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Defendant Contends He Was Not Given Psychiatric Evaluation


A man was arrested for alleged acts of sodomy with a 12-year-old male child and was indicted on five counts, all involving such acts. He pleaded not guilty. Although the record is incomplete as to the various steps which were taken thereafter, it is clear that the man was sent to the Hospital for some form of psychiatric examination and was reported insane. A New York Sex Crimes Lawyer said the County Court thereupon committed him to the State Hospital. Almost two years later, he was returned to the County Court, certified as sane, and he withdrew his plea of not guilty and pleaded guilty to the fourth count of the indictment charging him with sexual assault with intent to commit the crime of sodomy. He was once again sent to the County Hospital for observation with pending sentence. The record contains no report or certificate from the Hospital indicating that the man received a psychiatric examination pursuant to the Penal Law, and there is no proof that the Court had or considered such a report before it sentenced the man. The record show that on April 6, 1955, upon motion of the man’s retained counsel, the report of the Psychiatric Division of the County Hospital, finding the man sane is confirmed. On May 16, 1955, the County Court ordered that the man be imprisoned in the State Prison at hard labor, under an indeterminate sentence, the maximum of such imprisonment to be his natural life and the minimum thereof one day. It is not contradicted that the year the man was sent to the State Prison’s psychiatric clinic that prison was closed after having been in operation for more than four years. The record does not disclose when the man was transferred from the State Prison to Attica Prison where he is presently held. The claim of the man’s counsel that Attica Prison does not have nor has ever had any facility for psychiatric treatment during the time of the man’s confinement therein is not refuted.

The man’s contention that he was not given a psychiatric examination pursuant to Penal Law was not explored at the County Court hearing. The man’s assertion that the report of the County Hospital made after his guilty plea does not disclose that the man was a psycho path or of violent character and was bare of any descriptive sexual abnormality finds support in the only record from that court dealing with the subject which simply confirmed a finding that the accused is sane. The notation supports the probability that the examination was in compliance with the Code of Criminal Procedure, indicating the man’s capability of understanding the charge and making his defense, rather than in compliance with Penal Law.

If the further hearing should confirm the man’s position, the Court is constrained to remit the matter to the County Court for proceedings consistent with the memorandum which specifically provides that no person shall receive the indeterminate sentence until a psychiatric examination shall have been made of him and a complete written report thereof shall have been submitted to the court. A New York Sex Crimes Lawyer said the statute requires such an examination in every case in which a sentence of from one day to life may be imposed, regardless of whether such a sentence is in fact imposed.

It was envisioned, as the title of the statute itself suggests, that treatment was an integral and essential part of a program to be followed in the penal system. When the offender could be treated with some reasonable chance of improvement, it was contemplated that under a sentence so flexible that it might last for his natural life, he would be able to receive adequate treatment and would be discharged if improved to the extent it would be safe to release him.

The man’s petition which is also un-contradicted, recites that he appeared before the Parole Board on four occasions and the Board completely ignored him for parole despite report of the supervising psychiatrist of the Attica Prison, whose recommendation was submitted to the Board of Parole that the man was not dangerous and a good risk and that the man should be released on parole.

It is claimed that the man has been in custody for approximately 12 years under the circumstances set forth in his petition, such is a direct violation of the recommendations of the Committee whose report was the basis for the statutory enactment. A Nassau County Sex Crimes Lawyer said the Committee made it clear that a very essential and fundamental responsibility that the law shall impose upon the Department of Mental Hygiene, the Department of Correction and the Board of Parole is the solemn duty of giving his case prompt and intensive study, to be followed where feasible by therapeutic treatment, to the end that such offender may be rehabilitated and released whenever it may appear that he is a good risk on parole. When serving under this form of sentence, it is required that a prisoner receive thorough psychiatric examination not less than once every two years, and consideration by the Parole Board. The man’s claim that the statute providing for his sentence is unconstitutional was resolved. Notwithstanding the decision’s determination that the statute is constitutional, it necessarily follows that if there is a complete failure to carry out the procedures for psychiatric examination and treatment which are so vitally a part of the statutory design, it may well be argued that the imposition of the one day to life sentence is a violation of the man’s constitutional rights under the Eighth Amendment to the United States Constitution and Article One, section five of the New York State Constitution which prohibit the infliction of cruel and unusual punishments.

It may not be inappropriate to suggest that the entire problem of sexual psychopaths should have further and continuing study to devise some system of dealing with them which has a more enlightened approach than the program currently operating. A Queens Sex Crimes Lawyer said the inadequacy of current legislation dealing with the problem deprives the sentencing court of any alternative other than physically protecting society from the violator by the method of isolation. As of 1959, twenty-six states and the District of Columbia had enacted legislation which recognized that the sexual psychopath can neither be termed normal nor legally insane and, therefore, it naturally follows, that he requires special consideration not only for his own welfare but for the public’s as well. While it represents a new approach, directly involving the resources of modern psychiatry and psychology, it is indeed consonant with our traditional concept of individualized justice in that it substitutes civil commitment, treatment and segregation of the unfortunate sex deviate rather than criminal punishment. If there is no provision for medical and scientific facilities to deal with sex offenders, the moral issue involved in the sentencing the persons to life imprisonment must be faced. Adequate psychological and psychiatric services are indispensable to the whole concept of one day to life sentences and without them the one day is meaningless and the life may well be the end result.

The matter was remanded to the County Court for a full and complete hearing dealing specifically with the questions of compliance with the Penal Law and the extent of the psychological and psychiatric treatment given the man during his many years of imprisonment. The man is given a complete psychiatric examination by a duly qualified psychiatrist to determine whether it would be dangerous to release him and whether he is capable of rejoining society on the outside.

Children should always feel safe and be protected from people who committed crime against them. Once a child’s trust to the people around him is violated, it would be the hardest things to mend. If you need to safeguard your family from sex and crime offenders, contact a Kings Sex Crime Attorney and a Kings Criminal Lawyer from Stephen Bilkis and Associates.

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