Judge Rowan Wilson isn’t afraid to step out on a limb when he sees inequity or incongruity. He reminds me of another independent commercial litigator that once sat on the Court of Appeals—former Judge Robert Smith. Judge Smith was well known not only for his voracious questioning at oral argument, but also for pointing out in dissent areas of the law that need fixing. One such Judge Smith dissent was in Matter of State of New York v Shannon S. (20 NY3d 99, 112  [Smith, J. dissenting]), where he called out civil commitment of sex offenders after their imprisonment as constitutionally dubious.
Judge Wilson has now shown he’s willing to follow in Judge Smith’s footsteps, authoring his own strong dissent against the Mental Hygiene Law Article 10 civil commitment system. In Matter of State of New York v Floyd Y. (Anonymous) (No. 102), which I previewed here, the State sought to civilly commit a sex offender after his term of imprisonment had ended. To do that, the State was required to show that Floyd Y. suffered from a “mental abnormality” as defined under Article 10 of the Mental Hygiene Law.
A jury said that Floyd did, but Supreme Court set aside the verdict, holding that the quantum of expert evidence that the State presented didn’t satisfy its burden to commit Floyd against his will after he had served his time. The Appellate Division, First Department reversed both orders and reinstated the jury’s verdict that the sex offender had a mental abnormality. The Court held that the diagnosis of pedophilia here was sufficient to establish that Floyd should be involuntarily committed. The Court was careful, however, to limit its holding to the particular facts of this case.
The majority of the Court of Appeals agreed, finding that the State had proved mental abnormality with little difficulty.
Judge Rowan Wilson, however, vehemently disagreed in a strong dissent that argues that the mental abnormality standard for civil commitment is unworkable and constitutionally infirm. Although Judge Wilson is quick to admit that Floyd has done many, many bad things, “[t]he issue here, though, is not whether Floyd Y. is good or bad, or whether he spent too little time in prison, or whether he will commit some future crime if released from SIST.” Under Article 10, the question is whether a sex offender has a “condition, disease or disorder . . . that  predisposes [a person] to the commission of conduct constituting a sex offense” and that “ results in that person having serious difficulty in controlling that conduct” (Mental Hygiene Law § 10.03 [i]). History tells us, Judge Wilson noted, that that question is a fiction for which there can be no measurable answer:
We now have ten years of experience with article 10, and the truth that emerges from our decisions is that the question of whether human behavior is volitional or predetermined is no more tractable that it was thousands of years ago.
After pointing out the faults in the State’s evidence, including emphasizing that there is a razor thin difference between being unable to control sexual impulses that would go to show a mental abnormality and an impulse just not resisted that wouldn’t, Judge Wilson argued that the mental abnormality standard just doesn’t work:
The fundamental problem is this: we have no way to know whether the fault lies with ourselves or with our stars. Why we do what we do dates at least to the disagreement between the Stoics and Aristotle. Today, the debate continues, more often framed around brain chemistry and physics than philosophy or religion. Article 10 asks us to prove the unprovable: a mental abnormality caused me to have serious difficulty controlling my actions, or as Flip Wilson put it, “The devil made me do it.”
The scientists agree and the Court’s sex offender cases all show, Judge Wilson argues, that there is no valid scientific method to determine whether an offender has a sufficient mental abnormality to justify civil commitment. As Judge Wilson put it, “we in the legislative and judicial branches have erred in uniting psychiatric principles and an impossible legal standard in an unhappy marriage, when the experts themselves have plainly objected.”
There’s a solution to this problem, Judge Wilson pointed out. If the State believes that criminal sentences for sex offenses are too short, the Legislature can lengthen them. The State should not, however, be able to use civil commitment to revoke the liberty of a defendant who has served his criminal sentence based on an unprovable standard.
The prosecution and reduction of sex crimes is tremendously important. However, the stakes of potential indefinite confinement are as high as they come, and require a reformulation of the relevant standards to adhere to the scientific principles and medical methodologies that have governed our civil commitment processes under article 9 and the Correction Law. Article 10’s standard cannot properly distinguish between the typical recidivist of dangerous sexual crimes, for whom we have the criminal justice system, and something more. In Kansas v Hendricks, Justice Kennedy observed: “if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it” (534 US at 412). It is time to admit that the emperor has no clothes. (Whether he could not help himself remains unknowable.)
The Court of Appeals’ opinion can be found here.