages.
For all of the reasons set forth below, Respondent's motion to dismiss is denied.
I. PROCEDURAL BACKGROUND OF ACTION
On July 27, 1995, Respondent pled guilty to two counts of Robbery in the First Degree, PL 160.15(3), one count of Attempted Robbery in the First Degree, PL 110/160.15(3), and one count of Escape in the First Degree, PL 205.15, each charged out of four separate dockets. On September 15, 1995, Respondent was sentenced on those separate dockets to three indeterminate terms of incarceration in a New York State Correctional Facility from 8 to 16 years, and one indeterminate term of incarceration of 2 to 4 years, with all sentences to run concurrently.
Respondent, who, in July 2010 was incarcerated at Shawagunk Correctional Facility in Ulster County, had served almost 15 years of his concurrent sentences and was nearing the end of his term of imprisonment when the Attorney General filed the petition at issue on July 19, 2010.
The petition alleges that the attempted robbery and one of the first degree robbery crimes for which Defendant was convicted were sexually motivated and therefore Respondent is subject to the provisions of Article 10 of the Mental Hygiene Law. The Attorney General filed a petition seeking a determination that Respondent is a detained sex offender who has a mental abnormality such that he should be subject to Article 10 civil management.
A probable cause hearing was scheduled to be held before the Honorable Christopher E. Cahill, Justice of the Supreme Court, in Ulster County. On July 26, 2010, prior to the hearing, Justice Cahill granted Respondent's motion to change venue from Ulster County to Bronx County.
Thereafter, a probable cause hearing was held before the Honorable Wayne M. Ozzi, Justice of the Supreme Court, in Bronx County. On October 15, 2010, Justice Ozzi found that there was probable cause to believe that Respondent is a detained sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06(k).
Respondent now contends that the petition should be dismissed, alleging that the provisions of Article 10 that allow a jury to determine if his non-sex crimes were "sexually motivated" violates the Ex Post Facto Clause of the United States Constitution. Mem. in Support at p. 3.
II. THE STATUTORY BACKGROUND OF ARTICLE 10
In 2007, the New York State Legislature passed The Sex Offender Management and Treatment Act ("SOMTA"), which, among other things, includes Article 10 of the Mental Hygiene Law of New York State, with the stated goal of addressing the danger to society posed by recidivist sex offenders. MHL § 10.01(a). The act was signed into law by then-Governor Eliot Spitzer on March 14, 2007, and became effective April 13, 2007.
Determining that some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses, the Legislature enacted SOMTA which provides that a person who is determined to be a detained sex offender with a mental abnormality, as those terms are defined in § 10.03(g) and (i), would be subject to civil management after that person had served his or her criminal sentence. MHL § 10.01(b)-(g). Civil management may take the form of either civil confinement in a secure treatment facility or strict and intensive supervision. MHL §§ 10.01 (b), (c), (d) and 10.07(f).
Mental Abnormality is defined as a congenital or acquired condition, disease or disorder which affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and results in that person having serious difficulty in controlling such conduct. MHL § 10.03.
SOMTA provides that, within a specified time frame, either a Supreme or County Court judge shall hold a probable cause hearing to determine whether there is probable cause to believe that the respondent is a detained sex offender requiring civil management. MHL § 10.06(g)-(k).
If the court determines that such probable cause exists, that matter is held over for trial before a twelve person jury, or a judge if the respondent in that case waives a trial by jury. The petitioner (the State of New York through the office of the Attorney General) carries the burden of proving that the respondent in the matter is a detained sex offender who has a mental abnormality by clear and convincing evidence. MHL § 10.06(a) and (b).
Pursuant to SOMTA, in order to be subject to civil management as set forth in MHL § 10.01, et seq., the person must have been convicted of a sex offense, as defined in Article 10, which includes, among others, a "sexually motivated felony." MHL § 10.03(p).
Pursuant to Penal Law § 130.91, which was enacted as part of the SOMTA statute and applies to crimes committed on or after April 13, 2007, a sexually motivated felony is defined as certain designated felony offenses, such as assault, gang assault, burglary, or robbery, among others, if such crime is committed "for the purpose, in whole or substantial part, of . . . direct sexual gratification." PL § 130.91(1).
SOMTA also provides that certain persons who committed crimes before the enactment of SOMTA still may be subject to the civil management provisions of the statute.
For example, a person who was convicted of a sex offense, such as rape or incest, prior to the enactment of SOMTA, may be subject to the civil management provisions of SOMTA if a civil jury (pursuant to the procedures described above) finds such person to be a detained sex offender who suffers from a mental abnormality.
Other individuals who, prior to the enactment of SOMTA, were convicted of one or more certain designated felonies set forth in MHL § 10.03(f) that were not sex offenses prior to the enactment of SOMTA also may be subject to the civil management provisions of SOMTA if a civil jury, pursuant to the process described above, finds, by clear and convincing evidence, that such prior crime was "sexually motivated," and then, if so, whether such person "is a detained sex offender who suffers from a mental abnormality." MHL § 10.07(c) (referred to herein as "Section 10.07(c)").
III. LEGISLATIVE INTENT
New York is one of 18 other states and the District of Columbia and the federal government to have enacted civil confinement statutes such as SOMTA with the intent of addressing "a compelling need . . . to protect residents of this state from sex criminals whose recidivism is predictable and uncontrollable." See, e.g., MHL § 10.01 (a), (b), (c), (e) and (f); see also, Governor's Program Bill 2007 Memorandum, Bill Jacket, L. 2007, ch. 7, at 10.
