Home » Articles » Four Years On: Civil Management of Sex Offenders In New York

Four Years On: Civil Management of Sex Offenders In New York

This month in 2007, then Attorney General Andrew Cuomo was tasked with breathing working life into New York’s Civil Management statute. With it, New York joined 20 other states in taking one of the most controversial and delicate legal steps possible in a liberal democracy- that of extending incarceration or strict probation for individuals with mental conditions that drive them to commit sex crimes.

The cocktail party description of the law is fairly easy to deliver.  Most candidates are men nearing release from prison for a previous sex conviction. The state Office of Mental Health has the onerous job of examining every one of them (thousands of men are released every year from NYS corrections for sex offenses), and they decide if the person qualifies as having a “mental abnormality.” Basically, that’s a mental illness or disorder that  drives one to commit sex offenses. For the few who make that cut, the Attorney General has the job of proving 1) that the person indeed suffers, and 2) that he needs to be either confined in a state hospital or supervised in the community. Ideally, a person remains subject to one or the other until a judge decides that he’s no longer a danger.

New York is both massive and diverse, and characterizing it as left-leaning or “defendant friendly” is an oversimplification. Nevertheless it’s not the most conservative of states, and there was and continues to be tremendous philosophical opposition to the law. Some claim it’s no more than additional punishment dressed up like treatment. Detractors point to its high costs, but more basically to what they see as the fundamental unfairness of telling a person who has done his time that, in fact, he’s got more time to do, albeit in a hospital environment rather than a prison. They also question whether a mental abnormality could ever be treated to the satisfaction of a judge with the responsibility of turning an offender back to the community. To them, it looks like a convenient life sentence waiting to happen.

These arguments deserve consideration, and I thought them through when I had the chance to serve in the Sex Offender Management Unit from its infancy four years ago this month. Civil management of offenders, when it’s done right, isn’t about right or wrong.  It’s about ill or not ill, and for a lifelong prosecutor that can be a challenging mental transition to make. Good and evil, the bookends of Judeo-Christian thought, may be unsatisfyingly simple to some philosophers, but they’re the compass of most U.S. prosecutors. And they give way to something more complex in the civil management realm. In the case of a person who is driven to rape, what drives him really isn’t his fault. But it’s not society’s either, and civil management is as much a quarantine function as it is anything else.

Of course, 1000 fair questions are begged here, from what “driven” really means to the very nature of free will.  Regardless, what concerned me was less the idea of the law than the process under which it would take shape. There are states where civil commitment has failed miserably because it was political red meat in a ‘get tough on crime’ atmosphere, but never supported well enough to be true to its stated goals.

There was no telling how it would play out in New York. A few respected colleagues warned me it was a bad career move, that the law was flawed in its inception and nearly impossible to enforce fairly or effectively.  In the end, though, I bet Cuomo’s office would be a good steward and that New York, despite and because of its big government nature, would be a place where the tricky business of civil management would at least be properly supported and also be done as honestly and fairly as humanly possible.

I was right.

Kevin Gagan, the former Manhattan ADA who took the reins out of the gate and brought me into the unit, remains one of the very best people I’ve ever worked with or for. He’s a hard charger but fair, deeply decent, and very smart. He also had a great nose for talent and assembled a team of litigators across 40,000 square miles that I view today as the single best collection of trial lawyers I’ve known personally or professionally. Our partners, OMH and Parole, worked honorably beside us and put heroic effort into maintaining not just the appearance but the reality of the ideals behind the law.  Our legal adversaries played their part and fought doggedly to protect and ensure due process for their clients, some of the most powerless and despised people imaginable. The nightmare scenarios of massive lock-ups and unending commitments haven’t happened, and for the most part the process works as it’s supposed to.

