On certification to the Superior Court, Law Division, Burlington County, whose opinion is reported at N.J. Super. (1995).
Justices Handler, Pollock, O'hern, Garibaldi, and Coleman join in Chief Justice WILENTZ's opinion. Justice Stein has filed a separate Dissenting opinion.
The opinion of the court was delivered by: Wilentz
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
John Doe, etc. v. Deborah Poritz, Attorney General, etc. (A-170/171-94)
Argued May 2, 1995 -- Decided July 25, 1995
WILENTZ, C.J., writing for a majority or the Court.
On October 31, 1994, a group of bills generally referred to as "Megan's Law" became law. The constitutionality of two of those bills, the Registration and Community Notification Laws, was challenged by "John Doe," a convicted sex offender. Under those statutes, certain convicted sex offenders are required to register with law enforcement officials. Further, depending on the level of risk that the offender is likely to commit another offense, the law provides for notification to elements of the community.
Doe's complaint was heard by the Superior Court, Law Division, which upheld the statutes subject to the addition of a judicial hearing on notification. Doe appealed, and the Supreme court granted direct certification.
HELD: The Registration and Community Notification Laws do not violate the Ex Post Facto, Double Jeopardy, Cruel and Unusual Punishment, or Bill of Attainder Clauses of the federal constitution or analogous state constitution provisions. In addition, the acts do not deprive sex offenders of the right to equal protection under the laws or to their constitutional right to privacy. Subject to limited modifications in respect of judicial review of Tier Two or Tier Three classifications, the Guidelines promulgated by the Attorney General pursuant to the legislation are valid and effective immediately.
1. The essence of the Court's decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish; that the community notification provided for in these laws is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders' loss of anonymity is no constitutional bar to society's attempt at self-defense. The Legislature chose to risk unfairness to previously-convicted offenders rather than unfairness to the children and women who might suffer because of their ignorance of the offender's presence in the community, but attempted to restrict the damage that notification of the public might do to the lives of rehabilitated offenders by limiting the extent of notification based on the likelihood of reoffense. (pp. 3-5)
2. The Legislature's decision to make previously-convicted offenders subject to the Notification Law was unquestionably influenced by the fact that unless they were included, the protection that the laws were designed to afford would not begin to take place for a fair number of years as future offenders were convicted, incarcerated, and released. Then, and only then, would they be subject to the notification provisions, but in the interim, the children of today would receive no protection from the laws through notification concerning the presence of previously-convicted offenders. (pp. 5-6)
3. The Court has no right to assume that the public will be punitive when the Legislature was not, and no right to assume that the media will not act responsibly. The Attorney General has strongly warned that vigilantism will not be tolerated; the Court has no reason to believe that the Governor and the Legislature will tolerate it. The Court assumes that the strongest message will be delivered, and repeated, by the Governor and other public officials at all levels, as well as by community and religious leaders and the media, that these are laws that must be used only to protect and not to punish, a message to be given at community meetings, schools, religious congregations, and everywhere throughout the state.
The Court does not believe that the determination in this case should be based on a prediction of destructive and punitive community reaction. The Court does not suggest any absolute rule that a court should never pass constitutional judgment in a case on the basis of its unalterable conviction concerning predicted community conduct. However, the Court concludes that this is not such a case. The Court does not perceive in this case a society seeking vengeance, demanding the names of previously-convicted sex offenders in order to further punish them, but rather families concerned about their children who want information only in order to protect them. Presumably, some citizens will harass, and presumably they will be prosecuted, but the Court believes that overwhelmingly the State's citizens are law-abiding citizens. The Court does not share the certainty of the Dissent in the probability of a community reaction that will gut the protective purpose of these laws and convert them into punishment, and declines to decide the case on that assumption. (pp. 1416)
4. The Attorney General has properly adopted Guidelines pursuant to broad authority conferred on her by the Statutes. Although Some modifications are required, the Guidelines work with the Notification Law to provide a coherent system of notification that is calibrated to the degree of risk of a further offense. (pp. 16-22)
5. Under the statute, Tier Three notification must be confined to those members of the public "likely to encounter" the offender. To that extent, Tier Three notification through "community meetings, speeches in schools and religious congregations," as provided for in the Guidelines, is not permitted. The Court interprets the statute to conform Tier Two classification (offenders with moderate risk of reoffense) with the same condition applicable to both Tiers One and Three -- namely, that only those organizations and institutions "likely to encounter" the offender are to be notified. Accordingly, the Court modifies the automatic nature of Tier Two notification to require an individual determination concerning organizations and institutions "likely to encounter" the offender. The Attorney General is to formulate procedures designed to assure that notice is given to the offender prior to Tier Two or Three notification to permit the offender to object. If the offender objects, the court will schedule a hearing. The hearing is to be in camera. The offender will have the burden of persuasion on the issue before the court -- the degree of risk that the offender will commit another offense. (pp.22-40)