The Legislature, in enacting SOMTA, noted that SOMTA establishes comprehensive reforms to enhance public safety by allowing the state to manage sex offenders upon the expiration of their criminal sentences through civil confinement or strict and intensive supervision. Governor's Program Bill 2007 Memorandum, Bill Jacket, L. 2007, ch. 7, at 5. The legislature noted that there is a small group of sex offenders, who, because of a mental abnormality, cannot control their sexually violent behavior. Accordingly, SOMTA was enacted to mandate treatment as well as confinement or strict and intensive supervision for sex offenders depending upon their level of risk. Id. at 10.
According to the legislative history of SOMTA, there is a high rate of recidivism among certain sex offenders and certain sex offenders suffer from a mental abnormality that prevents them from controlling their sexual offending behavior. Governor's Program Bill 2007 Memorandum and New York State Senate Introducer's Memorandum in Support, Bill Jacket, L. 2007, ch. 7, at 10, 19. Unfortunately, despite these legislative decrees, there is scant empirical evidence to support the bases asserted by the Legislature in enacting SOMTA.
With respect to the rate of recidivism of sex offenders, numerous studies have found that the recidivism rate for sex offenders in the United States is quite low. See Ewing, Patrick, Justice Perverted, Sex Offense Law, Psychology, and Public Policy, Oxford University Press, 2011, pp. 33-36. Indeed, sex offenders apparently re-offend at lower rates than non-sex offenders. U.S. Dep't of Justice, Office of Justice Programs, http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf, p. 8 (compared to non-sex offenders released from state prison, sex offenders had a lower overall re-arrest rate).
With respect to "mental abnormality" as that term is defined in Section 10.03(i), there is no such diagnosis in the mental health field; the term lacks any psychiatric validity. LaFond, John Q., Preventing Sexual Violence (2005), 133; see also Young v. Weston, 898 F. Supp. 744, 747 (1995) (term has neither clinically significant meaning nor recognized diagnostic use among treatment professionals) (citations omitted). Indeed, "mental abnormality" is a legal term, not a medical one, and appears to have been first coined by the Kansas Legislature when it enacted that state's civil commitment statute, one of the first such statutes enacted. Hendricks, 521 U.S. at 358-59; Lafond, Preventing Sexual Violence, at 133.
Finally, despite the proliferation of sex offender treatment programs in prison and in psychiatric facilities arising out of the enactment of SOMTA, there are serious questions as to whether such programs have any effectiveness whatsoever in preventing recidivism. See The New York State Psychiatric Association March 12, 2007 Letter, Bill Jacket, L. 2007, ch. 7 at 66; Ewing, Patrick, Justice Perverted, Sex Offense Law, Psychology, and Public Policy, at pp. 48-56.
As far back as 1977, the psychiatric community disavowed any ability to effectively treat sexual offenders. See Group for the Advancement of Psychiatry, Psychiatry and Sex Psychopath Legislation: the Thirties to the Eighties (1977): 843.
Notwithstanding the erroneous and unsupported foundations upon which the legislature premised SOMTA, in a 5-4 decision in 1997 in Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme Court deferred to these same legislative misconceptions in upholding the constitutionality of a comparable statutory scheme.
In Hendricks, the Court accepted the legislative determination underlying that state's statute that sex offenders recidivate at a rate greater than non-sex offenders. Notably, Justice Kennedy's concurring opinion, which joined the opinion of four other Justices supporting the constitutionality of the Kansas statute, but warned against using civil commitment for penal purposes, focused upon the importance of the statute's treatment scheme. 521 U.S. at 371-72. The Court determined that the treatment options available in the Kansas scheme are evidence of the non-punitive nature of the statute. Id. at 366-67.
See 521 U.S. at 351-52 (legislature's finding that "sexually violent predators' likelihood of engaging in repeated acts of predatory sexual violence is high" and "[a]s a result the Legislature found it necessary to establish" a civil management procedure).
The importance given by Justice Kennedy to treatment programs in upholding the constitutionality of the Kansas statute is notable in light of the dearth of evidence showing the effectiveness of any such programs with respect to recidivism. Hendricks, 521 U.S. at 371, concurring opinion ("If the object or purpose of the Kansas law had been to provide treatment but the treatment provisions were adopted as a sham or mere pretext, there would have been an indication of the forbidden purpose to punish."); see also, Justice Perverted, at pp. 48-56.
The Court also equated the Kansas statute's definition of "mental abnormality" with that of the mental illness standard required in the civil commitment context in upholding the constitutionality of the statute. Id. at 359.
Despite the weak bases on which the Kansas legislature, and, subsequently, the New York legislature, built its sex offender civil management statute, the Supreme Court has deferred to these legislative findings in upholding the constitutionality of its statutory scheme. Hendricks, 521 U.S. at 350-52.
As set forth further below, this Court is constrained to follow the precedent established by the Supreme Court. Hynes v. Tomei, 92 NY2d 613, 629 (1998) (state courts are bound under the Federal Constitution to follow controlling Supreme Court precedent), cert. denied, 527 U.S. 1015 (1999); People v. Cortes, 80 NY2d 201, 211 (1992) (trial court bound to follow existing precedent); Wilson v. C. Dorflinger Sons, 218 NY 84, 86 (1916)(courts' duty is to interpret statute without reference to whether its provisions are wise or unwise); People v. Billi, 90 Misc 2d 568, 570-72 (Sup. Ct, Kings Co. 1977) (courts cannot substitute their judgment for that of Legislature, and as long as federal and state constitutions are not violated, courts will not interfere with legislative acts; propriety, need, and wisdom of such acts are exclusively within legislative province).
