In the matter of Civil Commitment of L.M.R.

3-20-2013 New Jersey:

In the matter of Civil Commitment of L.M.R.
No. A-1200-12T2.

The State appeals from an October 18, 2012 order declining to continue L.M.R.'s civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to-27.38, and ordering his release from the Special Treatment Unit (STU). By order dated November 15, 2012, we stayed L.M.R.'s release and expedited this appeal. Having reviewed the record, we now affirm the order on appeal.

I.
In 2003, L.M.R. (defendant) pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to seven years in prison, half to be served without parole, plus community supervision for life (CSL) pursuant to Megan's Law. See N.J.S.A. 2C:43-6.4d. The guilty plea was based on a 2002 incident in which defendant, who was intoxicated at the time, attempted to sexually assault his paramour's fourteen-year-old daughter. L.M.R. desisted after the victim's younger brother came into the room and interrupted the assault. Defendant was evaluated at the Adult Diagnostic and Treatment Center (ADTC), but was found not to be a repetitive and compulsive sex offender, in part because he had no prior arrests or convictions for sexual offenses.1

In his ADTC report, Dr. Mark Frank discounted defendant's explanation of the incident. Defendant claimed that he did not attempt to have sex with the victim but only entered her bedroom in the hope that she would tell her mother, who in turn would "call the police and have him arrested." Defendant said he wanted to get arrested because he needed substance abuse treatment. Dr. Frank noted defendant's long history of substance abuse; he recommended intensive treatment for that problem, plus psychotherapy to help L.M.R. understand why he committed the offense and avoid a recurrence. ... ... ...

Further, a sexually violent predator is one who "suffers from a mental abnormality or personality disorder that makes the person [highly] likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26 (emphasis added); W.Z., supra, 173 N.J. at 133-34. Nothing in that definition suggests that a judge cannot consider a sex offender's entire situation in determining whether he needs to be confined in the STU or can be released following an initial commitment hearing. In fact, the State's reply brief concedes that "external factors like CSL may be considered by experts among the many factors examined in determining whether an offender is capable of controlling his sexually violent behaviors." We conclude that is what happened in this case. On this record, we find no error in the judge considering CSL as one of an array of factors bearing on whether L.M.R. can live in the community without being highly likely to commit additional sexual offenses.

As L.M.R. himself acknowledged to Dr. Stewart, it is very important that he refrain from drugs and alcohol when released, because those are dis-inhibitors that may make him more likely to relapse into offending. The parole supervision available through CSL is one mechanism to require regular drug testing, as well as outpatient sex offender therapy. CSL also allows the State to place appropriate limitations on where L.M.R. lives and works. And it is a particularly powerful form of supervision because failure to comply may result in L.M.R.'s arrest and incarceration. See N.J.S.A. 2C:43-6.4d.4 Moreover, as we were advised at oral argument, the same parole officers supervise offenders paroled on CSL and persons released from the STU on conditional discharge. We find nothing inappropriate in Judge Mulvihill, having found that L.M.R. was not highly likely to re-offend, nonetheless making some sensible recommendations as to the conditions of his parole supervision.

Accordingly, we vacate the stay previously entered in this matter, and order that L.M.R. be released from the STU no later than ten days after the date of this opinion. We extend the stay for that limited period to (a) permit L.M.R.'s assigned parole officer to meet with L.M.R. at the STU prior to his release, should the officer choose to do so; and (b) permit the orderly disposition of a stay application to the Supreme Court, should the State decide to promptly file such a motion. We do not, however, recommend that any further stay be granted.

Affirmed. ..Source..

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New Jersey's top court broadens ability to institutionalize sexual predators

2-23-2009 New Jersey:

A person can be involuntarily committed to an institution under the state's Violent Sexual Predators Act even if the crimes were not overtly sexual, the state Supreme Court ruled today.

The justices, in a 5-2 decision, said the state Attorney General's Office was justified in seeking a civil commitment in January 2004 for a man identified as J.M.B., who was convicted of crimes in which he kidnapped or assaulted six victims between the ages of 10 and 21 during a span of two decades.

