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The Move to Expand DNA Testing


Governor Eliot Spitzer’s proposal to greatly expand the state’s database of DNA samples along with the exoneration last week of a New Jersey man who served 19 years in jail for the gruesome murder of two children has reopened debate about the use of a technology that could fundamentally change how justice is administered in New York City.

Spitzer wants to require testing of all individuals found guilty of felonies or misdemeanors, in state prison or on parole or probation, while making it easier for defendants to use DNA sampling to prove their innocence. In attempting to pass legislation that has been blocked several times in recent years by the state Assembly, Spitzer seeks to emphasize the role that DNA testing can play in freeing the innocent, as well as in fighting crime. It’s a powerful combination, given recent high-profile wrongful conviction cases, such as Alan Newton of the Bronx, freed by DNA sampling after serving 22 years on a rape charge, and Scott Fappiano, erroneously imprisoned in 1983 for the rape of a Brooklyn woman, that have rocked New York’s criminal justice community.

The legislation includes measures that make it easier for defendants and judges to request DNA testing. It would also create a state office to examine wrongful conviction cases in New York State and propose reforms.

Spitzer’s bill has the support of Brooklyn Democrat Joseph R. Lentol, chairman of the Assembly’s committee on criminal justice issues. Other prominent players, such as Assembly Speaker Sheldon Silver, and Barry Scheck and Peter J. Neufeld of the Innocence Project, which has used DNA testing to free 23 wrongfully convicted New Yorkers, have not yet announced a position. The New York Civil Liberties Union has come out against the bill, citing concerns about the state’s ability to set, and enforce, consistent rules for the storage and processing of DNA materials.

Passage of the legislation would have a dramatic impact on New York City, which has invested over $250 million in a state-of-the-art forensic laboratory in Manhattan. Mayor Michael Bloomberg and his police commissioner, Raymond Kelly, enthusiastically support Spitzer's proposal. In the past, Bloomberg has argued for expansion of the state’s DNA sampling program on the grounds that many people who commit minor crimes also commit more major offenses and so that having DNA from so-called “petty criminals” would help solve bigger cases. He and Kelly have argued that the state’s existing restrictions on DNA sampling restrictions hurt the city’s ability to use DNA to reduce crime rates even further.

Regardless of the bill’s prospects for passage, DNA testing – only a little more than two decades old – offers a potentially transformative crime fighting technology. What may be less clear to New Yorkers are its benefits and drawbacks.

A NEW TOOL

Deoxyribonucleic acid, or DNA, is a molecule that can be found in all cells and is left behind in blood, saliva, sweat, semen, hair and skin, biological evidence that can often be found at crime scenes. DNA testing was developed by geneticist Alec Jeffreys of Leicester University in England in the early 1980s. He discovered that DNA could be used to isolate a “genetic marker” unique to each individual.

Jeffrey’s new technique was employed almost immediately to help solve two notorious rape and murder cases in the nearby countryside. After a 17-year-old confessed to one murder but not the other, the police asked Jeffreys to conduct a DNA test of the suspect. It revealed that he had given a false confession – making him, in Jeffrey’s recollection, “the first man ever proved innocent by molecular genetics.” The police then took blood samples of over 5,000 men from the nearby community and stumbled on the real killer when he was overheard bragging about getting a friend to submit a substitute sample.

NEW YORK’S DNA PROGRAM

Launched in 2000, New York’s DNA database holds 250,000 samples. Spitzer's proposal would immediately add 50,000 samples from prisoners, probationers and parolees, while hundreds of thousands more would be added over time from a broader array of newly convicted offenders.

