Seeking confinement after time is served

Some in N.Y. want to allow holding sexual predators civilly in psychiatric hospitals


ALBANY, N.Y. -- For Vincent Scala, the debate over the civil confinement of sexual predators pits his personal beliefs as "a card-carrying member of the ACLU" against his family ties.

In June, Scala's cousin, Concetta Russo-Carriero, was stabbed to death as she walked to her car in the parking garage of a White Plains, N.Y., shopping mall. The homeless man arrested and charged with the crime was released in 2003 after spending nearly 24 years in prison for rape and being repeatedly denied parole.

Scala, a Manhattan criminal defense lawyer, believes that his cousin, who was 56 and leaves a husband and two grown sons, would be alive if the state Assembly had passed sex offender legislation proposed by Gov. George E. Pataki, a Republican, and passed by the state Senate. The legislation would set up a system, including a jury trial, for civilly confining sexual predators in psychiatric hospitals after their prison terms end.

"I'm a criminal defense lawyer and an ardent civil libertarian, but since what happened to my cousin, I have come to see the need for a carefully crafted civil confinement law that is mindful of civil liberties, while also protecting the public," Scala said.

His painful internal debate goes to the heart of an issue that has become an Albany hot button: what to do with violent sexual predators after they have served out their sentences. On Tuesday, a state Supreme Court judge ruled that the governor had illegally ordered the detentions of a dozen sex offenders in a psychiatric hospital without a required independent review of their cases.

The governor recently ordered that procedures used to confine the mentally ill be adapted to confine sex offenders. He made the move after the legislation he backed, which he has been trying to get passed for several years, stalled in the Assembly. Twenty-six men have been detained in recent weeks under the procedures for confining the mentally ill. Ninety-four sex offenders have been deemed ineligible by a panel of three state doctors.

Justice Jacqueline W. Silbermann of state Supreme Court in Manhattan said offenders had a right to independent hearings and examination by court-appointed doctors. The governor plans to appeal.

The legislation backed by Pataki is similar to the laws passed by at least 16 other states and the District of Columbia, which allow confinement of sex offenders even if they do not have what psychiatrists consider serious mental illnesses. The U.S. Supreme Court has upheld such laws as long as a sex offender is shown to have "a serious difficulty in controlling behavior."

State Republicans have used the civil confinement issue as the latest way to paint Democrats as soft on crime because Democratic Assembly leaders have not brought the legislation up for a vote. Jeanine F. Pirro, the departing Westchester County district attorney, whose office is prosecuting the Russo-Carriero case, made it the theme of the first radio spot in her campaign for the U.S. Senate.

On Thursday, Pataki chided the state Assembly on The O'Reilly Factor on Fox News. Asked by Bill O'Reilly whether he thought the Assembly's speaker, Sheldon Silver, was just "pure evil" for blocking the legislation, Pataki demurred, saying, "Not at all," according to a transcript.

"What he is trying to do is reflect the wishes of some of the people in his conference," the governor said. "And who they're protecting is beyond me."

Assembly leaders have said several laws have been passed in recent years to enhance sex offender registries and increase penalties for statutory rape and for repeated sexual offenses against children. The Assembly held hearings on civil confinement this year, and Charles Carrier, a spokesman for Silver, said, "We will have our proposal and advance that early next session."

"I don't think this issue deserves to be politicized," he added.

Assemblyman Peter M. Rivera, the Bronx Democrat who is chairman of the Assembly committee on mental health, said the measure would "laugh at due process rights."

"It will be well handled by some prosecutors and abused by others," Rivera said, adding that he had sponsored legislation to give sex offenders longer sentences.

Some psychiatrists question whether the mental health system should be used as a dumping ground for sex offenders. "The American Psychiatric Association said they were an abuse of psychiatry," said W. Lawrence Fitch, director of forensic services for the Mental Hygiene Administration in Maryland. "If the purpose of these laws is to make sure society is protected from dangerous people," he added, "there are other ways to achieve that end than pretending they are suitable for psychiatric treatment."

Fitch served on an American Psychiatric Association panel that examined the laws in the mid-1990s. According to one of his studies, of the 2,478 people confined in 2002 as sexually violent predators, 12 percent were diagnosed with serious mental illness.

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