He did not sexually assault any of the victims, but typically would bind their hands and feet and in some cases cut off their hair. He also told investigators that he found his victims' bondage "sexually arousing" and three expert witnesses said J.M.B. suffered from "sexual sadism."

The justices ruled the Violent Sexual Predators Act provides for a civil commitment to an institution following the completion of a criminal sentence for overtly sexual crimes, such as sexual assault, and for other offenses which, "based on the circumstances of the case...should be considered a sexually violent offense."

The justices ruled that in one instance in particular, J.M.B.'s offense met the substantially equivalent conduct standard. In that case, J.M.B. kidnapped a 16-year-old, bound, gagged and blindfolded him, knocked him unconscious and "ripped out or cut" the victim's hair before abandoning him in a wooded area.

Five justices, in an opinion written by Justice Jaynee LaVecchia, said the Attorney General only had to prove by "clear and convincing evidence" that J.M.B.'s conduct should be considered a violent sexual offense.

In a dissent, Justices Barry T. Albin and John E. Wallace Jr. said the Attorney General ought to have been required to prove "beyond a reasonable doubt," the tougher legal standard required for criminal convictions, that J.M.B.'s conduct should be considered sexually violent in seeking a potential lifetime civil commitment. ..News Source.. by Rudy Larini /The Star-Ledger

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New Jersey sex offender's continued confinement is ruled constitutional in 5-2 decision

11-11-2010 New Jersey:

When a man convicted for multiple sex crimes was sentenced to prison, he requested specialized therapy but was denied when a psychologist said he didn’t meet the criteria.

Years later, the same psychologist and others recommended that the man be civilly committed instead of freed after his prison term was up, saying he still posed a danger — in part because he hadn’t received any therapy.

The decision struck critics as incongruous, and the man — referred to only by his initials W.X.C. in court documents — appealed his case to the Supreme Court, saying his continued confinement is unconstitutional.

But the New Jersey Supreme Court disagreed Tuesday, keeping the man incarcerated.

The court, in a 5-2 opinion, said just because some offenders do not meet the criteria for treatment within the prison system does not mean they cannot be civilly committed at the end of their prison terms. More than 400 sex offenders are committed at two facilities in Avenel after the state determined they are highly likely to commit new crimes.

"The fatal flaw in defendant’s argument lies in its failure to appreciate that the two statutes are designed to serve different purposes and strive to achieve them through different regulatory mechanisms," wrote Justice Helen Hoens in the majority opinion. "The operation of the (Sexually Violent Predator Act) is neither punitive nor fundamentally unfair."

While dissenting Justices Barry Albin and Virginia Long said the man should not be released, they blasted the state’s policy as a "charade."

"Although generally the state may not be obliged to provide sex offender specific therapy to those imprisoned, the deprivation of treatment takes on constitutional significance when it is used to civilly commit a person," Albin wrote. "The state cannot deny an inmate sex-offender specific treatment and then use his failure to receive such treatment as the basis for his civil commitment."

The sex offender in this case was accused of raping two women while burglarizing their homes in 1992. He was arrested while sexually attacking a woman in a nursing home.

He pleaded guilty to two counts of aggravated sexual assault and other crimes. At sentencing, the man asked to be sent to the Adult Diagnostic and Treatment Center, the state’s only prison specifically for sex offenders, to receive therapy. But the state’s evaluation said he did not meet the criteria because, as a sex offender, he was only repetitive, not compulsive.

After 11 years in prison, the man was evaluated again. The same psychologist who said he was ineligible for treatment at Avenel recommended that the state review his case for possible civil commitment, saying he "does not appear to have had any appreciable sex-offender specific psychotherapy."

The man was civilly committed in 2007. One doctor wrote that he has "not moderated his risk through treatment. He has not had treatment for his sexually inappropriate behavior."

The court’s decision was praised Tuesday by the state attorney general’s office.

