New York's sex offender confinement law may violate the Constitution

By Bergstein & Ullrich, LLP
Feb 19, 2013

No politician will ever be taken to the woodshed for getting tough on sex offenders. That is what the federal courts are for. The former governor of New York and other public officials may lose a civil rights lawsuit filed by sex offenders who claim that the state's civil confinement law violates the Due Process Clause.

The case is Bailey v. Pataki, decided on February 14. After a newly-paroled sex offender in 2005 killed a woman in a shopping mall parking lot in 2005, Governor Pataki pressured his people to find a way to lock up violent sex offenders in a psychiatric institution after their prison terms ran out. As the Second Circuit (Sack, McLaughlin and Hall) wrote, Pataki directed the Office of Mental Health and the Department of Corrections "to push the envelope of the State's existing involuntary commitment law because he couldn't wait any longer for the Assembly Leadership to bring his legislation to the floor for a vote." The Civil Commitment Initiative was therefore quickly implemented.

Under the Initiative, the identified inmates would be subject to a review of their criminal histories, and then to an examination by two physicians, who would determine whether they posed a risk to the public, or suffered from a mental illness, and therefore needed inpatient care and treatment. If the physicians recommended civil commitment, the inmate would be transferred to a psychiatric center and examined by a psychiatrist to confirm the diagnosis. Once admitted to the facility, the inmate would begin undergoing a specialized course

of treatment.

The whole thing was a rush job. The standards governing which inmates to confine post-incarcertation were inconsistent with those governing involuntary commitments under the Mental Health Law, and it was difficult to get up to speed on -- and fairly apply -- the new rules. There were other problems with the new procedures as well. The lawsuit claims that the plaintiffs "were denied their Fourteenth Amendment right to procedural due process when they were committed to a psychiatric institution without the benefit of notice, psychiatric examination by court-appointed physicians, or a judicial hearing prior to their commitment." While the inmates are entitled to a hearing after the state confines them post-incarceration, that's not enough under the Due Process Clause, and the state's motion for summary judgment is denied.

Post-deprivation process is OK under the Constitution if pre-deprivation process is unfeasible or unduly burdensome, i.e., the liberty interest is slight or an emergency makes it impossible to hold a hearing to protect the liberty interest of not being confined against his will. But there is no emergency here, the Second Circuit says, because state officials have enough time before the incarcerated inmate leaves prison to determine if this sex offender poses a risk to the community. Also implicating the Due Process Clause is the fact that the program was enacted in haste, the rules are unclear and the potential for erroneous confinement is too risky.

Although the program may violate the Due Process Clause, the defendants sought qualified immunity, arguing that the law was not clearly-established when the program was enacted. The Court of Appeals denies qualified immunity. Supreme Court precedent, Zinermon v. Burch, 494 U.S. 113 (1990), which outlines when the state must offer pre-deprivation process prior to the deprivation of liberty, is close enough that defendants should have known they were violating the law when they came up with the program in 1995. The case therefore goes to trial.