State v. FarnsworthState v. Farnsworth
Emmett J. Creahan, Director, Mental Hygiene Legal Service, Utica (Margot S. Bennett of counsel), for appellant.
Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondent.
Pine, J.
At issue on this appeal is the constitutionality of
I
Effective April 13, 2007, the New York Legislature enacted the Sex Offender Management and Treatment Act (SOMTA) (
“[t]hat recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public” (
§ 10.01 [a] ).
The specified goals of the legislation were “to protect the public, reduce recidivism and ensure [that] offenders have access to proper treatment” (
In his Program Bill Memorandum, Governor Spitzer summarized the purpose of SOMTA:
“This bill enacts [SOMTA], which establishes comprehensive reforms to enhance public safety by
allowing the State to continue managing sex offenders upon the expiration of their criminal sentences, either by civilly confining the most dangerous recidivistic sex offenders, or by permitting strict and intensive parole supervision of offenders who pose a lesser risk of harm. Treatment is mandated during both criminal and civil confinement and during the period of strict supervision. It also creates a new crime of a ‘Sexually Motivated Felony,’ and provides for enhanced terms of post-release [sic] supervision for all persons who commit felony sex offenses” (Bill Jacket, L 2007, ch 7 , at 5; see also Senate Introducer Mem in Support, Bill Jacket,L 2007, ch 7 , at 19).
Pursuant to
“[A] ‘dangerous sex offender requiring confinement’ means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (
§ 10.03 [e] ).
At the same time that the Legislature enacted
II
The facts of this case are not in dispute and may be stated briefly. On June 20, 2005, respondent was convicted upon a plea of guilty of two counts of burglary in the second degree (
Respondent has a criminal history replete with evidence of sexually motivated offenses. At age 15, he sexually abused two eight-year-old boys in his neighborhood. At age 19, he was observed masturbating in front of young boys while at a YMCA, and he violated his sentence of probation by refusing sex offender treatment. When respondent was 21, he was arrested for trespassing at a church and daycare facility and was found to be in possession of a photo album containing the pictures of small children who attended the church and daycare. Shortly after that arrest, respondent engaged in the conduct that resulted in the burglary convictions. When arrested for the burglaries, he was located near a school where, over the course of several months, he had been observed watching the children.
“There is a strong presumption that legislative enactments are constitutional” (People v Knox, 12 NY3d 60, 69 [2009], cert denied 558 US —, 130 S Ct 552 [2009]; see
The due process challenge advanced by respondent concerns the procedure used to secure his commitment. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment” (Mathews v Eldridge, 424 US 319, 332 [1976]). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner‘” (id. at 333, quoting Armstrong v Manzo, 380 US 545, 552 [1965]). Due process, however, “is not a technical conception with a fixed content unrelated to time, place and circumstances” (Cafeteria & Restaurant Workers v McElroy, 367 US 886, 895 [1961], reh denied 368 US 869 [1961] [internal quotation marks omitted]; see Mathews, 424 US at 334). Rather, “[d]ue process is flexible and calls for such procedural protections as the particular situation demands” (Morrissey v Brewer, 408 US 471, 481 [1972]; see Mathews, 424 US at 334). The Supreme Court has held that
“identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail” (Mathews, 424 US at 335; see Mental Hygiene Legal Serv., 2007 WL 4115936, *4, 2007 US Dist LEXIS 85163, *13-14).
“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause . . . ‘It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection’ . . . We have always been careful not to ‘minimize the importance and fundamental nature’ of the individual‘s right to liberty” (Foucha v Louisiana, 504 US 71, 80 [1992]).
“‘The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement’ . . . Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed” (id. at 79; see Addington v Texas, 441 US 418, 425 [1979] [“civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection“]). The ultimate issue before us on this appeal is the appropriate standard of proof to be applied to the “backward-looking factual finding required for commitment” as a dangerous sex offender requiring commitment pursuant to
IV
The Supreme Court has addressed the due process requirements for civil commitment proceedings.
“In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual‘s interest in not being involuntarily confined indefinitely and the state‘s interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions” (Addington, 441 US at 425).
“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society
thinks he [or she] should have in the correctness of factual conclusions for a particular type of adjudication’ . . . The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision” (id. at 423, quoting In re Winship, 397 US 358, 370 [1970, Harlan, J., concurring]).
“Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants” (Santosky v Kramer, 455 US 745, 755 [1982]).