IV. RELEVANT CASES AND PRECEDENT
The United States Supreme Court and the New York Court of Appeals have decided several cases that are relevant to the issues presented by Respondent in challenging the constitutionality of Section 10.07(c). In addition, Section 10.07(c), which applies to persons who committed certain crimes prior to the enactment of SOMTA, already has been the subject of constitutional analysis by both state and federal courts in New York.
A. Supreme Court Analysis of Ex Post Facto Challenges
In Addington v. Texas, 441 U.S. 418 (1979), the United States Supreme Court held that a civil commitment proceeding can in no sense be equated with a criminal proceeding. Id. at 430-33. There, the U.S. Supreme Court upheld the clear and convincing standard of proof required by the Texas statute in civil confinement proceedings for the mentally ill, finding that, unlike in a criminal commitment proceeding, the state's power in a civil commitment proceeding is not exercised in a punitive sense. 441 U.S. at 428. The Court noted that, historically, the standard of proof of beyond a reasonable doubt has been reserved for criminal cases and that the weighing of the interests of the state against those of the person(s) subject to the statute is different in a civil context than in a criminal context. Id.
In 1997, in Hendricks, the Supreme Court upheld a comparable Kansas civil commitment statute for sex offenders, explicitly rejecting the assertion that the statute violated the Ex Post Facto Clause of the U.S. Constitution. Id. at 370-71. There, the Court found that the Kansas sex offender civil commitment statute — which is similar to New York's statutory scheme — raised no ex post facto issues because the statute was civil in nature and imposed no retroactive punishment. 521 U.S. at 370-71.
Unlike New York's statute, the Kansas Sexually Violent Predator Act at issue before the Supreme Court in Hendricks did not provide for the designation of non sex offense felonies committed prior to the statute's enactment as sex offenses through a civil jury determination of the crime as "sexually motivated." See Hendricks, 521 U.S. at 352 (act applied only to those convicted of a sexually violent offense). It is this provision of the New York statutory scheme that Respondent contends violates the Ex Post Facto Clause. As set forth more fully in Section V, supra, this Court finds that it does not.
Six years after Hendricks, the Supreme Court, in Smith v. Doe, 538 U.S. 84, 97 (2003), articulated a two step analysis for examining a challenged statute on the grounds that it violates the Ex Post Facto Clause. Upholding the Alaska Sex Offender Registration Act against a challenge that it constituted an unconstitutional ex post facto law, the Court held that the first step is to ascertain whether the Legislature intended the statute to be civil, rather than penal, in nature. Smith, 538 U.S. at 97; see also Hendricks, 497 U.S. at 361. If the intent was to establish a criminal proceeding, the inquiry ends there, as the statute violates the Ex Post Facto Clause. Smith, 538 U.S. at 92 (if intent of legislature was to impose punishment, that ends inquiry because statute deemed to violate of Ex Post Facto Clause).
If the Court finds that the Legislature intended to establish a civil proceeding, the inquiry must continue. The next step requires the court to determine whether the statute is so punitive, either in purpose or in effect, as to negate the intended civil purpose. Smith, 538 U.S. at 92; see also, Hendricks, 521 U.S. at 361.
The inquiry also must continue if it is not conclusive as to whether the statute was intended to be civil or penal in nature. See Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).
In Smith, the Supreme Court held that, in this second step of the inquiry, a court should be guided by the seven factors which it had first outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963): (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only upon a finding of scienter; (4) whether its operation will promote traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Smith v. Doe, 538 U.S. at 97, citing Mendoza-Martinez, 372 U.S. at 168-69.
In Mendoza-Martinez, the Supreme Court articulated these seven factors in a case where there was inconclusive evidence of congressional intent as to the civil or penal nature of the statute at issue there. 372 U.S. at 168-169.
B. Recent Challenges to SOMTA
New York's SOMTA statute, at issue here, has recently been examined by both federal and New York courts. Indeed, earlier this year, the New York Court of Appeals in People v. Harnett, 2011 NY Slip. Op. 00744 (2011), held that a guilty plea to a sex offense is not automatically invalidated because the defendant was not warned that he may be subject to SOMTA. The Court noted that SOMTA is not penal in nature and is not designed to punish a past crime but, rather, is remedial in that it seeks to deter future sexual criminal behavior by the person who is subject to its strictures. 2011 NY Slip. Op. 00744 at *4.
With respect to the specific Article 10 provision at issue in this proceeding, Section 10.07(c), in 2010, in State of New York v. Farnsworth, the Fourth Department already analyzed the constitutionality of the provision with respect to the standard of proof required by Section 10.07(c) in determining whether a non sex offense committed prior to SOMTA's enactment was "sexually motivated," thus making the person who committed the crime subject to the provisions of SOMTA. 75 AD3d 14 (4th Dept.), app. dismissed, 15 NY3d 848 (2010). There, the Fourth Department held that the clear and convincing standard of proof as to whether a crime that was not a sex offense and was committed prior to SOMTA was sexually motivated meets constitutional due process under both state and federal law. 75 AD3d at 27-29.