6. The factor that will ordinarily be critical to a determination of "likely to encounter" is geography. The Guidelines must be revised in respect of Tier Three notifications because they exceed their statutory authorization. To the degree that confidentiality is either implicit in the statutes or explicit in the Guidelines, the need for community education is apparent. The conduct of the media and of community leaders, including public officials, may to a great extent determine the success or failure of such efforts. (pp.40-46)
7. A careful analysis of prior case law confirms that the challenged Statutes are remedial and not punitive. Plaintiff's argument that a statute is punitive if it carries even (he slightest deterrent effect is not persuasive. Because their purpose is to protect society from the risk of further offenses by convicted sex offenders and not to inflict punishment, the statutes do not violate the Ex Post Facto Clause of the Constitution. For the same reason, plaintiffs claims of violation of the Bill of Attainder Clause and the Cruel and Unusual Punishment Clause must fail. (pp. 40-108)
8. To assure uniformity in the application of the laws, the judiciary, to the extent it may be involved in reviewing prosceutors' decisions, will name one Judge in each vicinage to handle any hearings arising from the implementation of the laws; a three-Judge panel will be named to review all matters that have been concluded in order to determine whether any disparity exists and, if desirable, to design a bench manual for the guidance of Judges handling such hearings; and, given the in camera nature of the proceedings, the public will be informed through annual reports by the Administrative Office of the Courts which shall describe all in camera judicial hearings in as much detail as possible -- without disclosing the identity of the offender when the notification decision is reversed -- in order that the public may be fully informed concerning the judiciary's implementation of these laws. The Court's decision that the judiciary shall, upon application, review prosecutorial decisions that provide for community notification (Tier Two or Tier Three) does not limit the Legislature's power to provide such review through other agencies, so long as the method of review affords procedural due process. Such review is constitutionally required but need not be judicial review. (pp. 46-48)
9. While the role of the constitutional provisions involved in this case as protectors of individual rights must always be fully enforced, care should be exercised not to convert them into obstacles that prevent the enactment of honestly-motivated remedial legislation by subjecting laws to tests unsuited to the underlying purpose of those constitutional provisions. Those provisions were aimed at arbitrary and unjust actual punishment, intentionally inflicted, and their application should be guided accordingly. (p. 53)
10. Although the Registration Law does not violate plaintiffs right to privacy under the Fourteenth Amendment, certain aspects of the Notification Law do implicate privacy interests. The State's strong interest in public disclosure, however, substantially outweighs plaintiffs interest in privacy. The Court notes that the degree and scope of disclosure is carefully calibrated to the need for public disclosure: the risk of a further offense. An analysis of plaintiffs right to privacy under the state constitution leads to the same result. (pp. 109-130)
11. Because the registration and notification requirements of the statutes are rationally related to a legitimate state interest, the requirements of equal protection under the Fourteenth Amendment and the State Constitution have been satisfied. (pp. 131-137)
12. The Attorney General's Guidelines are not "rules" that are subject to the Administrative Procedure Act. Rather, they are an appropriate response to a specific statutory mandate. Their contents are largely dictated either explicitly or implicitly by the language of the notification statute. (pp. 138-144)
13. While the laws do not violate substantive constitutional rights, the Court finds, under both the Federal and State Constitutions, sufficient impingement on protectible liberty interests in privacy and reputation to require procedural safeguards prior to classification in, and notification under, Tiers Two or Three. The Court concludes, moreover, that even if not constitutionally required, such safeguards are required by New Jersey's doctrine of fairness and rightness. (pp. 144-161)
14. Given the fact that no other state has adopted such a far-reaching statute, there is an unavoidable uncertainty in the Court's Conclusions. Nevertheless, the Court remains convinced that the Statute is constitutional. To rule otherwise is to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence. (p. 161)
15. The Court assumes some ostracism of offenders will result, but notes that government has done all it can to confine that impact, providing public notification only for those whose apparent future dangerousness requires it. The Court notes that society should not be preJudged with the ogre of vigilantism or harassment (although its potential obviously calls for the vigorous steps suggested by the Attorney General), that it should not be assumed that those in responsible positions will violate the intent of the law by giving notification beyond that which is authorized by the statute and Guidelines, and that it must not be assumed that the press will disregard the notification restrictions which these laws require. (pp. 161.162)
The judgment of the Law Division is AFFIRMED as MODIFIED. The Attorney General's Guidelines, as MODIFIED, are valid and effective immediately.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and COLEMAN join in CHIEF JUSTICE WILENTZ's opinion. JUSTICE STEIN has filed a separate Dissenting opinion.
