October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Recommendation: A. The Task Force makes no specific recommendation concerning legislative changes in the criminal sentencing laws, or in the correctional management of sex offenders by the Department of Corrections. B. It takes this position not because it believes that such changes are not viable alternatives to the current system of civil commitment, but because the detailed subjects of criminal sentencing and the jurisdiction of DOC involve issues beyond the scope of the charge given to the Task Force. C. Nonetheless, the Task Force notes that, as reflected in its earlier report, and as corroborated by information provided during its consideration of these issues, providing treatment to sex offenders while they are subject to correctional incarceration and supervision appears to be effective and cost-effective, and expansion of those treatment programs should be examined carefully, regardless of any changes in sentencing laws for sexual offenses. Discussion questions: 1. Should this Task Force make any specific recommendations concerning sentencing or other correctional measures for managing sex offenders?


October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Draft Recommendation: A. The Task Force recommends that the Legislature establish a centralized, professionally independent screening unit with statewide jurisdiction to develop and implement a comprehensive assessment process to identify and refer sex offenders who meet the criteria for commitment under the SDP or SPP laws. The unit and its mandate should be based on the RARR unit established in New York State. Its screening and selection methodology must be based on the most accurate scientific understanding available, including the use of current, validated risk assessment instruments. The unit must have sufficient staff, with sufficient training and professional independence, to assure that the selection is based on the best science available, and that political interference is strictly prohibited and independent judgment strictly guaranteed. The selection process must use multidisciplinary teams of professionals with training and credentials that assure that their assessments are evidence-based, based on the most accurate science, and free of political interference. The law should charge the unit with the production of consistent, accurate and quality evaluations. The work of the unit should be audited by wellqualified, independent auditors at least once every two years. No petition for civil commitment of individuals as sexually dangerous persons or sexually psychopathic personalities should be allowed without first having been submitted to the screening unit. B. The panel would review the proposed petition, and determine whether, in its judgment, the petition should be pursued – a higher standard than the current direction to DOC to forward cases that “may” meet commitment criteria.


October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

C. A decision by the panel that a petition is not appropriate would not be binding on the prosecuting authority, but would be admissible in proceedings before the body adjudicating the commitment petition. Discussion Questions: 1. Should there be a centralized screening process? 2. What is the purpose of a centralized screening process? 3. Who should conduct the screening? a. How specific should our recommendation be about who or what qualifications are sought for screeners? b. Should this be a uniform statewide body? c. Should it be a panel? Or just one person? d. Should it be a panel of experts? Or a judge? Or a 3-judge panel? e. Should county attorneys be involved in the screening process? 4. Does the centralized screening body apply a standard for referral that is different from the “may be appropriate” for civil commitment standard? a. Should there be a minimum number of convictions or types of convictions as a threshold for referral? b. Should actuarial scores have a predominating role in identifying who is highly likely to reoffend? c. Should centralized screening be given investigative resources to gather factual information to supplement information maintained by the DOC for purposes of evaluating the strength of a potential case or potential alternatives to civil commitment?


October 23, 2013 1 2 3 4 5 6 7

5. Should centralized screening serve a gatekeeper role by requiring its affirmative recommendation before a petition can be filed by a county attorney? If not, what if any attention should be given when its recommendation is against seeking commitment but commitment is nevertheless pursued?


October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Draft Recommendation: A. The Task Force recommends that the prosecutorial function remain with the county attorneys’ offices across the state. B. Issues regarding perceived inconsistent prosecutorial decisions are more appropriately addressed by changes in the commitment screening process. Discussion Questions: 1. Should concerns about the overall number of petitions or the geographic differences in rates of petitioning be addressed: a. by changes to the statutory criteria for civil commitment as SDP/SPP? b. by giving authority to a central screening body to limit which cases are eligible for petition? c. by changing who has the authority to file a petition for SDP/SPP commitment: i. The County Attorney (status quo)? ii. The Attorney General? iii. A special prosecuting authority that reports to a board rather than to an elected official?