In Farnsworth, the Fourth Department noted that the United States Supreme Court already had determined that a person may be civilly committed based on clear and convincing evidence of mental illness and dangerousness, without proof of any prior criminal conviction at all. 75 AD3d at 29, citing Addington, 441 U.S. at 430-33.
The Fourth Department rejected that respondent's challenge that the due process and equal protection guarantees provided by the New York State Constitution, Article I, §§ 11, 6, and the Constitution of the United States, Amendment XIV, required the standard of proof of beyond a reasonable doubt in the determination that a crime committed before SOMTA, not previously designated as a sex offense, was sexually motivated. 75 AD3d at 29.
The Fourth Department also found that the statute met constitutional muster under an equal protection of the laws' analysis. Id. at 30-31. Applying a strict scrutiny analysis, the court found that the statute, as it applies to persons convicted of designated felonies that were sexually motivated and were committed prior to the effective date of the statute, was narrowly tailored to serve a compelling state interest. Farnsworth, 75 AD3d at 31 (strict scrutiny analysis required because, although respondent did not belong to a suspect class, freedom from physical restraint is a fundamental right).
Even earlier, in 2007, the constitutionality of Section 10.07(c) was examined by the United States District Court for the Southern District of New York ("Southern District"), in Mental Hygiene Legal Service v. Spitzer, U.S. Dist. Lexis 85163 (S.D.NY 2007). In that case, the Southern District determined that this provision met constitutional muster for the purposes of that proceeding.
In MHLS v. Spitzer, the Southern District pointed to the United States Supreme Court decision in Addington v. U.S. in holding that, "the most fundamental reason for the clear and convincing standard [in this statute] is that, unlike criminal commitment, [i]n a civil commitment state power is not exercised in a punitive sense.'" 2007 U.S. Dist. Lexis 85163, *81, quoting Addington, 441 U.S. at 428 (clear and convincing standard upheld in civil commitment of mentally ill).
The Southern District cited additional reasons, also identified by the Addington court, for the appropriateness of the clear and convincing standard of proof, noting that the standard of proof of beyond a reasonable doubt historically had been reserved for criminal cases, and pointing out that the weighing of interests calculation is different in the civil commitment context than it is in the criminal context. 2007 U.S. Dist. Lexis 85163, *81, citing Addington, 441 U.S. at 428-29.
The Southern District emphasized that since civil commitment on a clear and convincing showing of mental illness and dangerousness, with no finding of criminality at all, is constitutional, then the real issue in an Article 10 proceeding is not whether a person can be detained, but whether such person can be detained pursuant to this sexual offender scheme. Id. at *82.
There, the Southern District denied a preliminary injunction seeking a stay of the implementation of Section 10.07(c), holding that the plaintiffs had not demonstrated a likelihood of success on the merits. 2007 U.S. Dist. Lexis 85163, at *96-97. The Southern District noted that the narrowness of the single issue presented — sexual motivation — would reduce the chance of an erroneous finding; the court also pointed out that most of the facts of the underlying crime already would have been proven beyond a reasonable doubt. Id. at *84-85.
V. ARTICLE 10, SECTION 10.07(C) DOES NOT
VIOLATE THE EX POST FACTO CLAUSE
The Ex Post Facto Clause of the Constitution of the United States provides, in relevant part, that "no ex post facto law shall be passed." U. S. Const. art. 1, § 9, clause 5. The United States Supreme Court has defined an ex post facto law as one which "punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crimes of any defense available according to law at the time when the act was committed . . ." Collins v. Youngblood, 497 U.S. 37, 42 (1990), quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925).
As set forth below, this Court finds that Section10.07(c), which provides that persons who committed felonies that were not sex offenses before SOMTA may be subject to the civil management provisions of SOMTA, does not violate the Ex Post Facto Clause.
A. The Strong Presumption of Constitutionality Given to SOMTA is not Overcome
The New York Legislature passed SOMTA on March 6, 2007. Such legislative enactments enjoy a strong presumption that they are constitutional. Farnsworth, 75 AD3d at 20; People v. Knox, 12 NY3d 60, 69 (2009). Indeed, a party challenging a statute has a large hurdle to surmount — the party must demonstrate that the statute is invalid beyond a reasonable doubt. Farnsworth, 75 A.D3d at 20; LaValle v. Hayden, 98 NY2d 155, 161 (2002). As set forth below, Respondent has failed to meet this burden.
As noted earlier, the law became effective April 13, 2007.
B. Section 10.07(c) is Constitutional Under the Ex Post Facto Two Prong Analysis
Section 10.07(c) of Article 10 meets the Supreme Court's two-step inquiry, set forth in Hendricks and Mendoza-Martinez, required to determine whether it is punitive in intent or effect.
With respect to the first step, as set forth more fully below, the Court finds that, with respect to the provisions at issue, the Legislature's intent was civil in nature. Smith v. Doe, 538 U.S. at 92; Hendricks, 497 U.S. at 361.
If the intent had been penal, the inquiry would have ended there, as the portion of the statute that retroactively designates a crime as sexually motivated would be deemed violative of the Ex Post Facto Clause. Smith, 538 U.S. at 92 (if intent of legislature was to impose punishment, that ends inquiry because statute deemed to violate Ex Post Facto Clause). Here, that is not the case.