In addressing the due process requirements for civil commitment proceedings, the Court in Addington and Santosky relied heavily on its decision in Winship, wherein the Court addressed the standard of proof required in civil juvenile delinquency proceedings (397 US 358 [1970]). In Winship, the Supreme Court reversed the order of the New York Court of Appeals in Matter of Samuel W. (24 NY2d 196 [1969]). In Samuel W., the New York Court of Appeals had approved a preponderance of the evidence standard of proof for such proceedings based on the fact that the delinquency proceedings were not criminal and a delinquency finding was not the equivalent of a criminal conviction (Winship, 397 US at 365). The Supreme Court, however, recognized that the private interests at stake, i.e., loss of liberty and stigmatization, were the same in both criminal prosecutions and juvenile delinquency proceedings (id. at 363). The Court noted that “civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts” (id. at 365-366). Because the loss of individual liberty was as great for juvenile delinquents as for criminals and because the application of the higher reasonable doubt standard would not adversely impact the government‘s prosecution of the juvenile, the Court held that due process required the application of the higher, reasonable doubt standard (id. at 366-367).
Winship informs our analysis in this case because it involves the application of a due process analysis to a civil proceeding that results in the loss of liberty and significant stigma, and many cases addressing the due process standard required for sexual offender commitment statutes have relied on the Winship analysis (see e.g. Addington, 441 US at 423;
The Supreme Court has upheld civil commitment statutes that rely on a clear and convincing standard of proof (Addington, 441 US at 431-433). In upholding such statutes, the Court expressly noted that civil commitment statutes have layers of review and continuing opportunities for release (id. at 428-429). The Court in Addington juxtaposed criminal cases, where the inquiry concerning guilt is fact-based, against civil commitment cases, where the inquiry is whether the person suffered from a mental illness and, if so, whether the person presented a danger to himself or herself, or to others (id. at 429). The Court wrote that, “[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous” (id.). Indeed, the Court in Addington stated that the reasonable doubt standard functioned in criminal proceedings only because that standard was “addressed to specific, knowable facts” (id. at 430).
In Kansas v Hendricks (521 US 346 [1997]), the Supreme Court analyzed a civil commitment statute specifically focused on sexually violent predators. The Kansas statutes (
The Court in Hendricks was called upon to address whether due process permitted the commitment of those with a mental
V
As previously noted, we have found only one case addressing that specific issue insofar as it deals with
Judge Lynch recognized that for those individuals the proof of some or all of the elements of the underlying criminal offense would have to be established at the civil commitment hearing, where the standard of proof is the lower clear and convincing standard (2007 WL 4115936, *17-26, 2007 US Dist LEXIS 85163, *60-98). Judge Lynch analyzed Winship, noting that the Supreme Court “has made clear that a legislature‘s declaration of the civil nature of confinement may be overcome only where there is ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the state‘s]
With respect to those convicted of designated felonies before
Despite the fact that Judge Lynch questioned the constitutionality of applying the lower standard to those convicted of designated felonies before the effective date of
“somewhat anomalous to hold that a state may not civilly commit or subject to an extended treatment regime an individual who has already been convicted of a serious crime based on clear and convincing evidence that he [or she] is mentally abnormal and dangerous, along with the additional finding that his [or her] previous crime was committed with a sexual motivation” (2007 WL 4115936, *26, 2007 US Dist LEXIS 85163, *94-95).
Thus, for that narrow category of offenders who were convicted of designated felonies before the effective date of
In our view, the decision of Judge Lynch in Mental Hygiene Legal Serv. is well reasoned and discusses all of the relevant law on due process. We conclude, however, that he relied too heavily on a Winship analysis. It is true that a criminal conviction or conduct that would result in a criminal conviction if the offender were competent to stand trial are prerequisites to the application of
VI
As did Judge Lynch in Mental Hygiene Legal Serv., we will address the three factors set forth in Mathews.
The first factor is the private interests affected by the official action. Here, the most significant private interests affected are personal liberty and freedom from confinement. The Addington decision has established that those interests, while fundamental in nature, are subordinate to the interests of protecting society from those who have been deemed mentally ill and dangerous based on clear and convincing evidence (see 441 US at 428-429). Thus, there is no requirement that a person even commit a criminal offense before being deprived of liberty. The Supreme Court in Hendricks also permitted the application of a clear and convincing standard insofar as it concerned mental abnormalities or personality disorders not rising to the level of a mental illness (521 US at 356-360). In Hendricks, however, the Kansas statute required that all of the elements of the past sexually violent conduct be established beyond a reasonable doubt, and thus Hendricks does not stand for the proposition that the application of a lower standard of proof for those retrospective factual determinations is proper.
