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Bar News - January 19, 2007

HHS Emergency Rules in Effect - Involuntary Commitment of Predators Costly, Legal Gray Area


Editor’s Note:
This is the second in a series of articles on the NH Sexual Predators Act. Part 1 was published in the Jan. 5  Bar News and is online at Publications at The next article will take a more in-depth look at how the law is being implemented, and possible challenges to the law.

The new year brings headlines of prosecutors scrambling to determine whether to file emergency petitions to detain three New Hampshire men convicted of sex crimes beyond the end of their prison sentences under the civil commitment provision of the new NH Sexual Predators Act.


Under the Act, which took effect Jan. 1, the inmates  —William DeCato of Merrimack County (release date: Jan. 12); Alan D. Ianni Jr., a Vermont man tried in Grafton County (release date: Jan. 15); and Jerry D. Menard of Sullivan County (release date Jan. 29) — potentially qualify for a five-year-minimum civil commitment in a secure psychiatric facility. The new law allows prosecutors to file a petition for recommital when the offender’s prison term ends and the inmate is believed to continue to pose a threat to public safety.


When a petition is filed, the Superior Court must hold a probable cause hearing within 24 hours to decide whether the inmate should be evaluated by a psychiatric team to determine if he poses a threat to reoffend, or should be released from prison. If probable cause is found to evaluate the offender, the Dept. of Health & Human Services’ (HHS) newly created multidisciplinary team (MDT) has 72 hours to evaluate whether the inmate can be classified as a sexually violent predator who has a “mental abnormality” or “personality disorder” that makes him likely to reoffend; and to make a unanimous recommendation to the prosecutor who tried the case that the inmate should be treated in a secure psychiatric facility.


According to Assistant Attorney General Ann Rice, of the AG’s Criminal Justice Bureau, a panelist for the NHBA-CLE seminar, “Understanding NH Sexual Predators Act,” held Dec. 8, 2006, 10 sexual offenders will be leaving prison in the next nine months. It is not known how many of those inmates will be subject to civil commitment petitions. “At no time will there be floods of people eligible for [civil commitment petitions],” Rice explained. In addition to the three potentially dangerous inmates scheduled to be released this month, two more are expected for release in March.


“Nobody really knows how many [inmates] will actually be referred,” says HHS Commissioner John A. Stephen of the number of inmates scheduled to be released that prosecutors will request to undergo evaluation by the MDTs. “As a former prosecutor, I would be inclined to file a [civil commitment] petition and err on the side of public safety.”


Other aspects of RSA 135-E, as it pertains to involuntary civil commitment, will also be tested in the upcoming months. On the administrative side, the funding mechanism and infrastructure to implement the act are not yet completely in place and many organizations are scrambling to find the resources and expertise within existing budgets to cope with the broad scope of the new law.


Nina Gardner, executive director of the state Judicial Council, as quoted in a recent Union Leader article, estimates $1.2 million in public funding will be needed to pay defense lawyers to represent indigent inmates in commitment proceedings over the next two fiscal years.


“The enactment of this law requires a substantial cost for the entire system,” says Stephen, who has asked for an additional $500,000 from the Legislature to fund the contracts of the MDTs for the next two fiscal years. The Governor and Council this month authorized $100,000 to HHS to fund the work of the teams until the new fiscal year starts. For the long-term, HHS has also requested $24.8 million for major renovation of a vacant building on the state hospital campus to be used as a secure psychiatric treatment facility for civilly committed sexual predators and prisoners whose mental illnesses are best treated outside of the prison setting. The forensic treatment facility, if approved by the Legislature, would cost an estimated $17 million per fiscal year to operate. “These are costs that in the long run could prove very beneficial in protecting our communities,” explains Stephen.


Prison Walls Do Not A Treatment Center Make


Because there is no adequate facility outside of the State Prison for Men in Concord to treat civilly committed sexually violent predators, legal questions are raised.There is a dilemma posed by confining someone in a prison who has already served his sentence and has not yet committed another crime. The civil commitment of potentially dangerous people is balanced against the requirement of government to protect public safety if its agents suspect that a sexual offender is not rehabilitated and is considered likely to offend again.


Stephen points out that now that the civil commitment of violent sexual predators is enacted, it is critical that they must be housed and cared for somewhere other than the prison system. Currently those committed under the new law will be housed within secure treatment facilities within the state prison system until a “more suitable site” is established. A legislative study commitee, with the support of HHS and Dept. of Corrections (DOC), prefers that site to be the vacant Tobey Building, an annex to the New Hampshire Hospital in Concord.