Even though, as noted below, the Court finds that the Legislature's intent was to establish a statute civil in nature, the inquiry does not end there. The Court must also determine, even if the intent was civil, whether the statute is so punitive, either in purpose or in effect, as to negate the State's intent that it be a civil proceeding. Hendricks, 521 U.S. at 361, Smith, 538 U.S. at 92. Only the "clearest proof" will be sufficient to overcome the presumption that a statute by which the Legislature intended to establish a civil process is actually criminal in nature. Smith, 538 U.S. at 92; State v. Nelson, 911 N.Y.S.2d 594, 598 (Sup. Ct., New York Co. 2010); see also Flemming v. Nestor, 363 U.S. 603, 619, 617 (1960) (to negate stated intent, challenger must produce "unmistakable evidence of punitive intent" to demonstrate punitive motivation).
As to this second prong, as set forth further herein, the Court finds this provision in the statute is not so punitive as to negate the civil purpose conceived by the Legislature.
(1)As to the First Prong of the Analysis, the Legislature's Intent with Section 10.07(c) Was Not to Establish a New Crime or Criminal Proceeding
There is no dispute that SOMTA has both criminal and civil provisions, but each such provision expressly articulates its nature and its intent. The criminal aspects of the bill were codified in the Penal Law, in the creation of the new "sexually motivated penalty."
Respondent muddies the legislative history of SOMTA, which has both criminal
and civil provisions, to contend that the Legislature defined a new crime of "sexually motivated felony" in Section 10.07(c) and that such provision therefore violates the Ex Post Facto Clause. Respondent's Mem. of Law. in Support, pp. 6-7.
SOMTA's criminal provisions created a new crime, to wit, a "sexually motivated felony" pursuant to New York's Penal Law, with specific sentencing provisions for that crime. See PL § 130.91 and § 70.45. These criminal provisions have no retroactive application to crimes committed before SOMTA's effective date. State v. Nelson, 911 N.Y.S.2d 594, 598-99 (Sup. Ct., New York Co. 2010). Notably, even those non-sex crimes committed prior to SOMTA's effective date that are determined to be "sexually motivated" by a civil jury under SOMTA's civil management provisions are not subject to these criminal provisions.
With respect to Section 10.07(c), however, the Legislature's intent is demonstrated by the label — "civil" — given to the provision by the Legislature, the way in which the provision was codified, and the enforcement procedures it establishes, all identifiers of legislative intent. Smith v. Doe, 538 U.S. at 94; Hendricks, 497 U.S. at 361.
In creating this "civil" commitment scheme in the Mental Hygiene Law, not the Penal Law, the Legislature's purpose is obvious. Section 10.07(c) also was codified in the Mental Hygiene Law, not with the new crime in the Penal Law. PL § 130.91.
Moreover, the enforcement provisions in the Mental Hygiene Law are different than those provided for the crime of sexually motivated felony, and rely only on the civil commitment process, not the criminal justice system. These factors demonstrate that the Legislature's intent was civil in nature; that is, to ensure that all appropriate persons, including those who committed crimes prior to SOMTA's enactment, are screened for civil management. Nelson, 911 N.Y.S.2d at 598-99; Governor's Mem., Bill Jacket, L. 2007, ch. 7, at 10; see also Farnsworth, 75 AD3d at 31 (civil management of old offenders is equally as important as that of new offenders). The Legislature did not intend this designation to be criminal. Nelson, 911 N.Y.S.2d at 599.
This legislative designation in Section 10.07(c) does not create a "new crime." SOMTA was driven by distinct and different intentions of the Legislature with respect to the creation of the crime of, and criminal consequences for, a "sexually motivated felony" committed after April 13, 2007, and the separate creation of a statutory scheme that sets forth a screening process and civil proceeding for the purposes of identifying those individuals who may be subject to SOMTA's civil management scheme. It is this tranche of SOMTA — specifically Section 10.07(c) of Article 10 — which allows a jury to determine whether certain non sex crimes committed before SOMTA was enacted were "sexually motivated." Mental Hygiene Legal Service, 2007 U.S. Dist. Lexis 85163, *75; Farnsworth, 75 AD3d at 15; Nelson, 911 N.Y.S.2d at 598-99.
Respondent erroneously points to certain legislative history of SOMTA to assert that the Legislature intended Section 10.07(c), which pertains to the group of individuals who may be subject to civil management under SOMTA, to be penal. Respondent's references cite to the criminal provisions enacted by SOMTA, not to Section 10.07(c). See Respondent's Mem. in Support, p. 6-7. In fact, all but one reference cited by Respondent pertain to the expressly criminal provisions of SOMTA creating a new crime in the Penal Law, that is, a "sexually motivated crime," which applies only to crimes committed after the Act's effective date, see PL § 130.91, and to the criminal sentence pursuant to that crime, PL § 70.45. Respondent's only citation relating to the actual provision at issue here is to one comment by Senator Dale M. Volcker, a sponsor of SOMTA, in which Senator Volcker refers to the term "new crime" with respect to the civil proceeding whereby non sex crimes committed prior to SOMTA may be determined to be sexually motivated. See Exhibit 1 to Respondent's Memorandum in Support of Motion to Dismiss, Excerpt from SOMTA Senate floor debate, p. 829.