The database is currently divided into two sections, a Forensic Index, which contains DNA samples taken from crime scenes, and a Convicted Offender Index. Supporters of DNA testing hope to collect as many samples of individual DNA as possible to compare to DNA taken at crime scenes. According to their logic, the likelihood of a crime scene “hit” goes up if there are more DNA samples in the Convicted Offender Index. The testing itself is quick and simple: Just a cotton swab dabbed at the individual’s mouth

At first, sampling in New York was limited to individuals convicted of sex crimes and some other felonies, but the law has since been amended to cover many more offenses. Currently, about half of all individuals convicted of a crime in New York are required to contribute a DNA sample. Spitzer’s legislation would extend testing to all convicted felony and misdemeanor offenders, though it would not include individuals who plead guilty to lower-level violations such as disorderly conduct. In addition, 50,000 samples from state prisoners, as well as individuals on probation and parole, would be added to the database.

A NEW TOOL FOR POLICE

Since it was introduced in New York, DNA sampling has emerged as an important tool in hard-to-solve cases like burglaries, in which, according to the New York Times, arrests are made in only about 15 percent of reported offenses. In 2004, a pilot program launched in Queens called Biotracks, which netted 23 suspects tied to 34 burglary cases in a nine-month period, according to the Times. It led to the arrest of one man, Robert Medina, who pled guilty to five burglaries after DNA on a scarf he left at a crime scene was matched to a sample taken from him after a previous felony arrest.

The same procedure can be used with sex offenses, which are also difficult to solve. In a recent case, DNA from a Queens man convicted on a drug-related charge was matched to a sample saved from a rape kit that included a taunting note left for the victim. As a result, he was found guilty of first-degree rape and second-degree burglary.

Speaking in 2006, Police Commissioner Kelly asserted that DNA testing had led to the arrests of 210 sex offenders. New York City. The technology spurred the elimination last year of the state’s five-year statue of limitation for rape cases.

Perhaps the strongest case for expansive DNA sampling comes from England, which, in the last decade, has embarked on the world’s most aggressive DNA gathering effort. The country’s DNA database maintains over 4 million samples, covering about 6 percent of the population, more than ten times the rate at which DNA samples are collected in the United States. The database has yielded close to 3,000 crime scene matches per month, according to NewScientist.com, including “hits for 15 murders, 45 rapes and sexual offenses and 2,500 car, theft and drug crimes.”

At the same time, DNA sampling can help prove the innocence of individuals wrongly convicted of a crime. The Innocence Project, which uses DNA to try to win the release of the wrongfully convicted, has helped exonerate 201 individuals in the United States, and 23 in New York State. Most recently, DNA testing was used to exonerate Byron Halsey, the New Jersey man who had served 19 years in jail for the murder of the seven and eight-year old children of Halsey’s girlfriend. DNA testing instead implicated a neighbor who had testified against Halsey during the trial. In a statement that shows the powerful impact of DNA, the victims’ mother said, “I knew Byron loved Tyrone and Tina. It didn’t make sense to me that he could have done this. I always had my doubts, but I didn’t know what to do about them. I am thankful that the DNA testing has identified who really did this to my children and that Byron is being released today.”

THE CIVIL LIBERTIES ISSUES

But along with its promise, any tool as powerful as DNA is bound to raise concerns as well. Some fear the technology can be misused, that DNA sampling is a slippery slope that will inevitably extend beyond a relatively small number of convicted offenders.

For evidence, some civil libertarians point to Britain. While the Spitzer proposal extends testing only to those convicted of crimes, however minor, in the United Kingdom the police take DNA samples from all those arrested. Since 2001, they can retain those samples even when the arrest results in an acquittal. And in 2004, the police received the authority to collect DNA from suspects, an even lower threshold than arrestees. The country’s database also includes samples from children under the age of 16, including two 12-year-old children who gave a DNA sample after they were accused of damaging a tree they were using to build a tree house.

While the large number of samples makes it more likely that police authorities can make a “hit” to DNA recovered at a crime scene, keeping samples from innocent people arguably violates the legal principle of “innocent until proven guilty.” As one civil libertarian said, “If your DNA is on the database it means that you are forever an automatic suspect for any crime in the future.”

Those who tend to dismiss arguments often draw an analogy to fingerprints– the criminal justice antecedent of DNA sampling. They are widely collected in the United States, private companies and government agencies use fingerprinting for security purposes, and consumers may soon be able to “unlock” cell phones, laptops and even their homes with fingerprint censors.