STEIN, J., Dissents. He concludes that because the Community Notification Law "makes more burdensome the punishment for a crime, after its commission," it violates the constitutional prohibition against ex post facto laws. He disagrees with the majority's Conclusion that the statute can be characterized as "remedial" as well as with the standard it applies to reach that Conclusion.
The majority's inquiry into the ex post facto issue begins and ends with legislative intent. The exclusive reliance on legislative intent as the test of "punishment' is misplaced. The appropriate standard requires that a court assess the character of the actual sanctions imposed on the individual by the machinery of the state. Based on its functional effect, the Conclusion is inescapable that the Notification Law imposes punishment within the meaning of the Ex Post Facto Clause.
The opinion of the Court was delivered by WILENTZ, C.J.
On October 31, 1994, a group of bills concerning sex offenders became law. They are generally referred to as "Megan's Law," named after the second female child abducted, raped, and murdered during the prior year. The question before us is whether two of those bills, the Registration and Community Notification Laws, are constitutional. L. 1994, c. 133 (Registration Law, N.J.S.A. 2C:7-1 to -5) and L. 1994, c. 128 (Community Notification, N.J.S.A. 2C:7-6 to -11). We hold that they are, but that the prosecutor's decision to provide community notification, including the manner of notification, is subject to judicial review before such notification is given, and that such review is constitutionally required. In most respects, we affirm the judgment of the trial court.
The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders' loss of anonymity is no constitutional bar to society's attempt at self-defense. The Registration and Notification Laws are not retributive laws, but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State's or our country's fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further. They represent only the Conclusion that society has the right to know of their presence not in order to punish them, but in order to protect itself. The laws represent a Conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, are entitled not to be disturbed simply because of that prior offense and conviction; but a Conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it.
The choice the Legislature made was difficult, for at stake was the continued apparently normal lifestyle of previously-convicted sex offenders, some of whom were doing no harm and very well might never do any harm, as weighed against the potential molestation, rape, or murder by others of women and children because they simply did not know of the presence of such a person and therefore did not take the common-sense steps that might prevent such an occurrence. The Legislature chose to risk unfairness to the previously-convicted of fenders rather than unfairness to the children and women who might suffer because of their ignorance, but attempted to restrict the damage that notification of the public might do to the lives of rehabilitated offenders by trying to identify those most likely to reoffend and limiting the extent of notification based on that Conclusion.
The legislative choice was undoubtedly influenced by the fact that if the law did not apply to previously-convicted offenders, notification would provide practically no protection now, and relatively little in the near future. The Legislature reached the irresistible Conclusion that if community safety was its objective, there was no justification for applying these laws only to those who offend or who are convicted in the future, and not applying them to previously-convicted offenders. Had the Legislature chosen to exempt previously-convicted offenders, the notification provision of the law would have provided absolutely no protection whatsoever on the day it became law, for it would have applied to no one. The Legislature concluded that there was no justification for protecting only children of the future from the risk of reoffense by future offenders, and not today's children from the risk of reoffense by previously-convicted offenders, when the nature of those risks were identical and presently arose almost exclusively from previously-convicted offenders, their numbers now and for a fair number of years obviously vastly exceeding the number of those who, after passage of these laws, will be convicted and released and only then, for the first time, potentially subject to community notification.
The Legislative Purpose: Addressing the Problem of Repetitive Sex Offenders
The challenged laws before us in this case have two basic provisions. First, they require registration with law enforcement authorities of certain convicted sex offenders and spell out the offenses that trigger the registration requirement, registration of those convicted prior to their passage limited to offenders found to have repetitive and compulsive characteristics. Second, they provide for notice of the presence of such offenders in the community, the scope of that notice measured by the likelihood that such offenders will commit another sex offense: where the risk of such reoffense is low, only law enforcement authorities are notified; where it is moderate, institutions and organizations having the responsibility to care for and supervise children and women are notified; and where the risk is high, those members of the public likely to encounter the offender are notified.
The purpose of the registration and the subsequent notification is set forth in the legislation itself.
