Civil Confinement Violates Defendants’ Rights

There are currently several lawsuits pending regarding New York State’s civil confinement program, which allows for some sex offenders to be placed in psychiatric facilities against their will, even after they’ve served their full prison sentences. In the most recent suit, five patients filing together as a class action petition a federal judge to rule the program unconstitutional.

WGRZ asked noted defense attorney and constitutional lawyer Barry Covert to share his opinion on the civil confinement program. The full story can be found on the WGRZ website.

Debate over function of civil confinement

In a statement to Channel 2, the New York State Office of Mental Health defended the civil confinement program, saying that it “protects New York communities from dangerous sex offenders” and “provides high-quality treatment services aimed at reducing the risk of re-offense.” Mr. Covert sides with those being confined. He asks, “What is the difference between that and jail? There’s really none.” Mr. Covert went on to say that “it violates the defendant’s right to be sentenced, to serve that sentence and then, now that you have paid your debt to society, to move on with his or her life.”

In general, the United States Supreme Court has upheld civil confinement as long as it is used as mental health treatment and not as an extension of a prison sentence. According to Channel 2, lower courts have ruled parts of programs in Minnesota and Missouri as unconstitutional because of the low number of patients being released. This indicated that confinement, not treatment, was the focus of the programs. The federal lawsuits in New York are still being processed.

Patients subject to polygraph tests

WGRZ reports that the most current lawsuit regarding the program also alleges that it violates patients’ Fifth Amendment rights because the patients are made to take polygraph tests. The State Office of Mental Health maintains that the polygraph is being used as a treatment tool to help identify potential deviance and is not used to determine whether or not a patient should be released. Mr. Covert, however, reminds Channel 2 of the lie detector test’s shortcomings, saying, “The polygraph is not admissible. It’s not a reliable way of determining whether someone is being truthful.”

Civil confinement is treated as health care for the mentally ill and not part of the criminal justice system, which means that the patients’ cases are sealed. Because of this, Mr. Covert says, “It’s very difficult for us to determine what is happening in these proceedings if they’re not open to the public.”

About Barry Covert

Mr. Covert, a senior partner in Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area, is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; driving while intoxicated; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense. Mr. Covert frequently provides legal analysis for WGRZ and other media outlets.