Why should New Yorkers be any more concerned about DNA sampling than they are about fingerprinting? One argument is that the information in a DNA sample is much more detailed, containing clues about an individual’s health and ethnicity. In the future, it might offer clues to an individual’s propensity to violence and criminal behavior. In light of this, some critics fear a science-fiction world where DNA sampling could convict individuals before they even commit a crime. Even Alan Jeffreys, who created DNA sampling, has been quoted saying that “as a geneticist I would greatly value the potential enormous power of the database for research, but it’s a gross infringement of civil liberties.”

MANAGING THE EVIDENCE

A less abstract argument raises the issue of whether the state’s already overburdened crime laboratories will be able to handle the increased numbers of samples. If not, evidence could be lost, mislabeled or used inadvertently to make false matches. In a press release critiquing the legislation, the New York Civil Liberties Union focused on what it calls the lax regulation of the state’s DNA laboratories. “Expansion of the databank will overload crime labs and undermine effective criminal investigation,” the statement said, and lead to “large backlogs in the processing of samples [that will] significantly delay the identification and apprehension of violent felons.”

In an op-ed published in June 2006 entitled “Think Before You Swab,” New York state Senator Thomas Duane raised a number of similar issues. He also asked whether an expansion the DNA database could lead to diminishing returns, citing statistics provided by the Division of Criminal Justice Services that fewer DNA “hits” resulted from expansions beyond a small number of felons. “Does [that] signal that adding genetic material from people convicted of lesser crimes has no positive impact?” Duane wrote. “Moreover, is it possible that increasing the number of samples will so overtax the system that the database will actually be less effective?”

It’s perhaps telling that the New York Civil Liberties Union centered its critique on the effectiveness of DNA sampling. The group may well have calculated that DNA sampling, which promises to solve crime and free the innocent at the same time, is too politically popular to take on directly. Or perhaps it shows an underlying confidence that the United States, which has a stronger tradition of civil liberties than Britain does, will be able to navigate the thorny trade-offs between exploiting the full potential of DNA sampling and protecting privacy rights.

In any case, one issue that DNA proponents and critics appear to agree on is the need to improve the state and city’s ability to process and analyze DNA, as well as other crime scene materials. Unfortunately, criminal justice authorities do not have a great track record on this score. Bronx resident Alan Newton, who served 22 years in prison for a rape he did not commit, is a good case in point. For a decade, police officials insisted that they could not find a rape kit that would allow for a test against Newton’s DNA. The kit, held in an enormous Queens warehouse along with over one million pieces of evidence, was finally found in its original 1984 storage bin.

Or take the example of Scott Fappiano, who spent 21 years in jail on a wrongful conviction for rape because key evidence was found only after an intensive two-year search. “It’s appalling that 21 states around this country have enacted preservation statutes for biological evidence, but New York has not,” the Innocence Project’s Peter Neufeld has said

Given that record, the key to ensuring public support for expanded DNA sampling may rest in more in New York’s ability convince the public it can use the technology effectively and responsibly than in the technology itself.

Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime.

 

Upholding the Cell Phone Ban


The New York City Department of Education’s ban on cell phones in all public schools has been upheld in a decision of the state Supreme Court.

Regulations on discipline in schools, established by the chancellor of the New York City Department of Education, forbid students to bring a variety of dangerous objects such as knives, guns, and box cutters into any school building; among the prohibited articles: cell phones.

Despite opposition efforts to limit the ban to the use of cell phones in schools rather than mere possession, an acting justice upheld the total ban as well as the department’s power to impose punishment including confiscation of phones. Students who attend schools the department considers particularly dangerous go through metal detectors that can find the phones. But all students, even those in schools with a rather low incidence of discipline problems, are subject to search by magnetometers and roving metal detectors that go to different schools every day.