"The majority’s decision correctly recognized that the Sexually Violent Predator Act serves an important public purpose and is neither punitive nor unfair as applied to sexual predators too dangerous to be released to the community," Senior Deputy Attorney General Mary Beth Wood said.

The man is now confined at one of the Special Treatment Units in Avenal where he is receiving treatment, said Joan Van Pelt, the former deputy public advocate who presented his case to the Supreme Court.

"He’s clearly made significant progress in the program over a relatively short period of time," she said. "It’s somewhat ironic, because that means had he gotten treatment while he was in prison, it was less likely he would have been referred for civil commitment." ..Source.. by Chris Megerian / Statehouse Bureau

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In the Matter of Civil Commitment of ED

6-15-2005 New Jersey:

In the Matter of Civil Commitment of ED

This appeal presents us with the opportunity to address a challenge to the procedures used to revoke a committee's conditional discharge and to recommit under the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-72.24 to -27.38 (the Act).

We upheld the constitutionality of the Act in In re Commitment of W.Z., 173 N.J. 109, 801 A.2d 205 (2002). We now hold that due process requires the State to give the committee written notice of each asserted violation, and that prior to recommitment under the Act the State must prove by clear and convincing evidence the person is highly likely to reoffend.

... ... ...

We reverse and remand for a hearing consistent with the views expressed herein.

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IN THE MATTER OF THE CIVIL COMMITMENT OF R.F. SVP 490-08.

3-19-2014 New Jersey:

IN THE MATTER OF THE CIVIL COMMITMENT OF R.F. SVP 490-08.

Before the State can deprive a person of his freedom, either in a criminal trial or a civil commitment hearing, the State must satisfy a high standard of proof. Under the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to-27.38, a person previously convicted of a sexual offense can be civilly committed only if the State can establish by clear and convincing evidence that he suffers from a mental abnormality or personality disorder that makes him highly likely to commit a sexually violent offense.

The experienced judges assigned to hear these cases have the difficult task of assessing expert testimony that often is in conflict, making factfindings about events described from varying viewpoints, and ultimately predicting the probability of a person's future conduct. In the balance, an individual's right to liberty is weighed against society's interest in public safety.

In this case, R.F., when he was seventeen years old, engaged in sexual conduct with two children, ages twelve and thirteen. He pled guilty in adult court to endangering the welfare of both children and was sentenced to a five-year term at the Adult Diagnostic and Treatment Center at Avenel (ADTC or Avenel). Before R.F. completed his sentence, the State petitioned to have R.F. civilly committed under the SVPA.

At an SVPA commitment hearing, the Honorable Serena J. Perretti, J.S.C., sifted through a ream of documentary evidence and heard testimony from three expert witnesses, two for the State and one for R.F. Although Judge Perretti found that R.F. committed predicate sexual offenses and suffered from a personality disorder, she concluded that the State had not proven by clear and convincing evidence that R.F. was highly likely to engage in sexually violent behavior if not civilly committed.

In coming to the decision that the State had not met the evidentiary standard for SVPA commitment, Judge Perretti made specific findings of fact and ultimately placed decisive weight on R.F.'s expert. She also made clear that R.F. is subject to parole supervision for life, N.J.S.A. 2C:43-6.4; N.J.A.C. 10A:71-6.12. R.F., moreover, must also comply with a discharge plan prepared by the Special Treatment Unit (STU) where he has been civilly committed.

... ... ...

Judge Perretti's determination that the State did not establish by clear and convincing evidence that R.F. was highly likely to sexually reoffend unless institutionalized is supported by sufficient credible evidence in the record. Her findings are not clearly mistaken and are entitled to deference. We therefore reverse the Appellate Division and remand for proceedings consistent with this opinion.

In light of the passage of more than five years between Judge Perretti's decision and our resolution today, we will stay the release of R.F. for thirty days to allow the State to file a new petition if there are any changed circumstances or conditions that would warrant civil commitment. On his release, R.F. will be subject to a discharge plan and parole supervision for life.

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