One legislator's comment does not reflect the intent of the Legislature, particularly in light of the Legislature's stated purpose to create a civil proceeding. MHL § 10.01. See also, Harnett, 2011 NY Slip. Op. 00744, at *4 (Legislature intended to create civil statute; SOMTA is not a penal statute designed to punish past crime, but remedial one designed to prevent future crime); Doe v. Pataki, 120 F.3d 163, 1277 (2nd Cir. 1997) (isolated statements of some legislators are insufficient to characterize the legislature's intent as punitive).
The nature of Section 10.07(c) is civil. Designating the commission of a sex crime, or non-sex crime that was sexually motivated, as the evaluative tool to determine which convicted persons may be subject to civil management, does not change the civil nature of the proceedings to penal. The outcome of such a proceeding if a jury determines that (1) the offense was sexually motivated; and (2) that the respondent is a detained sex offender who suffers from a mental abnormality (as defined), is either civil commitment or strict and intensive supervision, neither of which is punitive. People v. Harnett, 2011 NY Slip Op. 00744, at *4.
For these reasons, the Court finds that the Legislature's intent was civil in purpose when it created a process whereby a non-sex crime committed prior to SOMTA's effective date may be determined by a civil jury to have been sexually motivated.
(2)The Statute Withstands Prong Two as it is not so Punitive as to Negate its Civil Intent
The Court also finds that Section 10.07(c) of Article 10 is not so punitive, either in purpose or in effect, as to negate the civil nature of the proceeding. Hendricks, 521 U.S. at 361; Smith, 538 U.S. at 92. Having examined the seven factors, as set forth below, outlined by the Supreme Court, first in Mendoza-Martinez, 372 U.S. at 168-69, and again in Smith, 538 U.S. at 92, the Court determines that Section 10.07(c) is not so punitive in either purpose or effect so as to negate its civil purpose.
The Mendoza-Martinez factors are a "useful guidepost" in an ex post facto analysis, Smith, 538 U.S. at 97, and the results are not simply be tallied up. Nelson, 911 NY S.2d at 604.
(a)The First Factor
With respect to the first factor, whether the sanction involves an affirmative disability or restraint, the Court finds that a jury determination, pursuant to Section 10.07(c) that a non-sex crime committed in the past was sexually motivated, making the person subject to the civil management provisions of the statute, is an affirmative disability or restraint.
Civil management may substantially restrain one's liberty, as the person may be subject to civil confinement in a psychiatric institution for an indeterminate period of time or to strict and intensive supervision, in the form of monitoring, supervision, and required attendance at treatment programs. Thus, for the first factor, the Court finds that Section 10.07(c) as it apples to pre-2007 non-sex crimes creates an affirmative disability or restraint. Nelson, 911 N.Y.S.2d at 600.
(b)The Second Factor
The Court finds that the second factor — whether civilly confining sex offenders has historically been regarded as punishment — is not met. It is well settled that civil commitment is not punishment, see, e.g. Addington v. Texas, 441 U.S. 418, 419 (1979) (exercise of state power in civil commitment context is not punitive). The Supreme Court also has examined such civil confinement in the context of a sex offender civil management statute, finding that such statute did not establish criminal proceedings and that confinement pursuant to its terms was not punishment. Hendricks, 521 U.S. at 369.
Numerous states also have enacted sexual offender civil management statutes, which repeatedly have been upheld against attacks that they are punitive. Nelson, 911 N.Y.S.2d at 602, citing, e.g., Young v. Weston, 344 F.3d 973 (9th Cir. 2003), and Arcuanno v. Hayman, 384 Fed. Appx. 144 (3rd Cir. 2010).
The analysis is no different for Section 10.07(c) of Article 10. SOMTA's civil confinement provisions are not punitive in nature and, in fact, have a different purpose altogether; that is, to prevent future sex crimes.
(c)The Third Factor
With respect to the third factor — whether Article 10's provisions only come into play upon a finding of scienter — the Court finds that this factor is met.
In order to determine whether the crime which an offender committed prior to April 13, 2007, was sexually motivated, the finder of fact, whether jury or judge, necessarily must examine the scienter, or mens rea, of the offender at the time of the crime. Nelson, 911 N.Y.S.2d at 602.
Counterbalancing the fact that there will be a scienter inquiry, however, is the fact that it will not be a broad-based one in these types of cases. The offenders to whom this section applies, such as the Respondent here, already have been convicted of serious crimes beyond a reasonable doubt. The issue to be determined is narrow, and relates only to whether that serious crime had a sexual motivation. The narrowness of the issue presented reduces the chance of erroneous condemnation. See Mental Hygiene Legal Service, 2007 U.S. Dist. LEXIS 85163, *84. Thus, this decreased risk of erroneous decision lessens the weight of this factor.
(d)The Fourth Factor
As to the fourth factor, the Court finds that Section 10.07(c) does not promote the traditional aims of punishment-retribution and deterrence typically intended by criminal statutes.
The prospective provisions of this statute (sex offenses committed after its effective date of April 13, 2007) have been upheld. People v. Harnett, 2011 NY Slip. Op. 00744; see also Hendricks, 521 U.S. at 362 (upholding similar statute). The Court of Appeals has held that SOMTA is not designed to punish a past crime, but to prevent a future one. Harnett, at *4.
Section 10.07(c) also fails to serve a punishment-retribution aim. Evidence of prior criminal conduct is used not to punish past bad acts, but to show the offender's mental condition and to predict the offender's future behavior. See Hendricks, 521 U.S. at 362; Nelson, 911 N.Y.S.2d at 603.