FAMILY RIGHTS, CHANCELLOR’S PEROGATIVE

The Chancellor’s Parents Advisory Council and eight parents contend in a lawsuit known as Price against New York City Department of Education, Mayor Michael Bloomberg et al, that their children’s safety is threatened by not being able to carry phones, which the parents characterize as a "lifeline" to call for assistance while traveling to and from school, at after-school activities or athletic events. or in case of a public emergency or disaster. The parents agreed that the use of phones in schools is undesirable, but argued that banning their use, rather than their possession, would adequately meet the chancellor’s objectives.

The petitioners had argued that the rule eroded the constitutional rights of parents and children to make family decisions. Because of that, they said, the rule’s purpose must be examined with heightened scrutiny.

David Leichtman, a partner at the law firm of Morgan Lewis, along with civil rights attorney Norman Siegal, is representing the petitioners pro bono, says, "This is not a case about cell phones. It is about who is responsible for the safety of our children before 9 and after 3. The chancellor’s authority ends at the school door," Leichtman argued. "The mayor’s policy that we are challenging deprives the 1.1 million most vulnerable kids of New York City of their safety."

Siegal, describes the rule as "an intrusion into the relationship between parents and their children," and argues that government must show that it has an essential interest, if they are going to be permitted to interfere with that relationship. The lawsuit contends that there has been no such showing to support infringing on "the care, custody, and control of petitioners’ children."

For its part, the Department of Education contented that that anything education-based is beyond the court’s powers of review. The court rejected that argument as “frivolous.”

But then when Judge Lewis Bart Stone went on to consider the challenges to the cell phone rule, he found that, contrary to the parents’ claims, the ban was neither arbitrary nor unconstitutional. The court concluded that its function was to determine whether the promulgated rule was rational, and found that it was.

CELL PHONE AS ‘LIFELINE’

The petitioners all have children in middle school or high school and live in various parts of the city. The students travel by subway and bus to distant schools, often in other boroughs. Court documents detail allegations of risks to children who do not have cell phone "lifelines," and problems averted when they did have phones.

Raven, the 9 year old daughter of Isaac Carmignagni of Queens, was locked out of school before her adult escort arrived to pick her up, but was able to call her father on her cell phone.

Named petitioner, Camella Price, a single mother who is chief of staff for a New York state senator, knows that her two young daughters are subject to school searches by roving metal detectors. Still, she has instructed them to continue to carry their cell phones to school, turning them off during class. Prior to enforcement of the ban, her younger daughter at 11 was beaten up on her way home from school and was able to use her cell phone to call for help.

Beth Berenbaum described in a letter to Chancellor Joel Klein, that her son, a high school freshman travels from Staten Island to Manhattan’s LaGuardia High School by ferry and train, calling his mother at work in New Jersey when he reaches his destination. Responding to her letter, the chancellor’s office said, "It is the experience of many of our principals and teachers that if phones are allowed into school buildings, they will be used inappropriately. ... Aside from simple disruption, students have used cell phones for far more serious offenses. In the past, for example, students have used cell phones to rally support during fights, to cheat on exams, and to take illicit photos of school work or people. ...All of these situations negatively impact the learning environment and cannot be tolerated."

Other examples of the usefulness of the phone include:

--a description of September 11, 2001, when cell phones provided the only means of communication.

--a 12 year old calling her mother from a cell phone because a man was following her from her bus stop.

--a student using a cell phone to find out how to get home after the youngster’s regular train station was evacuated due to fire.

Carmen Colon detailed her 10 year old son’s commute of one and a half hours each way from his Brooklyn home and the need for him to coordinate his travel arrangements with his two older brothers.

WHAT THE JUDGE FOUND

While the court did not take any position on the issue itself, other than his deciding that the Department of Education’s action is rational, the judge issued a lengthy decision containing expositions on procedural technicalities and personal philosophy along with a section labeled, "What is a cell phone?" Judge Stone, who normally hears criminal cases, made numerous references to infractions, discipline, security, magnetometers and cited his own experiences, commenting, "the Court has regularly observed that a ban on use does not always assure that cell phones do not ring in the courtroom at inappropriate times and cause disturbances. However, when they do, the Court, unlike a teacher in a classroom, has the benefit of armed court officers to enforce the use ban and to assure the restoration of order."