1. The Legislature finds and declares:
a. The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law enforcement officials to identify and alert the public when necessary for the public safety.
b. A system of registration of sex offenders and offenders who commit other predatory acts against children will provide law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons.
The legislative concern about the problem, and the remedy selected, are best understood in the light of the nature and extent of the problem. There are varying views on that subject, but it is clear that the Legislature in formulating its policy accepted the view of the problem, and the facts concerning it, that follow. Such a legislative determination is beyond judicial review.
Based on statistical and other studies the Legislature could have found, and presumably did find, the following facts, essentially reflected in its statement of purpose, and its enactment of the laws: *fn1
Studies describing recidivism by sex offenders indicate the severity of the problem the Legislature addressed in Megan's Law. Studies report that rapists recidivate at a rate of 7 to 35%; offenders who molest young girls, at a rate of 10 to 29%, and offenders who molest young boys, at a rate of 13 to 40%. Further, of those who recidivate, many commit their second crime after a long interval without offense. In cases of sex offenders, as compared to other criminals, the propensity to commit crimes does not decrease over time. . . . In one study, 48% of the recidivist sex offenders repeated during the first five years and 52% during the next 17 years. . . .
As Doe acknowledges, successful treatment of sex offenders appears to be rare. He correctly notes that very few offenders sentenced to ADTC [Adult Diagnostic and Treatment Center ever meet the dual standards required for parole from ADTC. Indeed, according to Department of Correction's statistics between 1980 and 1994 only 182 inmates were paroled from ADTC. While plaintiff was among the few who were released as "capable of making an acceptable social adjustment in the community," the large majority of ADTC inmates leave only after having served their maximum sentences. During the same time frame, 1980 - 1994, 712 inmates were released from ADTC at expiration of term.
[Response Brief for Attorney General at 6-8 (citations omitted).]
Further information gleaned from similar studies strongly reinforces the foregoing:
Sexual crimes are notoriously underreported. Such data as are available, however, demonstrate that their impact is substantial and widespread. A nationwide sampling of households by the Justice Department for the years 1987 to 1991 indicates that every year nearly 133,000 women in the United States age 12 or older were victims of rape or attempted rape, 44% committed by strangers. Twenty-one percent of the total involved weapons (29% of stranger rapes), and 47% of all victims (60% of victims of strangers) sustained injuries in addition to the rape itself. The Justice Department also estimates from police reports that nationwide about 17,000 girls under age 12 were raped in 1992, 54% by non-family members (acquaintances and strangers). And based solely on incidents reported to the police, a Justice Department study shows that in 1988 as many as 4,600 children of both sexes were abducted or detained by non-family members, nearly always by force (85-87%) and usually with a weapon (75-85%), and more than two-thirds of these children were sexually assaulted.
Sexual assault takes a heavy toll on its victims, particularly on children. Recent research indicates that a number of psychosocial problems -- including chronic depression and anxiety, isolation and poor social adjustment, substance abuse, suicidal behavior, and involvement in physically or sexually abusive relationships as either aggressor or victim -- are more common among adults molested as children than among those with no such childhood experiences. Victims of sexual abuse can suffer an impaired ability to critically evaluate the motives and behavior of others, making them more vulnerable to revictimization. An especially disturbing finding about child sexual abuse is its strong intergenerational pattern; in particular, due to the psychological impact of their own abuse, sexually abused boys have been found to be more likely than non-abused boys to turn into offenders against the next generation of children, and sexually abused girls are more likely to become mothers of children who are abused. And studies show that adult male aggressive behavior, particularly sexual aggression, is associated with the trauma of childhood sexual abuse. Thus, apart from the substantial personal trauma caused to the victims of such crimes, sexual crimes against children exact heavy social costs as well.
[Brief for the United States at 5-8 (citations omitted).]
On the critical issue of recidivism, the Legislature presumably adopted the view suggested in the following information, supportive of that stated in the studies relied on by the Attorney General:
Sex offender recidivism compounds the problem. As a group, sex offenders are significantly more likely than other repeat offenders to reoffend with sex crimes or other violent crimes, and that tendency persists over time. A 15-year follow-up study by the California Department of Justice of 1,362 sex offenders arrested in 1973 found that 19.7% were rearrested for a subsequent sexual offense. Those first arrested for rape by force or threat had the highest recidivism rate, 63.8% for any offense, and 25.2% for a subsequent sex offense. Sex offenders were five times as likely as other violent offenders, and more than six times as likely as all types of offenders, to reoffend with a sex offense. Similarly, a Washington State study of 1,373 adult male sex offenders convicted between 1985 and 1991 and released by the end of 1991 showed that after seven years of follow-up, 12% were rearrested for sex offenses and an additional 3% were rearrested for violent offenses. Of the 110 offenders reconvicted of a sex offense, 43% were reconvicted of a more serious sex offense.
