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September 21, 2017

Trifecta of Cases Point Toward Constitutional Deficiencies of Justice Center Prosecutions - Could Lead to Review of All Prior Prosecutions

A trio of decisions out of Albany County point to an elemental Constitutional deficiency in the legal structure of the Justice Center that could unravel its prosecutions. The most recent decision by Justice McDonough in People v. Hodgdon concluded that the Justice Center, as an unelected prosecutorial authority, could not pursue criminal charges against defendants as called for in the Justice Center’s founding legislation. The decisions, if upheld, provide a significant rollback of the Justice Center’s authority in criminal matters; a stick the agency has wielded mightily, while also denying its obligations to provide Constitutional style due process protections citizen’s usually enjoy when faced with criminal Penalties. People v. Viviani

The decisions may impact current prosecutions, and could cause a review of all prior cases pursued without adequate direction from elected prosecutorial authorities. The prospect of overturning of such prior prosecutions, and the potential re-entry of those individuals back into service and treatment of the disabled would surely be a difficult political pill for the Justice Center to swallow; not to mention the potential for liability for wrongful prosecution.

The decisions have sparked discussion of reform of the Justice Center and improved communication and collaboration with traditional law enforcement agencies. These precedents may further call into question the adequacy of the Justice Center’s due process procedures as it relates to cases where the outcome – a finding of neglect – could cause a debarment of a subject from employment anywhere where vulnerable persons are treated or provided services. For example, one area of controversy is the right of an interviewee to be notified that they are the subject of an investigation, and whether that investigation is civil or criminal in nature. Questions of the right to personal counsel and the right to rely upon group counsel or counsel for the employers also loom and remain to be addressed in future litigation. The stakes are high for all who work with the  vulnerable and disabled, and particularly high for professionals who work primarily, or solely with, vulnerable persons, and could lose their ability to practice as a result of debarment that occurs after 1 serious substantiated finding, or 2 less serious offenses. With the Justice Center and its in-house judges serving as investigator, prosecutor, judge and jury, the risk of wrongful pursuit of overstated charges is becoming a great concern for the provider community. Professional groups such as the New York Psychiatry Society have taken a public stand raising concerns about the Justice Center’s impact on care. See, NYSPA Letter Expresses Concerns About Justice Center Investigations;

Many Providers feel increasingly besieged by overbroad reporting obligations, slow administration by the Justice Center and haphazardly applied standards of due process and administration. Time – and the slow but steady wheels of the Court System – will tell what the future holds for New York’s unique and novel agency.

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