The trial of George Pataki

Wednesday, July 31, 2013
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Sex offenders don’t get or deserve much sympathy, especially those who have committed the most serious crimes multiple times. But they still have a constitutional right to due process, a right that was clearly violated with an involuntary civil commitment policy ordered by George Pataki in 2005 when he was governor.

A civil trial is now wrapping up in federal court in which six convicted sex offenders who were kept for years in psychiatric facilities after their prison terms ended are suing Pataki and other state officials for tens of millions of dollars. They’re probably entitled to some compensation, but from the state, not its former officers.

The state currently has a law, as do some 20 other states, that allows for civil confinement of sex offenders. Now, one can question whether prevention detention — i.e. depriving someone of liberty indefinitely because he might commit another crime — is ever justified (and we believe it is with the most dangerous sex offenders). But at least the law, adopted by the Legislature in 2007, passes constitutional muster. It requires notice for the inmates before transfer to a psychiatric facility, hearings, a judge’s order, reviews of continued need for confinement, etc. In other words, due process.

Pataki’s plan, on the other hand, simply called for two doctors to examine all the worst sex offenders due for release, then order them held if they were found to have a mental abnormality that made it hard for them to control their impulses and, therefore, likely to offend again. That violated state corrections law as well as the U.S. Constitution, a state court ruled in 2006.

In the current case, the plaintiffs’ attorney argued in court that Pataki and the others knew the policy was illegal, or should have known it, at the time — indeed, that any reasonable person would have known. The judge agreed when he refused to give them immunity, which state officials usually get on policy issues.

Now it’s up to the jury to decide if the plaintiffs are entitled to compensation. If the answer is yes, the next question will be whether Pataki and company will have to pay personally or be indemnified by the state under the Public Officers Law. The standard there is if the official’s wrongful acts were intentional, as opposed to a good-faith mistake. We think Pataki’s actions in this case were an example of the latter.

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