It isn’t perfect and it remains a work in progress. But when I consider that I took a chance with how my office and the rest of the state would implement this difficult, controversial social policy, I marvel at how lucky I got. Kevin has since moved on to higher office in state government, but the bureau he formed continues to thrive under solid new management and the leadership of a new AG. My friends and colleagues there continue their mission with as much integrity and competence as anyone could ask for.

The idea remains controversial and rightly so. It involves the most daunting legal questions we face: The rightness, let alone reliability, of predicting future crimes; the correct balance- there is none more crucial- between individual liberty and public safety; the inner-workings of the human mind. New York hasn’t perfected a response to any of these. But it had faith in its own institutions and the safety of the public at heart when it took the leap to answer them. It’s done damn well so far. Happy Birthday.


  1. I’m sorry, but I see no principled line between “imminent threat to himself and others” and “anyone out of the mainstream.”

    There’s no such thing as mental illness, or a sick brain as something different in kind from a normal brain. It’s all a matter of degree, with “mental illness” being a (very useful) way to categorize certain common kinds of abnormalities.

    But if we accept the proposition that the state can lock someone up because they are mentally abnormal in a way that could, at some unspecified point in the future, possibly cause harm to someone else, there’s no way to stop the government from locking up whomever it chooses.

    I’m sure a doctor who looked hard enough could find some aspect of my psyche that could be labeled as a dangerous disease if he looked hard enough. I’m sure the same is true for you, and for every single person on this planet. But we suppress those urges.

    Until we have specific facts that lead us to conclude there’s imminent danger, civil commitment tries to put a principled mask on what is, essentially, a guessing game. It throws our ideal “Better 10 guilty men go free than 1 innocent man be convicted” out the window, and replaces it with an implicit “Well, we think that a 67.43% success rate justifies the locking up of people who would have never committed a crime, so we’ll design the civil commitment procedures to hit that number.”

    Civil commitment is, I think, one of the scariest elements of modern law.

  2. Scott says:

    “There’s no such thing as mental illness”

    Always good to hear from graduates of the Tom Cruise School of Law and Psychiatry.

  3. Cate says:

    There is an alarming rate of recidivism in sex crimes. Looking after the mentally ill and criminally violent is an act of compassion and mercy. It is considered better suited to this crime than the death penalty for a bevy of reasons- the Eighth Amendment among them.
    This is an interesting way to reintroduce mental health facilities back into our consciousness. We are at a time when medication for behavior and mental health are losing there stigma. Those who seek out therapy and/ or medication are allowed to, rather than fear for their reputations and ability to remain employed.

  4. That’s a great point, Cate, and thank you for the comment. I agree- when done right (and that’s certainly not a guarantee) then civil management can be the best thing for the targeted offenders who suffer from whatever disorders.

    One thing is certain- there isn’t nearly enough support for dealing with mental illness on any level. As budgets tighten, the mentally ill almost always suffer in terms of services. They have little or no constituency unless they’re lucky enough to be closely related (then maybe) to a powerful legislator or political patron. Those mentally ill people who commit sex crimes are even more marginalized, more despised, more alienated, and more defenseless. It’s not an excuse for their behavior or an argument for not punishing them (when they are legally sane, anyway). But if the reality is that their behavior is the product, at least in large part, of a mental disorder, then it should be properly addressed. That’s expensive and requires a nuanced view of a group of people most of us don’t want to even believe exist. But they do, and we need to treat them correctly if we’re going to attempt to treat them at all.

  5. Dr. Pat Speck says:

    Quarantine is mentioned in the Bible, formalized in English law sometime in the 1600s, and now implemented in technically efficient tracking systems for things that could cause harm to populations of Americans. While used for millennia to protect the public from harm, quarantine continues to create heated discussion in the United States because the Constitution has guarantees. I don’t want to diminish the protection of the Constitution, but I would like to proffer another view. If one views intentional trauma and violence (particularly sexual violence) in a medical model of care, the act of rape/sexual assault is a threat to the public’s health for all the reasons in the literature today. If you believe the outcome literature, sexual crimes are responsible for loads of health issues in adults; therefore it is then the responsibility of governments and their programs to protect the public from harm and if injured, further disability.