These figures comport with other data on sex offender recidivism. A major Justice Department study of state prisoners released in one year showed that 7.7% of released rapists were rearrested for rape within three years. Moreover, 27.5% of released rapists were rearrested during that period for some kind of violent offense (murder, rape, robbery, or assault). Released rapists were 10.5 times more likely to be rearrested for rape than were other released prisoners; likewise, prisoners who had served time for other sexual assaults were 7.5 times more likely than other released prisoners to be rearrested for sexual assault. A recent review of the most frequently cited studies of sex offender recidivism indicates that rapists repeat their offenses at  rates up to 35%; offenders who molest young girls, at  rates up to 29%; and offenders who molest young boys, at  rates up to 40%. Moreover, the recidivism rates do not appreciably decline over time, and thus, in contrast with other types of offenders, the tendency to reoffend does not appear to decline with an offender's increasing age. It has been estimated that extrafamilial child molesters have an average of as many as 19.8 victims (for those molesting a girl) and 150 victims (for those molesting a boy).
[Id. at 8-10 (citations omitted).]
Clearly, both the Legislature's and the public's increasing awareness of the dangers posed by sex Offenders triggered laws here, and elsewhere, as the understanding of the problem was accelerated by the occurrence of highly publicized and horrific offenses. In 1994 Congress enacted legislation requiring states, as a condition to some federal funding, to enact registration laws covering certain sex offenders. Those registration laws, aimed particularly at protecting minors and the potential victims of sexually violent offenses, would require registrants to verify their addresses annually for ten years (as well as changes in address) and to provide fingerprints and a photograph, and would explicitly permit release of information necessary to protect the public "concerning a specific person required to register." 42 U.S.C.A. § 14071 (b) and (d). Apparently, some members of Congress believed the provision allowing community notification was crucial to preventing future crimes. See, e.g., 140 Cong. Rec. H5612-17 (daily ed. July 13, 1994) (remarks of Reps. Dunn and Ramstad); id. S10502 (daily ed. August 3, 1994) (remarks of Sen. Lautenberg); id. S10710 (daily ed. August 5, 1994) (remarks of Sen. Gorton); id. S11889-90 (daily ed. August 16, 1994) (remarks of Sens. Gorton and Lautenberg); id. H8981-82 (daily ed. August 21, 1994) (remarks of Rep. Ridge); id. S12544-45 (daily ed. August 25, 1994) (remarks of Sens. Lautenberg and Dole).
The laws before us, therefore, do not simply reflect the awful experience of the past year or so in New Jersey, but a national trend reflecting a national problem. The remedy selected by our Legislature goes beyond the ability of citizens to request the criminal record of their neighbors when they may have no reason to make such requests. The remedy goes directly to the question of what a community can do to protect itself against the potential of reoffense by a group the Legislature could find had a relatively high risk of recidivism involving those crimes most feared, and those crimes to which the most vulnerable and defenseless were exposed -- the children of society. The spectacle of offenses committed by neighbors, known in the public records as significantly potential reoffenders, but not known to anyone else, and especially not known to those most likely to be affected, their neighbors, suggested the most obvious and practical degree of protection: a law that would tell neighbors and others who night be affected, of the presence of such offenders, no more and no less.
The concern for the potential unfairness of identification has some justification, but it is wrong to assume the people of this State and the media will not understand that potential. The Attorney General points to information, far from complete because of the injunction against the implementation of these laws, that suggests that harassment and vigilantism have been minimal. This Court has no right to assume that the public will be punitive when the Legislature was not, that the public, instead of protecting itself as the laws intended, will attempt to destroy the lives of those subject to the laws, and this Court has no right to assume that community leaders, public officials, law enforcement authorities, will not seek to educate the public concerning the Legislature's intent, including appropriate responses to notification information, responses that are not at all punitive, but seek merely to protect their children, their families, and others from reoffense. And this Court has no right to assume the media will not act responsibly.
