State ex rel. Harkavy v. Consilvio, 70.

Citation8 N.Y.3d 645,870 N.E.2d 128
Decision Date05 June 2007
Docket Number70.
PartiesSTATE of New York EX REL. Stephen J. HARKAVY, on Behalf of John Doe Nos. 13 through 22, Appellant, v. Eileen CONSILVIO, as Executive Director of Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, Respondent.
CourtNew York Court of Appeals


This is the second appeal to come before this Court concerning convicted sex offenders who were committed to psychiatric hospitals at the conclusion of their prison sentences. In State of N.Y. ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 (2006) (Harkavy I) we ruled that the State improperly used the involuntary civil commitment procedures in Mental Hygiene Law article 9 to transfer offenders directly from prison to mental health facilities and we directed that the Harkavy I petitioners be afforded hearings in Supreme Court to evaluate the need for continued commitment. Because the petitioners in this case were subjected to the same procedures we found inappropriate in Harkavy I, we reverse the order of the Appellate Division and remit this matter to Supreme Court. On remittal, petitioners are entitled to the procedural protections set forth in Mental Hygiene Law article 10—the new statutory scheme recently adopted by the Legislature governing postincarceration civil commitment of sex offenders.

In the fall of 2005, professionals from the Office of Mental Health (OMH) began to evaluate certain felony sex offenders nearing the completion of state prison sentences to assess whether they posed a danger to themselves or others and suffered from mental conditions that warranted commitment in a psychiatric hospital. The Harkavy I appeal involved a challenge to the admission of 12 sex offenders who were among the first to be transferred to OMH hospitals. Those petitioners were placed in the Manhattan Psychiatric Center, a nonsecure OMH facility. This appeal arises from the subsequent commitment, in November and December 2005, of 10 sex offenders to the Kirby Forensic Psychiatric Center, a secure OMH facility, pursuant to the procedures in Mental Hygiene Law article 9. Based on applications signed by prison superintendents and the certifications of two OMH physicians that each petitioner suffered from a mental illness requiring inpatient treatment, the petitioners were transported to Kirby upon the expiration of their sentences where each was examined by a third OMH physician who also determined that admission was necessary.

Petitioner Stephen J. Harkavy, Deputy Director of Mental Hygiene Legal Service, commenced this habeas corpus proceeding in December 2005 on behalf of the 10 Kirby petitioners.1 Petitioners raised arguments similar to those presented in Harkavy I—that their civil commitment pursuant to Mental Hygiene Law article 9 was not statutorily permissible. Because the commitment process was initiated before petitioners completed their prison sentences, they contended that they should have been afforded the procedural protections in Correction Law § 402, which requires that inmates serving prison terms be afforded notice and a precommitment hearing before nonemergency commitment to a mental health facility. In addition, petitioners objected to their confinement in Kirby, a secure facility, raising substantive due process, procedural due process and equal protection claims. Petitioners claimed that there was no statutory or medical basis for direct placement in Kirby and no adequate means for them to challenge their secure placement or obtain transfers to a nonsecure OMH facility.

In response to the petition, OMH asserted that it had concluded, based on its own experience, research findings and consultation with experts in other states, that patients who have a "demonstrated history of violence" against others, including those who have committed sex offenses, should initially be treated in secure facilities. According to OMH, the Harkavy I patients had been placed at Manhattan, a nonsecure facility, on a temporary basis because of a lack of space in the State's secure psychiatric facilities. Security was augmented at Manhattan to facilitate the receipt of the Harkavy I patients who were confined to a segregated ward with additional staff and a specialized security protocol. Nonetheless, OMH determined that nonsecure placement did not present the optimal environment for treatment of such patients. Rather, secure facilities such as Kirby, which have specially trained staff and perimeter security, afforded patients with histories of violence the best environment for rehabilitation, recreation and treatment therapies. OMH indicated that the petitioners in this case, who all have been convicted of sex offenses, were appropriately treated at Kirby because they met the criteria for secure placement and space was available at that facility.

Supreme Court conditionally granted the habeas corpus petition to the extent of ordering an immediate hearing for each petitioner, adhering to its prior holding in Harkavy I that petitioners' commitment under Mental Hygiene Law article 9 was improper and that petitioners should instead have been committed using the procedures detailed in Correction Law § 402. The court rejected petitioners' challenge to their treatment in a secure facility, concluding that the direct-to-Kirby placement was not per se erroneous.

The Appellate Division reversed and dismissed the petition, disagreeing with Supreme Court on the threshold issue of the propriety of petitioners' commitment under Mental Hygiene Law article 9. With respect to the placement of petitioners in a secure facility, however, the Appellate Division concurred with Supreme Court's conclusion that petitioners' constitutional arguments lacked merit. Petitioners pursued an appeal to this Court as of right on the constitutional issues asserted.

While this appeal was pending, we decided Harkavy I. At issue there was whether petitioners were appropriately committed under Mental Hygiene Law article 9 or should have been afforded the precommitment notice and hearing procedures extended to inmates transferred to OMH hospitals pursuant to Correction Law § 402. We recognized that neither statutory scheme had been specifically designed to address this class of mentally ill patients but concluded, "in the absence of a clear legislative directive in regard to inmates nearing their release from incarceration, ... that Correction Law § 402 is the appropriate method for evaluating an inmate for postrelease involuntary commitment to a mental facility" (Harkavy I, 7 N.Y.3d at 614, 825 N.Y.S.2d 702, 859 N.E.2d 508). We therefore determined, as a matter of statutory interpretation, that inmates transferred directly from a correctional facility to an OMH hospital on a nonemergency basis are entitled to the procedural steps outlined in Correction Law § 402, even if they are nearing completion of or have just completed their prison sentences. Because the Harkavy I petitioners did not have precommitment hearings, we remitted the case to Supreme Court to conduct the necessary hearings.

After the Harkavy I decision, the Legislature filled the statutory void, enacting a legislative scheme designed to address the civil confinement of certain classes of inmates completing their terms of imprisonment. The "Sex Offender Management and Treatment Act" (L. 2007, ch. 7)— which creates a new Mental Hygiene Law article 10—provides that offenders convicted of enumerated crimes, including sex offenses, may be transferred to psychiatric hospitals after their release from prison if certain procedures are followed. Article 10 establishes a multi-step process that may lead to the civil commitment of some offenders and the outpatient supervision and treatment of others.

Under the new statutes, inmates nearing the end of their prison terms who are found, after screening by OMH physicians, to suffer from a mental abnormality creating a predisposition to commit sex offenses and who have difficulty controlling their behavior are referred to the Attorney General for review (Mental Hygiene Law § 10.05). If the Attorney General pursues further action, a "sex offender civil management petition" is filed in supreme or county cou...

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    ...Art. 9; see also Mental Hygiene Legal Servs. v. Cuomo, 785 F. Supp. 2d 205, 210 (S.D.N.Y. Mar. 29, 2011); Harkavy v. Consilvio ("Harkavy II"), 8 N.Y.2d 645, 653, 870 N.E.2d 128 (2007). 6. Pursuant to the MHL, "a person who is a detained sex offender [is] suffering from a mental abnormality ......
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