    Quarantine laws insure fidelity to public health principles mandating protection of the public’s health. In fact, public health laws trump most other laws (Consider TB, HIV or syphilis). When sex offenders inflict intentional harm to populations of children, adolescents, or adults, and a cure for the offender is not possible (as demonstrated by evidence about the individual, their choices to commit crimes and resistant to treatment), quarantine is the only remedy. My worry is that innocent will be locked up and I am very sympathetic; however, the key to prevention of unlawful imprisonment is that legal, scientific, behavioral, and psychological scholars communicate and continuously review the evidence for incarceration and mandatory treatment. I support therapeutic intervention for recalcitrant criminals until they are trustworthy to enter society as judged by the experts (not judges). Even then, there should be clear guidelines about where they can locate and who they can encounter. Even the best dieter gives into their favorite candy once in a while.

    Thank you Roger for bringing up this important issue.
    Dr. Pat Speck

  6. Scott, it’d be nice to see you actually engage and demonstrate your reading comprehension abilities rather than simply looking for an opportunity to snipe.

    Cate, looking after those who need care is indeed an act of mercy and kindness, if they ask for it. Forcing “care” (which can often be not that pleasant — Roger, do you know whether the New York system employed things like shock therapy to the involuntarily confined?) upon those who don’t want it is an assault, not an act of compassion.

    If commitment is included in the statute at the time when the offense occurs, I wouldn’t have a problem with it. It would almost certainly be a better choice than normal imprisonment. But the idea that we can change our minds about someone’s punishment years after they actually committed their crime flies in the face of the principles of our criminal justice system.

    By the way, it’s hard to see this as anything other than an extension of punishment, since it only applies to those who have been convicted and are being newly released, and not to anyone who seems to fit the profile.

  7. Scott says:

    We allow people to be institutionalized at least temporarily if they are deemed to be an imminent danger to themselves and others. What’s your issue? That the law cannot do that? High-fallutin’ legal principles and slippery slope arguments aside, the “law” is an agreement between the members of society to keep everything from slipping into a Hobbesian mess. It doesn’t require us to act like idiots.

    “it’s hard to see this as anything other than an extension of punishment, since it only applies to those who have been convicted”

    Someone who has been convicted of pedophilia has a legally proven track history of being a danger to the most vulnerable members of society. If anything, it strengthens the argument that he may need to be institutionalized. If the shrinks think he still is a danger, and the general consensus of the shrink community is that pedophilia is nigh-impossible to cure (which is my general sense of the literature), then I don’t see how the law is required to spit him back out on the street.

    Mr. Canaff has been working real cases in this field for his entire professional career. Being a pragmatist, I have no issue with the state of New York hiring him and other experienced people to be part of the process of determining the potential threat of releasing pedophiles.

  8. Cate says:

    Andrew, I am afraid you are out of your depth commenting on medicine and mental health. These are not topics where generalizations and opinions suffice. There is a list of injuries and diseases that must be reported by a physician upon discovery. It is not an option exercised by the doctor nor is it an option presented to the patient after care is administered. These protocols are part of the law. In matters of public health doctors must be aggressive to protect others from suffering and the damage that comes with being sick and not knowing to seek treatment. In the case of a socially transmitted infection, a prescription is written for the patient and his or her partner- whether or not the partner is present at the doctors office or care center. If a patient presents with a gun shot wound it is reported to the police and investigated to make sure a crime hasn’t been committed.

