Ben Loefke, Staff Writer
Instead of committing three time sex-offender Daniel Gierszewski of Buffalo to civil confinement, New York State Supreme Court Judge, Richard C. Kloch Sr. decided that stringent parole conditions would suffice for the recently released convict.1 Each of Gierszewski’s convictions has involved sexual misconduct with young girls, aged sixteen, fifteen, thirteen, and ten.2 After serving his most recent sentence—a fourteen year stint for fondling a ten year old girl—Gierszewski, has been in an upstate psychiatric center pursuant to a New York law that allows for the commitment of recidivist sex offenders to be civilly committed if they are shown to have “mental abnormality” that prevents them from controlling their predatory urges.3
In 2007, at the prodding of then Governor Elliot Spitzer, the New York state legislature passed into law the bill that became section ten of the Mental Hygiene law.4 It was fourteen years coming, but finally the state decided to follow the example set by nearly twenty other states and adopt legislation that would enable civil confinement of sex offenders with mental problems that made it likely they would recidivate.5 The statute allows for civil confinement of detained sex offenders who can be proven by the attorney general to suffer from “mental abnormality.”6 The law’s stated purpose is “to protect the public, reduce recidivism, and ensure offenders have access to proper treatment.”7 The general idea behind the civil confinement is that mentally ill sex offenders should not be permitted to rejoin society when it is likely that they will victimize someone again because they lack control over their own conduct.
The United States Supreme Court acknowledges the states’ ability to commit convicts, who have already served their sentences, to psychiatric institutions beyond their criminal sentences.8 In Kansas v. Crane, the Court clarified an earlier decision holding that sexual offenders who have been proven unable to “control their urge[s],” can be committed, through a civil proceeding, to a mental hospital.9 So long as the state affords the convict with due process and it is shown that the particular offender lacks control over his conduct, the state will not violate the federal constitution by enacting legislation that seeks to commit a dangerous recidivist sex offender after he has served his criminal sentence.10
Importantly, Justice Breyer, writing for the Court, explained that the state must show “lack of control,” but that it need not show “complete lack of control.”11 The practical result of Crane is that states can find ways to keep dangerous repeat sex offenders from re-entering society, without proving that a convict is “completely” out of control of his actions.
The tensions are rather apparent. For the average reader it is probably hard to decide whether to be angry that a person can be put into a psychiatric center after they serve jail time (which is supposed to be a criminal’s repayment for his wrongs), essentially extending that convict’s sentence indefinitely at the hands of a psychiatric evaluation that is probably slanted against him or her, or to be outraged that a repeat sex offender can, at the determination of a judge, be set free amongst the public where he or she very well might ruin another victim’s childhood through his or her deplorable acts. Here lies the great tension.
Abuse of these statutes is a realistic concern. Sex offenders are among the most hated criminals, especially those who victimize young children. It would not be a stretch to say that men and women convicted of sexual crimes will have the balances tipped against them in commitment proceedings. Who wants to return a three time offender to society? Who would do so in good faith with a clear conscious?
This is where Judge Kloch re-enters the story. The upstate judge determined that Gierszewski should be released from his commitment not because he “has ‘earned’ this opportunity. He has earned nothing. Rather, the court believes it can assure that Mr. Gierszewski will not likely commit a further sex offense by SIST management.”12
Judge Kloch has struck a balance. Although the civil confinement law may be on “thin constitutional ice” because of the ambiguity and inherent unfairness in holding a person who has theoretically already paid his or her debt to society, the upstate judge has figured out a way for the court to keep its eye on released sex offenders without taking away their liberty entirely.13
As has been noted, the civil confinement law leaves something to be desired.14 Although it is a large step toward protecting society from the deplorable behavior of sex offenders, the statute infringes upon the rights of these unsavory individuals more than it should. Little more than one year after its enactment, the Sex Offender Management and Treatment Act is having a positive impact. The shortcomings of the statute will be sorted out through the course of litigation and ultimately the final word will be passed by the New York Court of Appeals, but until then, judges may hold the key to fair application of the law. A movement towards “super-parole” with swift and severe penalties for its violation would better serve the rights of sex offenders as balanced against the rights of society to have safety and security.
Meredith Perry & Eric Schillinger, editors.
1 See Thomas J. Prohaska, Sex Convict to be put on ‘Super-Parole,’ Buffalo News, Feb. 3, 2009 (explaining the “super-parole” consists of eighty different conditions, the violation of any of which would reopen the commitment matter and could result in sending Gierszewski back to confinement).
2 See id.
3 N.Y. Mental Hygiene Law § 10.07(f) (McKinney 2009) (explaining that the Attorney General has the “burden of establishing that the respondent is a detained sex offender who suffers from a mental abnormality . . . .”).
4 §§ 10.01-10.17.
5 See Clifford W. Crouch, Civil Confinement Is Now Over 5,000 Days Old, Jan. 7, 2007, http://assembly.state.ny.us/mem/?ad=107&sh=story&story=21008.
6 N.Y. Mental Hygiene Law § 10.07(f) (McKinney 2009) (explaining that the Attorney General has the “burden of establishing that the respondent is a detained sex offender who suffers from a mental abnormality . . . .”).
7 § 10.01(c).
8 See Kansas v. Crane, 534 U.S. 407 (2002).
9 Id. at 414.
10 Id. at 409.
11 Id. at 407 (“Kansas now argues that the Kansas Supreme Court wrongly read Hendricks as requiring the State always to prove that a dangerous individual is completely unable to control his behavior. That reading, says Kansas, is far too rigid.”).
12 Prohaska, supra note 1 (quoting Judge Kloch’s opinion); Office of the New York State Attorney General, Sex Offender Management and Treatment Act: The First Year 7 (2007) (Strict and Intensive Supervision and Treatment (SIST) “is intended for those patients who need close supervision and monitoring, but who can, with supervision and support, live safely in the community”).
13 See Sara E. Chase, The Sex Offender Management and Treatment Act: New York’s Attempt at Keeping Sex Offenders off the Streets . . . Will it Work?, 2 Alb. Gov’t L. Rev. 277, 298 (2009).
14 See id. at 302-03 (explaining that those convicted of sexual offenses must fight a presumption of guilt in civil confinement hearings and that the statutes impinge constitutional rights of the sex offenders themselves).