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United States v. Salerno


This proceeding brought before the court on 26 May 2011 held a probable cause hearing arising out of a petition filed on 14 January 2011 by the New York State Attorney General (“Petitioner”), pursuant to Article 10 of the Mental Hygiene Law (“MHL”), seeking a determination that Respondent ET is a detained sex crimes offender requiring civil management. Dr. KC, a licensed psychologist, who was qualified by the Court as an expert in the field of psychology, testified on behalf of Petitioner. Respondent presented no witnesses.

At the conclusion of the hearing, Petitioner asked the Criminal Court to make a finding of dangerousness with respect to Respondent and to direct that he be civilly confined pursuant to MHL § 10.06(k) pending a trial on the matter.

Based upon the evidence presented at the hearing, the Court found that Petitioner had established that there is probable cause to believe that Respondent is a detained sex offender requiring civil management. The Court issued an interim order finding that Respondent would be a danger to the community, in part because no form of community supervision pending the outcome of the Article 10 petition is provided for in Article 10. The Court informed the parties that it would issue a written decision.

On 13 June 2011, the Court re-opened the hearing to allow the parties to present additional evidence on the issue of civil confinement of Respondent pending a trial in the action. Although the Court heard additional argument on the matter, no new evidence was presented by either party.

The Court finds facially unconstitutional that section of MHL § 10.06(k) which mandates confinement of a respondent pending trial after a court has made a finding of probable cause to believe that a respondent is a sexual abuse offender requiring civil management.

It was held in United States v Salerno that the due process protections of the Fifth and Fourteenth Amendments to the United States Constitution mandate a specific finding of dangerousness of a respondent in a pre-trial detention context. The Supreme Court held that any such pre-trial detention also requires a finding that lesser conditions than confinement would not suffice to protect the community.

The Court finds that the portion of MHL § 10.06(k) that mandates civil confinement of Respondent after a finding of probable cause imposes such a severe liberty restraint on Respondent pending trial even more severe than the consequences likely to be imposed on Respondent after a trial and provides no option or alternative for lesser restrictions, that it is facially unconstitutional.

The Court also notes that there is no other provision in Article 10 that addresses the issue of release or confinement of a respondent pending trial. The court has no power to re-draft legislation and it is impossible to construe 10.06(k) in a way to allow Respondent to be released after a finding of probable cause upon lesser restrictive conditions than confinement to ensure public safety.

The United States Supreme Court has decided several cases that are relevant to the issue of the constitutionality of MHL § 10.06(k). In addition, both state and federal courts in New York have discussed and/or analyzed MHL § 10.06(k) which is at issue here.

In United States v. Salerno, a case involving challenges to the constitutionality of the pre-trial detention provisions of the federal Bail Reform Act of 1984 (“Bail Reform Act”), the United States Supreme Court articulated the factors that a court must consider in determining whether a pre-trial detention scheme meets the constitutional due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution. The court noted that a facial challenge to a legislative act is extremely difficult as the facial constitutionality of such legislation will be upheld unless no set of circumstances could exist wherein the legislation would be valid. The Court analyzed the federal legislation at issue via a substantive due process scrutiny and a procedural rape due process scrutiny.

In the Salerno case, the Court upheld the Bail Reform Act noting that the first step is to ascertain whether the liberty restriction constitutes impermissible punishment or permissible regulation. The court found that the Legislature intended the pre-trial detention scheme to be regulatory, that is, civil in nature, not penal.

The inquiry requires the court to determine whether “an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned as held in Kennedy v. Mendoza–Martinez.

In Salerno, the Supreme Court pointed out that the Legislature had important governmental interests in protecting the safety of the public and had narrowly and carefully crafted legislation that procedurally safeguarded the liberty interests of the respondents who were subject to the Bail Reform Act. It noted that the Bail Reform Act operates only on individuals who have been arrested for a specific category of very serious criminal offenses.

The Court examined the legislative history of the Bail Reform Act and noted that Congress had specifically determined that individuals who were charged with the enumerated sex crimes were far more likely to be responsible for dangerous acts in the community after arrest.

The Court concluded that the Bail Reform Act withstood the challenge that it violated the Fifth Amendment Due Process Clause; the Supreme Court found that the procedural protections built into the Bail Reform Act—that probable cause must be established that the person at issue had committed one of the enumerated serious crimes, and that, even if probable cause were to be established in such a case, a “full-blown adversarial hearing” is required at which the government must establish, “by clear and convincing evidence, that no conditions of release could reasonably assure the safety of the community or any person”—and the legitimate and compelling regulatory purpose of the Bail Reform Act were not outweighed by an individual’s strong interest in liberty.

Because MHL § 10.06(k) is civil, not penal in nature and intent, the Supreme Court’s decisions in the field of confinement of mentally ill individuals also is instructive with respect to an analysis of the constitutional validity of MHL § 10.06(k).