    Decades have passed since mental health facilities were the norm. Most patients and their disorders were not understood or cared for. The warehousing and abuse that occurred in the bad old days is not what mental health care practitioners are striving for today. In the past 15 years huge strides have been made for hyperactive children, depressed moms, suicidal men, anyone with an eating disorder.
    For example: Electroconvulsive Therapy (ECT), is not administered the same way it was when it became popular in the 40s & 50s. ECT is considered a life saving treatment. Anyone referring to ECT as “shock therapy” knows too little about the modality.
    Mental illness that causes someone to rape results in a crime. Considering the high number of rape victims that commit suicide and the statistics on molested children that further the abuse by using drugs and alcohol, I think As a society we must do everything we can to understand the causes and do our best to prevent further damage.

  9. Pat, the distinction between acceptable quarantine and mandatory imprisonment of the type talked about here is that quarantines are based either on a verifiable fact of transmittable illness posing a risk to others, or is limited to a very specific time frame for determining whether someone is ill.

    Mental illnesses giving one a predilection to commit sexually aggressive crimes don’t fit that category. They pose an entirely speculative and controllable risk of harm to others at an unspecified point in the future.

    Consider, if you will, the closest medical analogy I can think of: people with sexually transmitted diseases. They pose a risk to others should they engage in certain behavior (unprotected sex). It’s likely (and statistically verifiable) that many will do so. Does that justify locking individuals diagnosed with AIDs up for the rest of their life? If you would say yes, I applaud your consistency, but I doubt you’ll find much support for that position.

    Scott, as I specifically said above, if there’s evidence that someone poses an imminent and specific risk to himself or others, we’re justified in locking him up. The mere diagnosis of a personality aspect inclining one to commit sexual crimes doesn’t prove any such imminent threat. If, say, someone diagnosed with a sexually aggressive disorder were released and became fixated on a certain individual and acted in a threatening way, that may be enough to support commitment as an imminent threat. But not before then.

    If society thinks that sexual predation is so impossible to cure, we need to make certain acts of sexual violence punishable by life in prison. We can’t come back after the fact and change our mind, without throwing out the rule of law.

    Cate, I don’t think any of the examples you’re citing are really relevant to this discussion.

    “In the case of a socially transmitted infection, a prescription is written for the patient and his or her partner- whether or not the partner is present at the doctors office or care center.”

    So? There’s no legal duty for the partner to take the medicine prescribed. There’s not even a duty for the person who goes to the doctor to abide by the prescription. If your doctor tells you to take a drug that you don’t want to take, you have every right to refuse.

    “The warehousing and abuse that occurred in the bad old days is not what mental health care practitioners are striving for today.”

    Of course it’s not what mental health care practitioners “are striving for.” But it’s not really relevant what they’re striving for. You’re never going to eliminate abuse in the system: the only way to get close is to recognize that we should provide and encourage treatment, but leave people free to exit the program should it not actually be acting in their best interests. Mental health professionals, just like prosecutors, don’t automatically become perfect people simply because of their choice of profession.

    “Mental illness that causes someone to rape results in a crime. Considering the high number of rape victims that commit suicide and the statistics on molested children that further the abuse by using drugs and alcohol, I think As a society we must do everything we can to understand the causes and do our best to prevent further damage.”

    How about: alcohol consumption that causes someone to drink and drive results in a crime. Considering the high number of DUI homicide victims, I think As a society we must do everything we can to understand the causes and do our best to prevent further damage by institutionalizing anyone who drinks and drives and who is diagnosed as having an above-normal inclination to drink.

    Yes, we should provide for treatment of the mentally ill. I’d be the last person to deny that. Treatment is almost always going to be more effective than imprisonment. But the idea that we can justify indefinite ex post facto punishment by compelling involuntary treatment flies in the face of the rule of law.

    First they came for those who had committed crimes, and I did not speak out because I had not committed a crime. Then they came for those who seemed likely to commit crimes, and I did not speak out because I didn’t seem likely to commit a crime. Then they came for the abnormal, and I did not speak out because I seemed normal…

  10. Scott says:

    Andrew, you keep using these slippery slope arguments about we’re all going to end up in the Gulag if we don’t let these guys go when they have finished their criminal sentences. I have never heard of any other group of criminals besides pedophiles being subject to an unusual law like this.