The Dissent's historical analysis, though relevant, is followed by, and ultimately amounts to, a prediction of a destructive and punitive community reaction that converts the statutory protection into punishment. As we have noted in this opinion, we do not believe the Court should determine this constitutional question based on such a prediction. The Attorney General has strongly warned that vigilantism and harassment will not be tolerated; we have no reason to believe that the Governor and the Legislature will tolerate it; and, for the purpose of constitutional adjudication, despite the branding, stocks, and pillory of prior centuries, we have no right to assume the public will engage in it. We assume that the strongest message will be delivered, and repeated, by the Governor and other public officials at all levels, as well as by community and religious leaders and the media, that this is a law that must be used only to protect and not to punish, and that all citizens must conform their conduct accordingly, a message given at community meetings, schools, churches, synagogues, and everywhere throughout the state.
The Dissent refers to two examples of harassment and worse. One has already led to an indictment, the other involves conduct that may very well be subject to criminal sanctions if and when it occurs again. See N.J.S.A. 2C:33-4. Obviously, as the Dissent acknowledges, future community reactions are impossible to discern. Despite that observation, the heart of the Dissent is its prediction of the most severe consequences visited upon previously-convicted sex offenders, the clear implication being that they will regularly, almost invariably, occur. We do not suggest any absolute rule that a court should never pass constitutional judgment in a case on the basis of its unalterable conviction concerning predicted community conduct. This is not such a case, however. We do not perceive in this case a society clamoring for blood, demanding the names of previously-convicted sex offenders in order to further punish them, but rather families concerned about their children who want information only in order to protect them. Presumably, some citizens will harass, and presumably they will be prosecuted, but we believe that overwhelmingly our citizens are law-abiding citizens. We do not share the certainty of the Dissent in the probability of community reaction that would gut the protective purpose of these laws and convert them into punishment. We decline to decide this case on that assumption.
The Laws and the Attorney General's Guidelines
Despite complexities of detail, the Registration Law is basically simple. It requires registration of sex offenders convicted after its effective date and all prior-convicted offenders whose conduct was found to be repetitive and compulsive. The sex offenses that trigger the laws for those previously convicted are aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to N.J.S.A. 2C:13-1(c)(2), and for those convicted after their effective date, added to the foregoing are various laws concerning endangering the welfare of a child, luring or enticing, criminal sexual contact if the victim is a minor, and kidnapping, criminal restraint, or false imprisonment if the victim is a minor and the offender not the parent; and in all cases an attempt to commit any of the foregoing. N.J.S.A. 2C:7-2b(1) and (2). *fn2
Registration requires, in the case of those no longer in custody -- generally those who committed the offense before adoption of the laws -- appearance at a local police station for fingerprinting, photographing, and providing information for a registration form that will include a physical description, the offense involved, home address, employment or school address, vehicle used, and license plate number. N.J.S.A. 2C:7-4(1) and (2). For those in custody, the procedure is effected at that location. The forms, information, fingerprints, and photographs (or copies) are centrally collected by the State Police and prosecutors. The registration requirement applies to all convicts, all juveniles, no matter what their age, found delinquent because of the commission of those offenses, and to all found not guilty by reason of insanity. The requirements apply as well to sex offenders convicted elsewhere who relocate to this state. Registrants whose conduct was repetitive and compulsive must verify their addresses with the local law enforcement agency quarterly, other registrants must do so annually. Upon relocation to another municipality, re-registration is required there, and, apparently, any change of address requires notice to the local law enforcement agency. *fn3
All of these are lifetime requirements unless the registrant has been offense-free for fifteen years following conviction or release from a correctional facility (whichever is later) and, on application to terminate these obligations, can persuade the court that he or she is not likely to pose a threat to the safety of others. N.J.S.A. 2C:7-2f. Registration records are open to any law enforcement agency in the state, or any other state, or any federal law enforcement agency. N.J.S.A. 2C:7-5. Failure to comply with the Registration Law is a fourth-degree crime. N.J.S.A. 2C:7-2a.
The Community Notification Law requires the local chief of police to give notification of the registrant's presence in the community, such notification also required if the registrant changes address (presumably whether within or outside of the community although the statutory language refers only to the latter). N.J.S.A. 2C:7-7. *fn4 The law provides for three levels of notification (referred to as Tiers One, Two and Three in the Guidelines) depending on the risk of reoffense.
(1) If risk of reoffense is low, law enforcement agencies likely to encounter the person registered shall be notified;
(2) If risk of reoffense is moderate, organizations in the community including schools, religious and youth organizations shall be notified in accordance with the Attorney General's Guidelines, in addition to the notice required by paragraph (1) of this subsection;
(3) If risk of reoffense is high, the public shall be notified through means in accordance with the Attorney General's Guidelines designed to reach members of the public likely to encounter the person registered, in addition to the notice required by paragraphs (1) and (2) of this subsection.