Allowing a jury to determine whether certain designated non-sex crimes, committed before SOMTA's effective date, were sexually motivated does not demonstrate the punitive nature of the statute. Although it may promote deterrence, the mere presence of a deterrent purpose does not render a sanction "criminal." Smith, 538 U.S. 102; U.S. v. Ursery, 518 U.S. 267, 292 (1996) (Supreme Court has long held that deterrence serves civil as well as criminal goals); Hudson v. U.S., 522 U.S. 93, 102 (1997) (all civil penalties have some deterrent effect).
Any number of other governmental programs may deter crime without imposing punishment. See, e.g., U.S. v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (keeping potentially dangerous weapons out of the hands of unlicensed dealers is a goal plainly more remedial than punitive); Bennis v. Michigan, 516 U.S. 442, 452 (1995) (forfeiture serves a deterrent purpose distinct from any punitive purpose).
Nor is the fact that persons civilly confined under Article 10 will be unable to commit any new crimes and are therefore "deterred" dispositive of the deterrence question. While civil management will deter the individual sex offender, Section 10.07(c) cannot serve to deter others, since persons with personality disorders or certain types of compulsions are unlikely to be deterred by the threat of confinement. See Hendricks, 521 U.S. at 362-63; Nelson, 911 N.Y.S.2d at 603; Martin v. Reinstein, 195 Ariz. 293, 305 (Ct. of Appeals, Arizona 1999) (challenge to constitutionality of Arizona's civil confinement law for "Sexually Violent Persons" denied where statute was civil in nature and rationally advanced legitimate goals of protecting its citizens and of treating sexually violent persons).
Even if the provisions of Article 10 could provide some deterrent to persons who have not yet committed a sex offense, it would certainly be less of a deterrent for the group of persons encompassed by Section 10.07(c). The acts that could potentially be determined to have been sexually motivated have already occurred. That provision of Section 10.07(c) applies only to such crimes committed prior to April 13, 2007; deterrence is not relevant as to those acts. Nelson, 911 N.Y.S.2d at 603.
For these reasons, the Court finds that Section 10.07(c) does not promote the traditional criminal law aims of punishment-retribution and deterrence and that the fourth factor is not met.
.(e)The Fifth Factor
The Court finds that the fifth factor — whether the behavior to which Section 10.07(c) applies is already a crime — is met. Section 10.07(c) only applies to individuals who have been convicted of certain crimes. See MHL § 10.03(f) (designates the crimes that are basis of an Article 10 inquiry) and § 10.03(p)(4)("sex offense" includes certain designated felonies, if "sexually motivated"). This narrow applicability may be indicative of punitive intent. Nelson, 911 N.Y.S.2d at 603; see also Smith v. Mount, 317 Mont. 481, 495 (Montana 2003). The nature of a person's prior criminal action(s) is the sole basis for determining if that person is subject to Article 10 and the civil management that may follow. Nelson, 911 N.Y.S.2d at 603.
Nonetheless, the fact that the provision applies only to individuals with certain past crimes is not dispositive as to whether the statute is punitive in nature or effect. The Court notes that all regulatory disabilities imposed in connection with conviction, i.e., the loss of the right to vote in some jurisdictions or loss of a driver's license, are triggered by certain criminal convictions. Doe v. Pataki, 120 F.3d 1263, 1281 (2nd Cir. 1997), cert. denied, 522 U.S. 1122 (1998) (laws creating civil disabilities triggered solely by the existence of a prior conviction not unconstitutional); Maine v. Haskell, 784 A.2d 4, 12-13 (Supreme Judicial Ct., Maine, 2001) (upholding Maine's sexual offender registration act against ex post facto challenge); Hawker v. New York, 170 U.S. 189, 196-97 (1898) (prior felony conviction conclusive evidence of lack of fitness to practice medicine).
(f)The Sixth Factor
The sixth factor — whether a rational purpose, other than punishment, may be associated with the statutory provision — is the "most significant factor" in determining whether a statute's effect is punitive. Smith, 538 U.S. at 102. Notwithstanding the weak bases upon which the New York statute is built, the Court must defer to the Legislature's judgment. C. Dorflinger Sons, 218 NY at 86 (court must interpret statute without reference to whether provisions are wise or unwise); Billi, 90 Misc 2d at 572 (wisdom of legislation is within legislative province).
Here, the Legislature had a non-punitive purpose in enacting Section 10.07(c) — to provide a procedure to bring past sexual offenders within the reach of the civil management procedures of Article 10. This is a legitimate state interest. See Mental Hygiene Legal Service, U.S. Dist. LEXIS 85163, *97 n. 34 (legitimate interest in addressing potential present and future need for extended treatment or detention of those whose crimes were committed in past); Nelson, 911 N.Y.S.2d at 607 (protecting public safety is government interest of highest order); see also Addington, 441 U.S. at 428-29 (personal liberty interest is subordinate to interest in protecting society from mentally ill and dangerous). This non-punitive purpose is rationally connected to the provision in SOMTA that allows a jury to determine if a non-sex crime was sexually motivated. The Court therefore finds that this factor is met.
Labeling a past crime as sexually motivated does not alter the nature of the offense. This designation does not subject the offender to criminal penalties. Hendricks, 521 U.S. at 36; Nelson, 911 N.Y.S.2d at 602. In addition, a determination that one may need treatment is fundamentally different from a determination that one committed a crime. Mental Hygiene Legal Service, U.S. Dist. LEXIS 85163, *81-82.