    My lay understanding of the science on pedophilia right now is that there is a certain section of offenders that cannot be easily cured and will almost certainly strike again. Perhaps Roger can share links to that effect. If you have knowledge that that is not the case, then please share. If it is the case, then I cannot accept that the Law (whatever that is) requires we turn pedophiles with poor self control loose without so much as a hearing.

  11. This link from the Center for Sex Offender Management (a Dept of Justice project) gives a concise and fairly comprehensive snapshot (with references) regarding both recidivism and treatment options for pedophiles: http://www.csom.org/pubs/recidsexof.html. The bottom line is that there isn’t a ton of hard evidence that treatment works, and in fact a fair amount of evidence that it really doesn’t. But we need to consider what “works” means. I tend to believe that pedophilia is simply a sexual orientation like heterosexuality or homosexuality (or whatever lies in between). If a person is oriented toward prepubescent children, I don’t believe he can be ‘cured’ of that orientation any more than I believe a gay adult or a straight adult can be ‘converted’ as some programs promise. So in general, I certainly don’t believe pedophilia can be cured or reversed, and I think most psychologists would agree. (As a side note, it’s important to remember that most people who offend against children are not pedophiles per se, meaning with that particular orientation toward small children sexually.)

    So while a cure is not likely, management of the behavior is more likely- and that’s where arguably some progress is being made. With regard to recidivism and management, the good news is that the outcomes are more hopeful then they have been in the past- and civil management can be a part of that. It’s generally agreed that a multifaceted approach the management of offenders works best. It’s expensive and time consuming, and it requires a great deal of buy-in from the offenders family (if any) his community, and other governmental institutions generally. Sometimes, balancing the safety of the community with the liberty interests of the offender, the management of that offender can occur in the community. When the danger is too great, confinement is an option in states that have it.

    Andrew’s view is that confinement equals punishment, period, so he tends to focus on the double jeopardy aspects of the law rather on the efficacy of either treatment or the quarantine function. It’s not an uncommon view, just not one I subscribe to. And I reject the analogy regarding AIDS sufferers because most, despite the danger they potentially pose by engaging in unprotected sex, can make the choice not to do so or at least warn potential partners. The issue isn’t the risk one poses; it’s how one can be trusted to manage that risk. I can be a tremendous risk to others right now if I get into my car and blindfold myself, or if I take a gun and start shooting into a crowd. I possess as much ability to harm others as anyone stricken with AIDS or anything else. The issue is whether I can be trusted by my fellow citizens not to put them at risk through my behaviors.

    One clarification: New York’s law and similar laws don’t restrict civil management of confinement strictly to pedophile offenders. A person can be a candidate for civil management who has only offended against adults as well, although as a practical matter he might not be focused on as much as an offender against children would be. It frankly depends on what criteria the mental health department is using to identify appropriate candidates as it passes the great majority (over 90% of offenders in NYS) onto release. For instance, a candidate might show a deviant arousal to non-consensual sex (this is usually described officially as “paraphilia, not otherwise specified: non-consent.” If this deviant arousal pattern is coupled with a serious drug or alcohol dependence issue that further hinders impulse control, he might be a good candidate. Conversely, a man who offended against a child or even several children may have made such progress in corrections and evince such mental stability and self control (along with some other factors the weight of which are too complicated to get into here) that he’s not considered an appropriate candidate.

  12. Scott, as Roger said, it’s not just pedophiles. At the moment it’s all sexual offenders. It’s hard to see how the same logic that justifies it doesn’t justify extending it to almost any class of criminals that has a high recidivism rate.

    “Andrew, you keep using these slippery slope arguments about we’re all going to end up in the Gulag if we don’t let these guys go when they have finished their criminal sentences.”

    Once you cede the right to the majority to imprison people according to a certain principle, it’s highly likely that they’ll expand their authority to imprison to the utmost limits of that principle. Most oppression starts under the color of the law.