In 1975, the Supreme Court in O’Connor v Donaldson held that it was unconstitutional for a state to continue to confine a harmless, mentally ill person. The Court ruled that, as a matter of constitutional due process, even if the initial commitment of the person was permissible, confinement could not continue if the basis for such confinement-current mental illness and dangerousness-no longer existed.

In 1979, the United States Supreme Court in Addington v Texas held that constitutional due process required the government to prove two statutory preconditions by clear and convincing evidence before a court could commit an individual to a mental institution: (1) that the person sought to be committed is mentally ill; and (2) that such person requires hospitalization for his own welfare and protection of others.

In Addington, the issue was not pre-trial detention, but rather the requisite standard of proof to civilly confine a person clear and convincing, not preponderance of the evidence.

A year later, the Supreme Court held in Vitek v Jones that absent a determination in a civil commitment proceeding of current mental illness and dangerousness, even an incarcerated prisoner serving a criminal sentence could not be transferred to a mental institution. The Supreme Court noted that even a convicted felon serving his criminal sentence has a liberty interest, which is not extinguished by his criminal confinement, in not being transferred to a mental institution and thus classified as mentally ill. The Court held that the loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. That case, like Addington, did not address pre-trial detention.

The Fifth Amendment to the U.S. Constitution guarantees that no person shall be deprived of life, liberty, or property, without due process of law. It articulated a two-step analysis with respect to any claim of a due process violation under the Fifth Amendment.

First, the court must determine if a liberty interest is affected. If a liberty interest is at stake, then the court must determine the process which is due.

In determining what process is due in a particular circumstance, the Supreme Court in Mathews v Eldridge set forth three factors that a court must weigh: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and (3) the government’s interest in the procedure used, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

MHL § 10.06(k) mandates confinement of a respondent upon a finding that there is probable cause to believe that respondent is a sex crimes offender requiring civil management. The section also mandates that such a respondent must be so confined pending the completion of a sex offender civil management trial.

Although, pursuant to MHL § 10.07(a), the trial of the matter is to be conducted within 60 days of the probable cause determination, there is no time frame set forth in the statute with respect to scheduling or completing the dispositional phase of the trial (wherein the court makes a determination of dangerousness and confinement versus SIST. As noted earlier, the actual time period for completion of such trials is approximately one year.

The Court thus finds, as did the Southern District of New York in MHLS–I and MHLS–II, that a substantial liberty interest is implicated by the operation of the mandatory confinement provisions of MHL § 10.06(k).

Accordingly, Respondent is entitled to due process as he faces loss of his liberty via the mandatory pre-trial detention scheme of MHL § 10.06(k) pending the completion of a sex crimes offender civil management trial.

The Court finds that, having weighed the three factors set forth in Mathews, MHL § 10.06(k) violates Respondent’s due process rights.

As to the first Mathews factor—the private interest that will be affected by the official action-the Court finds that Respondent has a strong liberty interest that is substantially affected by the mandatory pre-trial confinement scheme of MHL § 10.06(k).

The second Mathews factor requires the Criminal Court to examine the risk of erroneous deprivation of the interest at stake as a result of the State’s procedures and the probable value, if any, of additional or substitute safeguards with respect to that interest. In the case at bar, the Court finds that the risk of an erroneous deprivation of Respondent’s liberty under Article 10’s pre-trial detention scheme is great.

MHL § 10.06(k) mandates detention after a finding of probable cause until completion of the trial. Supreme Court precedent, set forth in Salerno, instructs that a person can be confined pending trial only if, along with a finding of probable cause, the State proves by clear and convincing evidence that there are no conditions of release that can reasonably assure the safety of the community or any person, before such person may be detained pending trial.

Here, no such finding of dangerousness or lesser conditions than confinement is required by, or even permitted by, MHL § 10.06(k). Even if such finding were required by the statute, no such finding can be made here.

Due process cannot countenance a statute that mandates such a choice.

The court concludes that the government interest in protecting the public as set forth in the Legislative findings of MHL § 10.01 et seq. is not effectuated by the broad mandatory detention provisions of MHL § 10.06(k), and there is significant fiscal value and very small burden to the State if it were to modify the statute to safeguard the pre-trial detention due process rights of respondents.

The Court finds that the mandatory confinement provisions of MHL § 10.06(k) are unconstitutional in that they lack the requisite due process protections mandated by Salerno and even if the court were to construe the statute to require the findings specified in Salerno, no such findings could be made in this case.

As the Court has no power to re-write the statute to allow Respondent to be released under supervision and treatment pending trial, the Court declares those provisions of MHL § 10.06(k) unconstitutional.

Based on these reasons, the court has determined that the aforementioned prostitution provisions of MHL § 10.06(k) are unconstitutional. Accordingly, the Court is constrained to order Respondent’s release. Notwithstanding the foregoing, the Court stays this Order for 10 days to allow the parties to seek any appropriate relief they deem necessary.

Moreover, although the Court is not statutorily empowered to order pre-trial supervision and treatment of Respondent, the Court notes that the parties may agree to any such terms and conditions, pending trial, as they deem fit.

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