(g)The Seventh Factor
The last factor, whether the statutory provision appears excessive in relation to the alternative purpose assigned to it, is not met by Section 10.07(c). New York, along with other states that have enacted comparable sex offender treatment statutes, has a legitimate state interest in ensuring that past sexual offenders are subject to the civil management procedures of Article 10. See Mental Hygiene Legal Service, U.S. Dist. LEXIS 85163, *97 n. 34.
This Court may not substitute its judgment for that of the Legislature, (Billi at 572; see also Williams v Baltimore, 289 U.S. 36, 46 (1933)), and here, the Legislature's purpose in enacting Section 10.07(c) was to define the type of individuals whose past crimes may subject such persons to civil management. Attempting to include persons who committed crimes prior to the Act's effective date is a rational method to accomplish this aim.
Considering the Legislature's purpose in providing for the civil management of persons who committed crimes of a sexual nature prior to the effective date of SOMTA, the process established to allow a jury to determine if certain crimes were sexually motivated is not excessive.
(h)Weight of the Seven Factors Shows Section 10.07(c) is Civil in Purpose and Effect
Having considered and weighed the seven Mendoza-Martinez factors, this Court finds that Section 10.07(c) is civil in nature and is not so punitive in either purpose or effect so as to negate this civil intent. Only three of the seven factors — the fact that the sanction of civil management involves an affirmative disability or restraint, that the statute's sanction only comes into play upon a finding of scienter, and that the behavior to which the sanction applies is already a crime — weigh in favor of a finding that Section 10.07(c)'s designation provision is punitive.
Moreover, each of these factors is mitigated by the purpose of the provision at issue. First, as to the affirmative restraint factor, here that restraint is civil, a less onerous restraint than a criminal restraint. Second, the scienter inquiry is a narrow one since each respondent already has been convicted of a serious crime beyond a reasonable doubt and the only issue is whether there was a sexual motivation to that crime. Third, while the behavior to which Section 10.07(c) applies already is a crime, like civil management, comparable regulatory disabilities triggered by criminal convictions have been upheld where there is an important state interest.
Most compelling in a review of the Mendoza-Martinez factors is that the State has a very important non-punitive purpose in enacting this designation provision and it has tailored a limited provision to deal with this purpose. Sex offenders who were convicted of non-sex crimes — at a time in the past when the distinction of being convicted of a sex crime or non-sex crime was meaningless, and prosecutors had little or no incentive to ensure that the sexual nature of a crime was somehow "captured" in the type of conviction — are being released into the community.
Irrespective of the soundness of the legislative precepts, the Court must defer to the legitimate goals articulated by the legislature, however wise or unwise. C. Dorflinger Sons at 86.
Designing a civil process, whereby certain convictions are examined to determine whether the crimes were sexually motivated and, if so, whether the offender suffers from a mental abnormality, as that term is defined, will enable the State to civilly manage many offenders who otherwise would be returned to the community, despite their mental abnormality. This provision is limited in scope, not excessive in relation to its purpose, and, while an offender's liberty may be restrained through civil confinement, the Legislature's stated purpose in protecting the public by preventing future sex crimes outweighs such interest.
In addition, the provision at issue serves only to expand the group of persons who may be subject to civil management. It does not, standing alone, make them subject to it. Section 10.07(c) and its concomitant definitional provisions designates certain crimes which are the condition precedent for a review of whether such crime was sexual motived at the time it was committed. Only if such sexual motivation is found, will that person be subject to an inquiry as to whether he (or she) suffer from a mental abnormality. This bifurcated finding serves to ensure that only those persons who now suffer from a mental abnormality, as defined, will be subject to civil management.
For all these reasons, the Court finds that Mental Hygiene Law § 10.07(c) is not so punitive as to negate the civil intent of the Legislature.
This finding of non-punitive effect also would defeat any challenge that Section 10.07(c) violates the Double Jeopardy Clause.
The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., Amdt. V. This clause prohibits a second prosecution for the same offense and prevents the state from "punishing twice, or attempting a second time to punish criminally, for the same offense." Kansas v. Hendricks, 521 U.S. at 369, quoting Witte v. United States, 515 U.S. 389, 396 (1995).
As Section 10.07(c) is civil in nature, initiation of proceedings pursuant to Article 10 does not constitute a second prosecution. Hendricks, 521 U.S. at 369; cf. Jones v. United States, 463 U.S. 354, 370 (1984) (permitting involuntary civil commitment after verdict of not guilty by reason of insanity). As noted above, civil management is not punishment. Hendricks, 521 U.S. at 369. Accordingly, a challenge on double jeopardy grounds likewise would fail. 521 U.S. at 369.
Accordingly, the Court finds that, pursuant to both prongs of the requisite inquiry, Section 10.07(c) of Article 10 does not violate the Ex Post Facto Clause.
VI. CONCLUSION
For all of the foregoing reasons, Respondent's motion to dismiss the Article 10 petition against him is denied.
The Court considered the following in deciding the motion: Notice of Motion and Memorandum of Law in Support of Motion, dated February 7, 2011, and exhibits thereto; Affirmation of Russell T. Seeman, Assistant Attorney General, dated March 1, 2011; and Reply Memorandum of Law, dated March 28, 2011.
This constitutes the Decision and Order of this Court.