    “then I cannot accept that the Law (whatever that is) requires we turn pedophiles with poor self control loose without so much as a hearing.”

    The “Law,” as you call it, is the Fourteenth Amendment to the United States Constitution.

    And, for that matter, we have given them a hearing: the sentencing hearing at the time they were convicted. A judge determined, under the law, the longest term that they could be legitimately imprisoned for. To go back and revise that decision after the fact undermines the rule of law.

    “will almost certainly strike again”

    This seems to be the heart of your argument. Let me ask you: what is the ratio of potential crimes prevented to years of imprisonment that you think justifies imprisoning someone without any evidence that they are an imminent danger to a specific person?

    If we, on average, prevent 1 crime per man-year of imprisonment, does that suffice? What about 1 crime per 10 man-years? 1 crime per 50 man-years? What is the point at which the potential to harm becomes small enough that prospective imprisonment isn’t appropriate? If you can’t give at least an approximate number, I don’t see how you can support your position.


    Roger: where a civil confinement procedure is so intimately connected to release from the penal system, it’s hard to see it as anything but an extension of punishment. But as I argued above, even the treatment or quarantine principles can’t support this type of imprisonment.

    If we say that the state can proscribe treatment – including imprisonment – for people with certain mental inclinations that make them more likely to harm others, where do we draw the line? Once you move past the imminent and specific danger standard, it’s all a numbers game. If you can justify imprisoning people for characteristics that present a 90% risk of causing harm to others over a certain time period, you can justify it for people who present an 80% risk. Or a 70% risk. Everyone’s going to hit a number that they think is too low, but there’s no principled way to make that determination, and that’s not an OK way to deal with something as important as liberty. (And, of course, if it’s not about punishment, there’s no principled way to limit it to people who have already offended when you compare them to people who have the same propensity to offend in the future.)

    Quarantines, on the other hand, can only be justified when we actually know that someone is likely to cause harm to others. A doctor can perform tests and tell you, beyond a reasonable doubt, that if a person interacts with people in normal daily life, they’ll transmit a deadly infection. An honest psychiatrist will tell you that there’s no way to know for sure that a particular patient will offend again. They can tell you that it’s likely, that it’s very likely, etc. But the human will is simply too complex – too able to control its inclinations in various ways – to say that someone is certainly a threat until they pose an *imminent, specific* threat to a certain individual or group.

    Let me close with this question: if these people have a mental illness that makes them so likely to commit a violent crime that it’s beyond their control, why were they imprisoned in the first place? Why aren’t they being immediately diverted to mental health facilities? Why is the state only recognizing the illness when it’s their last chance to keep the person in custody?

  13. Andrew, the short answer to your last question is that, most of the time, the mental abnormality that exists and that arguably drives the offending is simply not known at the time of the trial and sentencing. It doesn’t become apparent sometimes until long after, or during the civil management process.

    On a second note, the 14th amendment, as you know, restricts the states from acting against a person without due process. You may not agree with what underlies the process, but there is quite a bit of due process afforded respondents in a civil management or commitment proceeding.

    Finally, you can certainly argue that a numbers game exists when it comes to making judgments about whether to restrict the liberty of certain people given their risk to harm others. We do, in a way and somewhat unconsciously, assign a value to the amount of danger or risk we perceive. You’re correct that it involves less certainty that quarantine for an identifiable, infectious disease. But that doesn’t make the effort baseless, just difficult and risky. In your estimation, it’s too risky to undertake. And I grant you, it will never be a perfect process, any more than the criminal justice system is perfect. It comes down to something I am willing to administrate, understanding the risks and that due process is crucial. It is not something you would be willing to administrate, and I can respect that. Thanks for the dialogue- always good to hear your perspective.

  14. Roger — if the issue is merely that the mental illness wasn’t apparent at the time of conviction, I trust that the board demands that there be new evidence of mental illness – evidence that wasn’t available at the time of conviction?

