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After years of unsuccessful efforts to authorize the civil confinement and strict post-release supervision of New York’s most dangerous sex offenders, Governor Eliot Spitzer signed the Sex Offender Management and Treatment Act (SOMTA) early in his first year in office. The statute took effect April 13, 2007 and made New York the 20th state with such a law. It authorizes placement of the most dangerous sex offenders in a secure treatment facility operated by the Office of Mental Health (OMH). For less dangerous sex offenders, it authorizes their placement in the community under strict and intensive supervision and treatment (SIST) by the Division of Parole and OMH, with violations of the terms and conditions of SIST orders possibly resulting in placement in an OMH facility.
Every new sex offender must receive a determinate (fixed) sentence of imprisonment, making that offender ineligible for discretionary release on parole. Each sentence must also include a period of post-release supervision that is much longer than for other offenders. A perpetrator of the class B violent felony offense of rape in the first degree, for example, will not only be subject to a potential 25-year determinate sentence of imprisonment, but also a separate period of post-release supervision that can be as much as 20 years.
SOMTA also created the crime of “sexually motivated felony” for underlying felonies committed for the purpose of sexual gratification, with the new crime carrying longer periods of post-release supervision than for similar crimes.
Collaboration and Oversight
SOMTA requires a close and collaborative working relationship among the Department of Correctional Services (DOCS), OMH, the Division of Parole, the Board of Examiners of Sex Offenders, the Office of Mental Retardation and Developmental Disabilities, the Division of Probation and Correctional Alternatives, the Office of Temporary Disability Assistance and the Division of Criminal Justice Services, which created a new Office of Sex Offender Management mandated by the new law. SOMTA also requires careful coordination with the Attorney General’s Office, which is responsible for filing all petitions seeking civil management for dangerous sex offenders. To ensure appropriate coordination among all the different entities, Governor Spitzer assigned Deputy Secretary for Public Safety Michael Balboni ongoing oversight responsibilities for the entire SOMTA process.
DOCS identifies all sex offenders covered by the statute who are scheduled for discharge from prison. For each case, DOCS ensures that all relevant records are provided to an OMH multidisciplinary team, and ultimately, a case review team for those inmates requiring further review. The Department also coordinates with OMH to ensure that the sex offender is interviewed by a clinician to assess dangerousness. For those offenders determined by the case review team to have a mental abnormality that predisposes them to commit new sex offenses, the Attorney General’s Office files petitions that seek civil management through a process of establishing probable cause and taking the case to a jury. If a jury concurs with the belief that the sex offender may pose a threat to society, the judge can then decide whether to confine the offender at an OMH-operated secure facility or place the offender under SIST in the community. Inmates screened out at either step of the review process are released in accordance with traditional release procedures.
As of the end of November 2007, courts had issued orders while petitions were pending authorizing the Department to continue holding 25 sex offenders in its custody even though their sentences of imprisonment had expired. As required by the law, another 33 sex offenders whose cases were pending were transferred to OMH after an initial probable cause hearing. Thus, a total of 58 convicted felons who are considered to be dangerous sex offenders and who otherwise would have been released into the community are instead housed in secure, institutional settings.
In addition, DOCS signed an agreement with the Division of Parole to place offenders ordered to SIST in prison-based Residential Treatment Facilities for up to 60 days in order to give the Division time to complete investigations of proposed community residences and linkages for the offender.
SOMTA significantly enhanced the caliber of the treatment programs DOCS must provide to all sex offenders, with the highest-risk offenders receiving two years or more of treatment – four times longer than the typical previous program. The expanded programs must aim to reduce the likelihood of reoffending by helping those inmates to control the chain of their own behavior that leads to sexual offending. The law also mandates that a number of such programs be residential, which requires that the sex offenders be housed within the same areas to provide clinically appropriate treatment in a more structured and controlled setting.
The law requires enhanced staffing in the form of licensed psychologists and social workers. DOCS has added more than 100 employees to meet that requirement, and has also developed an expanded and a more detailed treatment curriculum. Programs are being made available in most medium-security and some maximum-security prisons.
Sex Offender Counseling Program
The Sex Offender Counseling Program curriculum provides a basic, six-month, 24-week curriculum with a psycho-educational approach utilizing group counseling and relapse prevention plan models. The curriculum provides for a standard of 10-12 hours of group counseling each week for a total of approximately 260 hours. Where appropriate, the program has been expanded to six to 24 months. The program is based on a cognitive skills, group counseling, relapse prevention model which addresses risk, needs and responsibility.
Sex offenders are expected to demonstrate acceptance of responsibility for their sexual offending behavior, develop and demonstrate an understanding of their cycle of sexual offending behavior, and develop appropriate relapse prevention and intervention strategies.
Criteria to Participate in the Program
The offender is serving a sentence for a sex offense or an attempted sex offense.
The offender is serving a sentence for a non-sex crime, but there is evidence a sex crime or the attempt to commit a sex crime did occur in the course of the instant offense and is documented in the Pre-Sentence Report or other related documents.
The offender commits a sexually abusive and/or sexually assaultive act while incarcerated, whether against staff or another inmate, and is found guilty of that offense pursuant to a disciplinary hearing.
The offender has successfully completed the Sex Offender Counseling Program and subsequently relapses in some way significant to their sexually offending behaviors.
New Commitments With Sex Offender Program Needs
As of Jan. 21, 2007:
- 39 percent of 6,401 new commitments (2,493) were within two years of conditional release.
- 15 percent of new commitments (973) were between two and four years of conditional release.
- 63 percent of sex offenders had minimum sentences of at least six years.
- 45 percent of sex offenders had maximum sentences of at least 15 years.
- 70 percent had substance abuse program needs.
- 7 percent (448) were Spanish-language dominant.
- 100 percent had aggression needs.
- 58 percent had academic needs.
- 87 percent had vocational needs.
State of New York
Department of Correctional Services
1220 Washington Avenue
State Campus, Building 2
Albany, NY 12226-2050
Brian Fischer, Commissioner