Testimony to:
NYS Assembly Standing Committee on Codes, NYS Assembly Standing Committee on Correction, and the NYS Assembly Standing Committee on Mental Health, Mental Retardation and Developmental Disabilities:

“Criminal Penalties and the Civil Commitment of Sex Offenders:
Whether Strengthening Our Existing Laws Would Ensure
Their Effectiveness in Making Our Communities Safer?”

September 20, 2005

Presented by:
Michael Seereiter
Director of Public Policy

Thank you very much for the opportunity to address the issue of “criminal penalties and the civil commitment of sex offenders.” In addition, we greatly appreciated the opportunity to participate in the Assembly’s round table discussion in July, which brought together individuals and organizations with varying points of view to discuss this topic. As an organization representing individuals living with mental health needs, dedicated to ensuring that public mental health policy is fair, just and promotes equality and opportunity, MHANYS has a unique perspective on this issue.

For many Americans living with, and recovering from, mental illness, the stigma associated with a psychiatric diagnosis can have as negative an impact on the lives of individuals living with mental illness as the illness itself. This stigma extends to the widely held, yet highly inaccurate, public perception that violence (including that of a sexual nature) is linked to mental illness. The media’s continuously stigmatizing portrayal of individuals with mental illness simply perpetuates this perception. In actuality, as research conducted by the American Psychiatric Association has shown, the vast majority of people who are violent do not suffer from mental illness, and violent behavior of persons with mental illnesses represents only a minor contribution to all violent crimes.

According to research now several years old from North Carolina State University and Duke University, people with severe mental illness are 2.5 times more likely to be attacked, raped or mugged than the general population. Among mentally ill women living on the streets, rape is so common that it’s often seen as normal. More recently, studies have show individuals with mental health needs to be as much as 12 times more likely to be the victim of a crime than the general population. This results in approximately one quarter of all individuals with serious mental illness becoming the victim of violent crime. As a result, we have a heightened concern about sex offenders and other violent criminals, and share the concerns of the District Attorneys and others who want to ensure that these dangerous offenders remain off the streets.

Therefore, we support the calls for extending the penalties associated with sexual offenses to ensure that those who are likely to offend again remain either in prison or on parole for longer periods of time, depending on the offense. However, we have concerns with the proposals to civilly commit sexual predators who are believed to remain dangerous and a threat even as their prison sentence expires.

First and foremost, it remains unclear as to where individuals who remain a threat even after serving their sentence would be placed under a system of civil commitment. One piece of legislation, passed by the NYS Senate, states that such individuals shall be placed in a “secure facility,” defined as a facility that may be located on the grounds of a correctional facility. We have serious concerns that under this construct, some individuals may instead be placed into existing facilities under the purview of the Office of Mental Health (OMH), known as psychiatric centers (PCs). PCs provide treatment to some of the most ill and vulnerable individuals living with mental health needs. We take great exception to any scenario that would permit patients in PCs to be placed at such risk.

In addition to our fears about placing sexual predators in PCs, it appears that despite the fact that some of these offenders have diagnoses that are found in the American Psychiatric Association Diagnostic and Statistical Manual IV R (DSM IV R), the vast majority of the expertise in dealing with this population of hard to serve individuals is based not in OMH, but within the Department of Correctional Services (DOCS). Legislation that would allow sexual predators who are considered a risk even after serving their sentences to be civilly committed under the purview of OMH would require either a significant shift in resources and personnel from DOCS to OMH or a serious allocation of resources and staff to OMH to handle this population of people previously dealt with in DOCS.

Third, it appears that the main thrust of such civil commitment legislation is to keep dangerous sexual offenders off the streets if they continue to remain a threat. In that vein, it makes sense that this should be accomplished in the most financially efficient manner possible. Current estimates on the cost of keeping an individual in prison are about $30,000 per year. This must be contrasted with some of the known costs associated with caring for an individual in a psychiatric center. We must look no further than the Community Mental Health Support and Workforce Reinvestment Program (§41.55 MHL), which takes resources previously used for operational costs within the state-operated inpatient psychiatric system and directs them to community-based mental health services upon the closure of inpatient beds, for evidence that this is more costly. The statute specifically states that upon the closure of a bed, no less than $70,000/year shall be reinvested into community-based services. It is likely that the operational costs associated with an inpatient psychiatric bed exceed the statutorily identified $70,000 to something closer to $100,000 per year. It is important to consider that this does not take into account any capital costs associated with inpatient psychiatric care, especially given the large outstanding debts that remain on many psychiatric centers.

To reiterate, MHANYS supports the calls to keep sexual predators off the streets, especially given the higher likelihood that individuals with mental illness will be the victims of such crimes. We believe that this can be accomplished through increased sentences and elongated parole. And if the Legislature does decide to pass civil commitment legislation, we strongly urge that such sexual predators be kept within the prison system where they can do no harm to patients in PCs.

However, there is more that the state can and must do for people with mental illness to help prevent them from becoming the victims of such heinous crimes. Continued funding and greater expansion of community-based public mental health services must be of the highest priority to reduce the number of people with mental illness who are so often the victims of violence, helping individuals who have become victims recover from such trauma, and assist the small subset of people with mental illness who are at increased risk of violent behavior.

Therefore, as the Legislature and Governor consider legislation aimed at containing sexual predators, we also urge you to enact Timothy’s Law to provide appropriate access to the mental health treatments and services that will help individuals living with mental illness recover, thereby reducing the number of people most likely to be the victims of such heinous crimes.