    Due process demands an individualized inquiry based on facts, rather than generalizations about a group that the defendant belongs to, whether or not those generalizations provide a statistically accurate prediction of behavior. As you admit, decisions to lock someone up based on probabilities that they will commit crimes are a combination of a guessing game and an arbitrary determination of a cutoff line. That type of guessing and arbitrariness can never constitute due process.

    “But that doesn’t make the effort baseless, just difficult and risky. In your estimation, it’s too risky to undertake.”

    No, it’s not “too risky.” It’s a type of “risk” that the state is never entitled to take, any more than the state is entitled to take the “risk” of lowering the standard of proof in criminal trials to make it easier to convict criminals.

    A process such as this one, which necessarily contemplates and approves of the imprisonment of people who have not and will never harm others isn’t due process. Due process requires that every effort be taken to ensure that the final punishment only applies to those it is justified for, and cannot have inherent in it an acceptance of error.

    As always, I appreciate that you allow me to voice my opinion here, and I’m glad you post on such important topics, even though we often disagree.

  15. Happy to host your opinions, Andrew- you’re respectful and engaging. Quick points:

    -In terms of determining who, nearing release, is someone who has a “mental abnormality,” the issue is looking at the person closely (usually for the first time) from a mental health standpoint rather than a criminal justice standpoint. As a side point, remember: “Mental abnormality” (MA) is a legal term and a legal distinction, not a medical or psychological one. Often times (although not always), the mental disease or disorder that underpins the MA was not even contemplated at the time of the investigation and prosecution of the defendant. As I’m sure you know, if a person can be proven to have been legally insane at the time of a crime, he can’t be convicted for a criminal offense. Of course, a person can be mentally ill and still legally sane. So sometimes, we’re aware of a mental health issue surrounding a person at the time of the conviction. Sometimes we’re not. There are underlying mental disorders that can legally constitute a MA that don’t, for a variety of reasons, present themselves prior to or at the time of conviction. We only find out about them when we take a closer look, as civil management allows us to do, as the person nears release.

    -You state that this process “necessarily contemplates and approves the imprisonment of people who have not and will never harm others.” That is not accurate. Every single person who can be a candidate for civil management (in any state, not just NY) has to have already been convicted of a defined sexual offense of some kind. Whether they will offend again, of course, is not known. We can only speculate based on what we know of the individual and of offenders generally. But committed/managed persons are people who have, most definitely, caused harm already. Usually great harm.

    -You state that Due Process “requires that every effort be taken to ensure that the final punishment only applies to those it is justified for, and cannot have inherent in it an acceptance of error.” I agree with you in principle and in a larger sense, but the fact is our system of justice does, in fact, have within it an inherent acceptance of error. “Beyond a reasonable doubt,” our standard in criminal cases, does not mean “to a mathematical certainty” or “beyond all possible doubt.” We do the best we can, with the adversarial process and the rules of evidence as our guides, to administer and deliver justice as a society. We neither have nor claim guarantees. The same is true with civil management/commitment. We do the best we can to “quarantine” (at bottom) individuals who 1) have caused harm and 2) are likely- in our estimation- to cause it again because of a mental disease or disorder. That is the effort we undertake in civil management. And for the record, it most certainly does involve an individual inquiry based on facts- not just a generalization. Granted, the statistical likelihood to reoffend (thus a comparison of the individual to others) does come into play at a point in civil management litigation. But it’s much more than that- an entire and exhaustive examination of the candidate for civil management is done prior to and during the process.

    It seems to me that you don’t believe the state has the right to take on this considerable and difficult burden. We can only agree to disagree. No exercise of governmental power where citizens are concerned has within it a guarantee of no error. It’s all about line drawing in terms of what we are willing to do versus what we can legitimately claim to do fairly and accurately. It seems we would draw those lines in different places, which makes for a legitimate debate.

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