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Critics caution Spitzer on civil confinement



State legislators may not like Governor Eliot Spitzer' call for an end to gerrymandering, but they sure like his insistence on a civil-confinement law. The law would let the state send some sex offenders to psychiatric facilities after they serve their prison sentence. And when Spitzer endorsed it in his State of the State address last week, he got a standing ovation.

New York legislators seemed close to passing a confinement law last year, but they couldn't agree on who should decide which prisoners would be re-confined. It's likely that a proposal will be brought up in the new session.

Eighteen states have passed civil-confinement laws. But more than half regret the decision, says Stephen Harkavy, an attorney for Mental Hygiene Legal Service. Harkavy represented 12 men who successfully sued New York after former governor George Pataki had them held in psychiatric hospitals after they served their prison sentence. And Harkavy has been a panelist at several national mental-health conferences where civil confinement was the subject.

"Most of these states are trying to get out of the civil-confinement business," he says. "It is very, very expensive. The number varies, but the one I think is most reliable is somewhere around $300,000 per prisoner per year. They simply can't afford it. And just as big a concern: what does it accomplish?"

Confinement laws, proponents argue, are intended to protect the public from the most dangerous sex offenders. But it's not easy to identify which offenders are most likely to commit their crimes again. Data about risk levels and recidivism rates is sketchy. And mental-health professionals argue that the public's anxiety about sex offenders is largely unwarranted, since most of them respond to treatment.

Rochester-area Assemblywoman Susan John says fear is driving the political debate. Spitzer, she says, should take a hard look at the mental-health system as well as the state's prisons.

"It is hysteria," she says. "We all want our children to be safe, and nobody wants to be seen as not being concerned about our kids. But it is a very complex issue, and it's not just about safety for our kids. We have to ask ourselves if the role of a public official is to reflect public opinion, or is the job to evaluate real dangers and take the right steps to prevent them from happening."

Since the 80's, John says, New York has been filling its prisons with the poor, undereducated, and developmentally disabled --- people who are often convicted of crimes related to mental-health problems that were never treated.

"We've got to do a better job of splitting out those populations that need treatment, and how do we get treatment to them earlier," she says. "Right now, we are in a position where we need to bring more treatment into the prisons. The odd thing about the political dynamic is the Senate has passed a [confinement] bill over and over again that provides mental-health treatment for people who will never be released, and no treatment for people who will."

John, who favors longer prison sentences for the most dangerous sex offenders, says she thinks a civil-confinement law will be passed. But, she says: "I don't know where it will go. There is a big concern about making the same kind of mistake that was made with the Rockefeller drug laws. My concern is, we are ignoring the conversations we need to be having. Something is wrong when the three growth areas of the Upstate economy are health care, education, and prisons."

Donald Thompson, a Rochester attorney who has represented both sex offenders and victims of sex crimes, compares the push for civil confinement to a witch hunt. And he says he would advise Spitzer to avoid the politically expedient.

"A small percentage of offenders may pose a continued danger to the community," he says, "but no one has demonstrated any consistently reliable method of determining who falls within that category. This is a slippery slope. What's next? Robbers, murderers, drunk drivers? A percentage of them continue to pose a danger to the community."

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