The decision rejected two amicus curiae briefs. These are offered to a court by interested groups or individual "friends of the court," who are not actual parties to the lawsuit, but seek to impress an expert point of view, or an argument not presented in the main litigation. But, the judge wrote, "Some of those claiming to be amici are really enemies posing in friend’s (sic) clothing. ... Each ill-considered amicus application puts an unnecessary and unwarranted burden on the Court, as such application must be read and addressed, if only to be rejected."

One of the rejected amicus briefs was offered by the United Federation of Teachers on behalf of classroom teachers, who said that, from their unique perspective, the phones are not disruptive.

In discussing the teachers’ role, the judge, who did eventually accept an affidavit from teachers union president Randi Weingarten, decided contrary to the teachers’ position. "Any enforcement system focusing on use, rather than possession, requires teachers, rather than only security personnel at the school door, to observe and enforce the ban and become involved in confronting students and punishment decision, in detriment of their pedagogical mission,” he said.

ROOM FOR COMPROMISE?

The petitioners have informed the education department that they would agree to have the phones parked in lockers. It appears, though, that most schools in this city do not have lockers for coats or sneakers, let alone cell phones. However, the city has issued a request for proposals from the private sector to install, commercially and off school premises, special lockers in which to place cell phones on a daily, paid basis.

In the meantime, lawyer Leichtman said , "We don’t see what the big deal is. Mayor Bloomberg is making a mountain out of a molehill." He said his clients "have a firm belief in the way they need to raise their children, and that it is not the schools’ business."

The petitioners and the lawyers are "seriously looking at an appeal," according to Siegel. Efforts to reach the attorneys who appeared on behalf of the city’s Corporation Counsel were unsuccessful.

Emily Jane Goodman is a New York State Supreme Court Justice 

Criminal Justice Under Eliot Spitzer


With four family members in prison, Andrea Johnson spends $100 every two weeks on collect phone calls from correctional facilities. So she was pleased that, soon after taking office, Governor Eliot Spitzer made changes that will cut her bill in half.

Johnson hopes this is an indication that Spitzer will look to make further reforms to the state's prison system where her husband, two brothers, and a brother-in-law are serving time.

"What happens when they get released? How do we approach that?" asked Johnson, whose husband comes up for parole in June. "Not through phone calls."

The governor has inherited a system that is in flux. There are about 63,000 men and women in the state prison system, down significantly from the peak of 71,000 in 1999. As crime has largely been brought increasingly under control, New York's prison system has shrunk. Experts across the political spectrum see a need to spend more time responding to the issues surrounding the 25,000 inmates being released each year than to locking up more and more people.

Spitzer's rhetoric echoes the tough on crime mantra that has become dominant over the last several decades, and he made it a priority to pass one of the country's harshest laws regarding sex offenders soon after taking office. But there are also signs that he is willing to challenge some of the pillars of the state's criminal justice policy, by rethinking sentencing, focusing on services and reentry, and even reducing the size of the overall prison system.

New York is not the only place that is changing course on policies regarding crime and punishment. But it is providing grist for advocates who want to move away from some of the dogma of the last several decades.

"We are the fastest shrinking prison system in the country by far and also happen to have the largest crime decline in the United States," said Michael Jacobson of Vera Institute of Justice, a criminal justice think tank. "Those are nice things to have go together. You can obviously have fewer people in prison and more public safety at the same time."

SHIFTING WINDS ON CRIME

Thirty-four years ago New York State was at the forefront of a national shift that laid the basis for a decades-long trend toward harsh sentencing, an official rejection of "coddling" prisoners with rehabilitative services and a surge in the prison population. Governor Nelson Rockefeller signed legislation creating mandatory minimum sentences for certain drug crimes in 1973, the first such laws in the country. These Rockefeller Drug Laws were the first salvo in the War on Drugs, a campaign during which the worst thing a public official could be was "soft on crime."

