In today’s NY Post, I express my concern for a State Supreme Court decision invalidating the state’s civil confinement law for sexual predators. During the Democratic primary campaign for Attorney General, then-Assemblyman Richard Brodsky slammed then-Senator, now state Attorney General, Eric Schneiderman for failing to vote for the law in 2007.

Last month, the state judicial pay commission approved raising judges’ salaries. Reflexively, some judges and the bar association said the raises were too low to attract and retain talented jurists. Public reaction has been muted.

The public may have second thoughts now that Bronx Supreme Court Justice Colleen Duffy has ordered the state to release a potentially dangerous sex offender because of a flaw in the state’s civil confinement law.

Updated: Fri., Sep. 9, 2011, 4:59 AM

A Bronx Supreme Court justice has ordered the state to release a potentially dangerous sex offender because of an alleged flaw in the state’s civil-confinement law. Is it too late to have some words with the commission that just recommended a pay raise for New York’s judges?
The law allows the civil confinement of dangerous sexual predators who have finished a prison sentence — but Judge Colleen Duffy declared it unconstitutional last month, and a federal court made a similar ruling in March. Both decisions must be overruled for the law to stand.
The Sex Offender Management and Treatment Act took effect in April 2007. It was enacted to protect the public, reduce repeat offenses and ensure that sexual predators get mental-health treatment.
Though perhaps the toughest such law in the nation, it is punitive neither in intent nor effect. As a legislator, I co-sponsored the bill because it was a tough, effective way to safeguard our children and our communities.
To avoid concerns about the constitutionality of detaining sex offenders beyond the terms of their criminal sentence, the law ensures due process when deciding civil confinement:
A person is entitled to a jury trial and the state must prove that the detained person is a sex offender who suffers from a mental abnormality.
But few sex offenders are choosing trial before confinement. During the law’s first year, 92 percent of sex offenders civilly confined had agreed to confinement in a mental institution following release from prison.
Judge Duffy’s gripe? The law keeps the sex offender confined pending that civil trial, with no other options.
Without missing a beat, legal advocates suggest that the Legislature revise the law to let judges allow less restrictive conditions than civil confinement, or to let some sex offenders to be placed in strict, intensive supervision until the outcome of their civil trials.
[Attorney General Eric] Schneiderman, who opposed civil confinement as a senator, has yet to file notice to appeal Judge Duffy’s ruling, though he is appealing the federal ruling.
It is hard to muster sympathy for arguments about due process and the civil liberties of convicted sex offenders detained for psychiatric treatment beyond their criminal sentences.
A couple of the men now being held under SOMTA are refusing to cooperate in their treatment pending their day in court. Apparently, they object to being stigmatized as sexual predators. I’m sure their victims would neither agree nor care.
The law safeguards the due-process rights of those sex offenders reviled as “the worst of the worst.” Civil confinement safeguards the rights of victims and protects the public from these sexual predators.
Schneiderman must appeal Judge Duffy’s dangerous ruling.

Note: The Attorney General’s office filed its notice of appeal on August 10. I apologize for the oversight. I hope that the Attorney General is successful in his appeal. The state and the courts have an interest in protecting public safety.