“The facility would be extremely secure,” explains Stephen, who is aware of concern by the public that the site is near the Concord High School and within walking distance of nursery schools and residential areas. “It will be architecturally structured to be secure from escape and will have specialized bullet-proof windows for the security of the inmates. It will be a very secure unit yet with a community-like atmosphere for treatment of residents.”


The HHS is hopeful that the future 64-bed secure facility will be approved by the Legislature. The HHS was already proposing to expand the Tobey Building to address a court order [Holliday v. NH Dept. of Corrections] to establish a separate residential treatment unit in the NH State Prison in Concord by May 2007 to treat inmates with mental illnesses who cannot successfully reside in the general prison population.


In the legislative study, “Final Report of the Commission to Study the Location of the Secure Psychiatric Unit,” published Nov. 13, 2006, the commission recommended that the state allocate DHHS the capital funds needed to renovate the Tobey Building and to move the current SPU to this facility from the State Prison for Men in Concord.


The report says: “Failure to create a new secure multi-program forensic psychiatric hospital will likely result in DOC not being able to meet the compliance requirements of the recent court order consistently and may result in Court intervention.… Additionally, the DOC will not be able to provide the clinical interventions necessary for a more diverse adjudicated and non-adjudicated population. The continued co-mingling of such populations will create opportunities for further legal challenges and adverse court orders.”


The proposed secure multi-program forensic psychiatric hospital as part of New Hampshire Hospital would serve those who have been civilly committed under RSA 135-C; mentally retarded offenders committed (RSA 171-B); persons commiitted as not guilty by reason of insanity (RSA 651:88-b and RSA 651:9-a); persons committed as sexually violent predators (RSA 135-E); and individuals transferred from county correctional facilities (RSA 623:1).


The new facility would also permit DHHS to close the six-bed SPU facility now operated on the grounds of the former State School in Laconia. Stephen explains that there are currently six individuals at the Laconia unit that are civilly committed sexual predators. If they are moved to the proposed facility, because it is located within a hospital and not a prison, the inmates become eligible for federal Medicare benefits, which would aid in the payment for their rehabilitative treatment. He says that the plans also call for six beds to be reserved for the use of county inmates being evaluated for civil commitment proceedings.


The predators would be housed at the SPU at the prison until 2010 when the Tobey Building facility would be complete and operational if the legislature approves the capital funds for the project.


“There are about 20 people in the [prison system] that are [involuntary civil commitment cases] but have committed no crime and shouldn’t be there,” says Stephen.


Civil Commitment Procedure


According to RSA 135-E:1, Involuntary Civil Commitment of Sexually Violent Predators, the state must notify prosecutors nine months ahead of a pending release, but the schedule has been shortened for the first few months that the law is in effect.


The HHS, DOC, and prosecutors must coordinate on each pending commitment case under the new law. Under the new law, whenever a violent sexual offender will be leaving prison the state must notify the convicting prosecutor.


The prosecutor then makes the determination whether to petition to detain an inmate beyond the release date to undergo a psychiatric evaluation. When probable cause is found for an evaluation, a request is made to HHS to convene a three-member MDT to evaluate whether the convicted inmate meets the definition of “sexually violent predator.” The team is made up of two licensed psychiatrists/psychologists (specialized in the treatment and diagnosis of sex offenders). The other member of the team’s credentials are not defined or limited.


Inmates are notified of pending civil commitment proceedings and can refuse to participate in the evaluation. Inmates also are notified that they have the right to the services of an attorney and can appeal the civil commitment ruling.


The MDT evaluation is submitted to the prosecutor. If the team unanimously finds the person meets the definition of a sexually violent predator and is likely to reoffend, the county attorney or attorney general may file a petition within 14 days to the Superior Court stating facts sufficient to support the allegation, according to RSA 135-E:6. If a petition is not filed, and the person is subject to release, he will be released.


Stephen says the MDT process is ready. “The team is selected and the contracts are in place.”


“The public has made it clear that we need to do everything we can to protect our children from sexual predators,” says Stephen. “At the same time, the Legislature has mandated quality care and treatment for sexual offenders.”



Sexual Predators Law CLE Replay

Did you miss the NHBA-CLE seminar, “Understanding NH Sexual Predators Act,” held at the Grappone Conference Center in Concord on Dec. 8, 2006? A video replay of the program will take place Jan. 24, 2007. The program provides an overview on the new law and rehabilitation treatment procedures related to it. For more information or to register go to, “NHBA CLE Seminars.”


If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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