October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Draft Recommendation: A. The Legislature should change the standard of proof for commitment from clear and convincing to beyond a reasonable doubt. B. The legislature should provide for the creation of a special civil commitment court with statewide jurisdiction in all civil commitment matters based on the alleged status of the person subject to commitment as a sexually dangerous person or sexually psychopathic personality. C. The court should be comprised of senior judges retired from active service, and should have resources to appoint examiners and other professionals to provide reports and recommendations to the court independent of submissions by the prosecution or defense. D. The legislature should create a panel of qualified commitment defense counsel, and ensure that the defense of indigent persons subject to commitment proceedings is adequate, both with regard to the quality of legal representation and investigative and professional resources. E. The Task Force recommends that the Legislature modify current procedural law to provide for a bifurcated hearing process. The first hearing would determine if commitment is appropriate; the second hearing would determine the terms and conditions of commitment, including placement. F. The Task Force recommends that the Legislature authorize the committing authority to stay enforcement of a commitment order, and to provide to the committing authority broad discretion in setting the terms and conditions of commitment, including placement. Discussion questions:


October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

1. Should the procedures for disposition of a petition for commitment be changed? a. Should SDP/SPP petitions be heard by a single statewide panel of judges? b. Should SDP/SPP petitions be decided by a panel of experts rather than by a judge? c. Should the respondent to a SDP/SPP petition be given a statutory right to a jury trial? d. Should the standard of proof continue to be clear and convincing evidence that the criteria are met? 2. Should the existing statutes and rules for a stay of commitment be changed? 3. Should there continue to be a rebuttable presumption that the placement upon commitment be in a secure facility? 4. Should the commitment hearing be bifurcated such that first it is determined whether the individual meets commitment criteria and then, if he does, what placement meets the needs for treatment and public safety? 5. Should the determination of the level of confinement be made by the same authority that decides commitment? 6. What role, if any, should MSOP have in the initial commitment process, particularly with respect to determining placement?


October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14

Draft Recommendation: A. The Task Force recommends that the Legislature restate the criteria for civil commitment to provide the public, those who might be subject to civil commitment, prosecutors, and the courts with clearer and more concrete standards by which commitment decisions will be made. B. Such changes should include consideration of [Insert specific recommendations for changes in the statutory criteria for commitment] Discussion questions: 1. Should the statutory criteria/elements for commitment as SDP or SPP be changed? 2. Should there continue to be both a SDP and a SPP category of commitment? 3. Should there be statutory definition or minimum threshold for the likelihood of reoffense?


October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Draft Recommendation: A. The Task Force recommends that the Legislature modify current law to provide for regular periodic review of the continued commitment of committed individuals, including review of the placement of the committed individual, without requiring the individual to request that review. B. The Legislature should modify current law to provide that the same adjudicatory body that makes the initial commitment decision, and any interim decisions concerning placement and continued commitment, conduct the review of continued commitment. C. Similarly the same screening unit that reviews initial commitment proceedings should review and provide a recommendation concerning both ongoing commitment and placement. D. The same panel of qualified commitment defense counsel that represents indigent persons subject to commitment proceedings at the initial commitment stage should represent committed individuals in the periodic review proceedings. E. The Task Force does not recommend any changes to the statutory criteria for such reductions in custody. Discussion Questions: 1. Should the current standards for a reduction in custody (transfer, provisional discharge, discharge) be changed? a. Should transfer out of secure treatment facility to a less restrictive, but still highly supervised, setting be a treatment program decision rather than a court decision?


October 23, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

b. Should the standard for discharge be changed to whether the individual continues to meet the criteria for commitment? c. Should the standard of proof for continued commitment be raised to clear and convincing after some set duration of civil commitment? 2. Should the current procedures for determining a reduction in custody (individuallyinitiated petition to the SRB and SCAP) be changed? a. Should the eligibility for a reduction in custody be considered at mandatory periods rather than when proceedings are initiated by the individual? i. Evaluation report by the treatment provider or by an independent panel? b. Who should determine whether a reduction in custody is granted? i. What role should be assigned to the review unit initially examining an individual’s need for commitment in assessment of current status and placement? ii. Should review of the individual’s eligibility for a reduction in custody be done by a centralized panel of district court judges or the district court that ordered commitment? c. Should the current procedures be retained in general, but be modified in particular ways (e.g., make it presumptive that a petition for reduction in custody by itself requires the county and/or commissioner to prove that commitment in current setting should continue)?