In our view, it is significant that the Supreme Court in Addington recognized that states could choose to impose a higher standard of proof but that a higher standard was not constitutionally required (see 441 US at 430-431). The Court recognized that “[t]he essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold” (id. at 431). While there is a minimum level of protection below which no state can go, the fact that some states provide greater protections does not require New York to do the same. Because the Supreme Court has upheld the application of the clear and convincing standard as a basis for the civil commitment of individuals and the deprivation of their personal liberty, we conclude that the first Mathews factor, the significance of the personal interests affected, does not mandate application of the reasonable doubt standard.
With respect to the second Mathews factor, the risk of an erroneous deprivation of the individual‘s private interests and the
With respect to that third factor, we conclude that the application of the higher standard would not seriously impede the State‘s goal of committing sex offenders who pose a threat to society because of their inability to control their behavior. The higher standard is applied almost exclusively to the other individuals who fall within the ambit of
Nevertheless, although New York could have imposed the higher standard of proof, the issue before us is whether New
VII
Like the District Court in Mental Hygiene Legal Serv., we cannot conclude that due process requires that all of the elements of a past conviction be established beyond a reasonable doubt, in view of the fact that the Supreme Court has held that an individual may be committed based on clear and convincing evidence that such individual is mentally ill and dangerous, without proof of any prior criminal conviction at all.
We acknowledge that the courts of the United States are split, and that the states with sex offender commitment statutes overwhelmingly provide for a reasonable doubt standard when addressing the retrospective factual determination. Indeed, we have provided citations to the statutes of some of those states.
We also note, however, that the federal statute and some states, including Minnesota, North Dakota, and Oregon, do not require any conviction and apply the lower clear and convincing standard (see
VIII
Based on the foregoing, we conclude that, while it may have been preferable for the Legislature to have imposed the higher reasonable doubt standard for all “backward-looking factual finding[s]” (Shields, 522 F Supp 2d at 330), due process does not require the application of that standard.
IX
We likewise conclude that the statute does not violate respondent‘s constitutional right to equal protection. A person raising an equal protection challenge must first establish the applicable level of scrutiny, which is determined by whether the statute involves a suspect class or interferes with the exercise of a fundamental right (see generally Affronti v Crosson, 95 NY2d 713, 718-719 [2001], cert denied 534 US 826 [2001]). We note at the outset that “[t]he Supreme Court has not squarely addressed the appropriate level of scrutiny to apply to civil commitment statutes” (Shields, 522 F Supp 2d at 340).
Respondent does not identify the suspect class to which he allegedly belongs or the fundamental right that is purportedly implicated. Based on the reasoning of Chief Judge Kaye in her concurring opinion in Grumet v Board of Educ. of Kiryas Joel Vil. School Dist. (81 NY2d 518, 534 [1993], aff‘d 512 US 687 [1994]), we conclude that respondent does not belong to a suspect class. We conclude, however, that
Where, as here, a fundamental right is implicated, then a statute “will be sustained only if it is narrowly tailored to serve a compelling state interest” (Hernandez v Robles, 7 NY3d 338, 375 [2006]; see Golden v Clark, 76 NY2d 618, 623-624 [1990]; Immediato, 73 F3d at 460). It is undisputed that New York State has a compelling interest in committing and treating those who are mentally ill and dangerous to themselves or others (see Matter of K.L., 1 NY3d 362, 370 [2004]; Rivers v Katz, 67 NY2d 485, 495-496 [1986], rearg denied 68 NY2d 808 [1986]; see generally Addington, 441 US at 426), and we conclude that
Because the statute survives under the strict scrutiny required when a fundamental right is implicated, the statute necessarily survives the lower level of scrutiny that would be required where, as here, no suspect class is identified (see Nordlinger v Hahn, 505 US 1, 10 [1992]; Affronti, 95 NY2d at 718-719).
X
Based on the foregoing, we conclude that respondent has failed to meet his “initial burden of demonstrating the statute‘s invalidity ‘beyond a reasonable doubt‘” (LaValle, 98 NY2d at 161, quoting Tichenor, 89 NY2d at 773; see Dalton, 5 NY3d at 255). Accordingly, we conclude that the order denying respondent‘s motion to dismiss the petition should be affirmed.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.