No suggestion has been made that any registrant could be classified as posing no risk of reoffense: presumably then, all registrants will be subjected at the very least to Tier One Notification (called "Law Enforcement Alert" in the Guidelines). Although the statute provides that the risk of reoffense, and therefore the extent (the level, the Tier) of notification shall be assessed by the prosecutors of the county of conviction and the county of residence together with any law enforcement officials that either deems appropriate, the Guidelines appear to require the final assessment to be made by one prosecutor, apparently the prosecutor of the county of residence.
The "means" of providing notification, after deciding the appropriate Tier or level of notification, is to be determined by the prosecutor of the county of residence. N.J.S.A. 2C:7-8d(1) and (2). The Guidelines deal with that subject as well, Guideline VI, Methods of Community Notification, suggesting involvement of local law enforcement in that determination. The Attorney General is given broad powers under the laws to adopt "Guidelines" apparently intended to be binding on all law enforcement agencies. Those Guidelines were adopted within the statutory time period after the Attorney General consulted with members of the "Notification Advisory Council" established by the statute. N.J.S.A. 2C:7-11. Those Guidelines are to be reviewed again one year after the effective date of the law for "changes or revisions" at which point "the Council shall expire." Ibid.
The Guidelines, in accordance with the statute, add factors to be considered in assessing risk, provide greater specificity in allocating responsibility for that assessment and for determining the scope of notification, significantly define the substance of Tier Two (community organization) notification and its purposes, provide for the maintenance of records of notification and the circumstances under which they may be disclosed, require training of those involved in the notification process, and require levels of confidentiality of the disclosed information, restrictions on its dissemination, and a strong warning against vigilantism and harassment of the offenders, their families, employers, and schools. Appended to the Guidelines are the forms to be used in connection with notification. They conform fairly to the statute's intent to provide only that information needed by organizations or that part of the community likely to encounter the offender -- the offense, a description and photograph of the offender, the offender's automobile and license plate, home address, address of employment or school, along with the warning about vigilantism and harassment. *fn5
All of these provisions of the laws, the requirements for registration, the provisions for notification, the Tiers, and the many other related parts, are tied together by the statement of legislative purpose mentioned above found at the beginning of the Registration Law: to aid law enforcement in apprehending sex offenders and to enable communities to protect themselves from such offenders. Together these laws are fairly designed to achieve those purposes. The Community Notification Law, along with the Attorney General's Guidelines, provide a coherent system of notification calibrated to the degree of risk of reoffense: low-risk offenders or higher will trigger notification to law enforcement who will thereby have ready access to all offenders in the area when needed either because of reported or perceived threats, or actual incidents when quick response is most important; moderate offenders and higher will trigger a notification calculated to alert organizations charged with the supervision and care of children or women, which are likely to encounter them, to their potential presence and risk; and high-risk offenders will trigger notification to that portion of the community likely to encounter them.
We are aware of the uncertainties that surround all aspects of the subject of sex offender recidivism and the effectiveness of preventive measures. Legislatures, despite uncertainty, must sometimes act to deal with public needs, basing such action on what they conclude, in a welter of conflicting opinions, to be the probable best course. Our Legislature could reasonably conclude that risk of reoffense can be fairly measured, and that knowledge of the presence of offenders provides increased defense against them. Given those Conclusions, the system devised by the Legislature is propriately designed to achieve the laws' purpose of protecting the public. *fn6
The Challenges to the Laws
Although plaintiff is seeking relief only for himself, our decision will affect all sex offenders covered by the laws. Plaintiff's claims are the sane as any offender could assert, whether convicted before or after the enactment of these laws, although his ex post facto and bill of attainder claims apply only to previously-convicted offenders. The claims that can be made by offenders convicted after the enactment of the laws, double jeopardy, cruel and unusual punishment, invasion of privacy, equal protection, and procedural due process, can also be made by plaintiff.
Plaintiff seeks an injunction against application of both the Registration and Notification Laws to him and seeks in part to confine our ruling to his special situation, a first-time offender who successfully completed treatment at the Adult Diagnostic and Treatment Center at Avenel, was paroled, success fully completed parole, and has been living and working in the community. He has not reoffended, is apparently totally integrated in and accepted by the community, which, except for his employer and co-employees, is ignorant of his offense. He offers proof that notification will lead to the loss of his job.