This philosophy on criminal justice was bipartisan. New York State's prison explosion came under Democratic governor Mario Cuomo. The prison population more than doubled under his watch, then continued to rise under Governor George Pataki. Between 1982 and 2000, New York State opened 38 prisons, more than in the previous 150 years.

In recent years, however, growth in the national prison population has slowed as crime rates became significantly lower than they were in the 1980s and 1990s. Meanwhile, hundreds of thousands of prisoners re-enter society every year. This has been especially true in New York, whose prison population has shrunk 12 percent since the peak in 1999 (although the most recent numbers show a slight uptick fueled by rising crime rates upstate).

This shift in the shape of the criminal justice system has also changed the way that public officials think about the issue. Lower crime rates have brought down the fever pitch on being tough on crime. There has been a bipartisan push, for example, to re-evaluate drug sentences that punish offenses related to crack cocaine much more harshly than those involving powder cocaine.

Reentry and education programs that were once seen as the bastion of softheaded liberals are now being championed by officials across the political spectrum. Senator Sam Brownback is a particularly striking example. Brownback is preparing a 2008 presidential run as the voice of the conservative wing of the Republican Party; in 1994 he called Newt Gingrich's Contract With America too moderate. But last year he spent a night in a prison and addressed inmates as he pressed for the passage of the Second Chance Act, a bill that aims to ease prisoners' re-entry into society.

A NEW APPROACH TO CRIMINAL JUSTICE IN NEW YORK?

People in the criminal justice field in New York felt the ground shifting from the moment Spitzer took office.

For years, the state has made millions of dollars from phone service between prisoners and their loved ones through a deal in which it charged a commission for each call. In 2005 alone the state made $16 million from these charges. These calls, meanwhile, have tripled in price since 1996. Spitzer's decision to have the state stop collecting its fee the will reduce the price of a 20-minute call from $6.20 to about $3.

In addition to the financial effect this will have on the families of prisoners, the symbolic import of Spitzer's move left advocates of a new approach to criminal justice feeling optimistic that more profound changes are on the way. While many are withholding judgment, they see indications that the state is changing course.

Sentencing

There have been calls to reform or repeal the Rockefeller Drug Laws since the administration of Mario Cuomo. Most other states have tempered their own drug sentencing laws. New York did not make any changes until 2005, and even then the reforms were seen as relatively minor.

Spitzer has called for a panel to broadly re-examine sentencing. It has yet to be seen whether the commission's recommendations will be, or whether they will have any teeth. But some see an opening to reconsider the inequities they see in the state's drug laws.

"We clearly think the Rockefeller Laws will be in there," said Jeffrion Aubrey, the head of the State Assembly's corrections committee.

Closing Prisons

In a clear indication that Spitzer sees permanent changes for the prison system, he has indicated that he wants to close some prisons.

"We acknowledge we've lost 8,100 inmates," said Brian Fischer, Spitzer's commissioner of corrections. "Perhaps we don't need so many prisons."

Advocates of closing prisons see such action both as recognition of lower prison populations and as a way to reallocate resources to other places within the criminal justice system.

"The more you can shrink the size of the system intelligently, the more money you have to reinvest in a variety of things, among those programs within prisons," said Jacobson of Vera. Some advocates suggest the money saved by reducing the size of the prison system could pay for experiments on programs aimed at helping people stay out of the penal system, saving progressively more money. Fischer declined to speculate on such a plan, saying, "you can't divert money you haven't saved yet."

Not everyone thinks closing prisons is a good idea, however. Strong opposition kept Pataki from doing so, even though he expressed interest.

Some say closing prisons is premature, given the recent increase in the number of inmates. But much of the argument against closing prisons revolves not around criminal justice, but around economics. The prison system is a $2.7 billion a year industry in New York State, and the economies of many struggling upstate communities rely on prisons. Furthermore, the job security of some upstate lawmakers would be threatened if prisons closed, since prisoners, wherever they came from originally, count as residents of the districts where they are incarcerated - even though they can't vote. Closing prisons would therefore shift political power away from the thinly populated regions where they operate.

