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Court Discusses Possible 5th Amendment Violation


Decisions to protect the public from a person who is violently mentally ill can create many fundamental issues of law and civil rights. This legal quandary has been a puzzlement for Americans since our country began. Freedom to live our lives without the fear of the Federal Government removing our freedom without the benefit of a trial before a jury of our peers is fundamental to our belief systems. However, there are times that we must question the benefit of releasing someone who will almost definitely commit a violent crime if they are ever released from an institution. On May 26, 2011 the Supreme Court of New York held a probable cause hearing to determine if a man who was a detained sex offender should remain incarcerated after his pending release date because of his need for civil management.

The Mental Hygiene Law of New York provided the government with a means to deprive citizens of their right to freedom if they were determined to be a threat to themselves or others based on their mental health. Section 10.06(k) of the Mental Hygiene Law does not provide a different rating for sex offenders (sex crimes) who are dangerous and those who are not when recommending civil management. Once an offender has been determined a sex offender who may require civil management, the only requirement is probable cause to detain the subject post release or pre-trial.

The case that was brought before the court in 2011, disclosed that this law was possibly an affront to the United States Constitution. As such, the attorney for the defendant, filed a motion for the Supreme Court to review the Constitutionality of the law under the Fifth Amendment to the United States Constitution. The Supreme Court examined the conditions of the case. The case involves a man who is detained as a sex offender pending an trial for additional crimes. The trial court in his preliminary hearing found him to be in need of evaluation by the State Office of Mental Health. After the OMH review, it was recommended that the defendant be released from detention under appropriate supervision and treatment into the community pending a hearing of his case. The judge determined that the severity of the charges and the risk to the community was too severe to allow for the release of the defendant pending trial.

The history of the law is that it was created to fill the gap that exists between normal recidivist criminals and those who are serial sex offenders. The law maintains that some people who are serial sex offenders have a mental abnormality that makes them act out sexually, committing crimes such as rape, sexual assault and statutory rape. It provides for the detention of these people under civil management either pending trial, or after they have served their assigned prison term. Once probable cause has been determined, the subject can be confined in pending a hearing on their need for civil management. The Sex Offender Management and Treatment Act (SOMTA) was enacted by New York as well as 19 other states to ensure that sexually based offenders who have acted repeatedly on uncontrollable sexual urges that follow a predictable pattern that they are not able to control may be confined to protect the public and whether that confinement violates their civil rights under the US Constitution.

There is no doubt that the Fifth Amendment protects people from being detained without cause. However, for a person to be detained who has a mental abnormality and is a dangerous sex offender requiring confinement does not delineate between lessor forms of management that can be substituted for incarceration. It is because of these facts that the Supreme Court determined that this law deprives the citizen of their due process of law and as such is illegal under the Fifth Amendment to the US Constitution.

At Stephen Bilkis & Associates, their criminal lawyers are ready to help you with convenient offices located throughout New York. Our sex crimes attorneys will fight for your rights in the event that you are detained for child pornography, sexual assault or prostitution.

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