In 2005, the state passed legislation that would make it harder to close prisons, requiring officials to give a year's notice, create an alternative use plan for the facility and find new jobs for displaced employees. The state corrections officers union, which makes large contributions to legislators' campaigns, says it opposes any closings.

Spitzer included a plan for a prison closing commission in his executive budget. The State Senate rejected the idea, however, and Aubrey says the Assembly will not push it. Aubrey says that Spitzer could create the commission by executive order, but it is not clear how this will play out.

After Prison

Regardless of what happens to the overall makeup of the system, tens of thousands of people leave New York's state prisons each year, many with little more than $40 and a bus ticket. Criminal justice experts agree that easing this transition is one of the largest challenges facing policymakers. Many believe the preparation should start the minute a prisoner enters the system.

Stanley Richards of the Fortune Society, an organization that helps prisoners readjust to life on the outside, said giving prisoners access to higher education while they are incarcerated is the best strategy for lowering recidivism. Richards spent more than one stint in prison himself; while serving a sentence for robbery he got his GED and a college degree in social work and has not been back to prison since. "It laid the foundation for me," he said.

Numerous studies show that education increases prisoners' changes of succeeding in the outside world. A report by the U.S. Department of Education found that those who attended school behind bars were 29 percent less likely to end up back in prison, and that "every dollar spent on education returned more than two dollars to the citizens in reduced prison costs."

Still, such programs face intense opposition, largely because of their symbolic significance: Many people do not think that money should be spent educating people who have committed crimes. In the mid-1990s both the federal and state governments cut off funding for higher education for prisoners. There has been no movement to reverse these actions in New York so far, but Aubrey says he hopes to have education programs back in the budget by next year.

CIVIL CONFINEMENT

Criminal justice issues have been overshadowed by Albany's big-ticket items: education, Medicaid, Spitzer's governing style. The exception has been a deal between the governor and the legislature to detain some sex offenders indefinitely, even after they have served out their sentences - a practice known as civil confinement.

Sex offenders have long been seen as particularly dangerous. Their crimes are considered to be among the most abhorrent of anti-social behaviors, and recidivism rates among them are high. Across the country, officials have sought ways to crack down, by requiring public notice when a sex offender moves into a neighborhood, or forcing some offenders to wear GPS devices for years after their release. Ohio is currently considering legislation to require the issuance of bright green license plates for convicted sex offenders, mirroring similar legislation in other states.

The first civil confinement legislation was passed in 1990 in Washington State, and many states have passed such laws since. In New York, the Republican-led Senate passed civil confinement legislation every year for more than a decade, only to have it shot down by the Democratic-led Assembly. Governor Pataki had gotten around this deadlock by using the state's mental hygiene laws to keep some sex offenders in mental hospitals as involuntary patients. But a state court rejected this practice last November.

In March, Spitzer signed a far-reaching law that he hopes will become a "national model." New York's law - the 20th in the country - ranks among the harshest. Under the law, mental health experts will identify offenders in prison who are candidates for civil confinement. These offenders will then be given a jury trial. Those who are deemed a continued risk will be transferred to treatment centers indefinitely, instead of being released. Prisoners who are eligible include those who were under 18 when they committed their crime and those who gave minors indecent material.

Civil confinement legislation is widely popular. The U.S. Supreme Court has upheld its constitutionality, on the basis that such programs constituted treatment, not punishment. But there is evidence that the programs are not providing treatment to help people re-enter society, but serving instead as ways to detain sex offenders indefinitely.

Advocates who finally feel that they are getting some traction in other areas of criminal justice say that they see the current atmosphere regarding sex offenders mirroring the earlier panic surrounding drug dealers.

"What's going to happen is sort of like drug laws. The net is going to get cast way too wide and too far. People will be afraid to step back from it for fear of political backlash," said Marsha Weissman of the Center for Community Alternatives, a group advocating alternates to incarceration. "It's easier to get people worked up into a frenzy than it is to take steps back."

 



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