Despite this attempt to narrow the issue and challenge the laws as applied to him, the record and our view of the applicable legal doctrines leave plaintiff in precisely the same position as any offender making the same attacks (except, obviously, those attacks that can be mounted only by previously-convicted offenders). We do not find plaintiff's alleged special characteristics -- not yet subjected to challenge -- to confer on him any constitutional or legal rights different from any other offender. Essentially, those characteristics are relevant only to his ultimate Tier classification, but given our view of the law, the fact that an offender may be able to prove an extremely low probability of reoffense does not exempt him from the law, or transform his facial attack to one as applied, or, on this record, entitle him to relief that might resolve the case without passing on the issues. Having no idea what the entire record concerning plaintiff will reveal, we cannot be assured that he will not properly be classified as a Tier Three offender, highly likely to reoffend, since there has as yet been no full inquiry into all of the factors that determine Tier classification, no inquiry into his behavior in the community and no up-to-date psychological profile of plaintiff.
We note, since it is not apparently emphasized by the parties either in their briefs or at oral argument, that if plaintiff's attacks are successful these laws may be invalidated not only for previously-convicted offenders but for all sex offenders who are convicted in the future. Recent United States Supreme Court cases show that plaintiff's double jeopardy claim is no different from that which would be made by future sex offenders who are required after conviction and completion of punishment to register and be subject to notification, alleged by plaintiff to be a second, and therefore impermissible, punishment. Therefore, if plaintiff's ex post facto attack is sustained, it seems most likely that the double jeopardy attack will succeed as well for in this case the basis for each seems indistinguishable: both claim registration and notification constitute a second punishment for conduct previously punished. *fn7
The asserted invalidity of the process used to determine the extent of notification is similarly available to offenders convicted both prior to and after the enactment of the law. If a "liberty interest" is implicated for one, the same notification infringes it for the other, triggering, if so, procedural due process rights. And quite obviously, if registration and notification are punishment, and moreover cruel and unusual, that characterization would apply to all subject to the laws. And the same may be said with equal force about claims of invasion of privacy.
Plaintiff has claimed that the laws constitute an unreasonable search and seizure. The point was not raised below and appears for the first time in plaintiff's brief before us. We conclude there is no merit to the contention and decline to treat it in detail. *fn8
Interpretation of Statute: Revision of Attorney General's Guidelines; Judicial Review
Our resolution of the challenges to the laws is based on our interpretation of them and our revision of the Guidelines. Although not essential to our Conclusion that the laws and Guidelines together are constitutional, that interpretation and those revisions are strongly supportive of our decision. See, e.g., New Jersey Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 75, 411 A.2d 168 (1980) (noting Court's power to revise statute "to free it from constitutional doubt or defect"); In re Kimber Petroleum Corp., 110 N.J. 69, 83, 539 A.2d 1181 (1988) (reading judicially created provision into law in order to avoid its invalidation). We describe then here in order to provide a better understanding of our analysis and Conclusions set forth in later sections of this opinion. The basic attack on these laws is the alleged excessiveness of community notification. Our interpretation and revisions strictly confine that notification in accordance with legislative intent. The judicial review required by our opinion assures implementation of that intent. It is therefore also described in this section.
We have interpreted the statute to require for Tier Two notification that the institution or organization to be notified is one that is "likely to encounter" the offender. Later in this section we have defined, both for Tiers Two and Three, what "likely to encounter the offender" means and have also set forth standards intended to clarify the difference between low, moderate, and high risk. As for the Guidelines, we have clarified or revised them in order to assure that they conform to the statute. We have required that the statutory factor "behavior in the community following service of sentence" be considered in all Tier classifications; that the statutory factor "whether psychological or psychiatric profiles indicate a risk of recidivism" be available not only to increase the risk assessment, but to decrease it.
Having interpreted the statute to require Tier Two notification to be based on "likely to encounter," we have modified the automatic nature of Tier Two notification so as to require an individual determination concerning such institutions and organizations. We have underlined the Attorney General's interpretation, and accepted it, limiting Tier Two notification to those organizations that actually are in charge of the care or supervision of children or women. We have limited Tier Three notification to conform to the "likely to encounter" requirement of the statute, thereby revising those provisions of the Guidelines that suggest the possibility that notification would be extended to the entire community regardless of whether those notified are likely to encounter the offender.
The most significant change, of course, is the requirement, on application, of judicial review of the Tier classification and the manner of notification prior to actual notification. Because we have concluded that despite its constitutionality, the statute sufficiently impinges on liberty interests to trigger both procedural due process and the fairness doctrine in our state, see infra Section IX, those subject to the statute are entitled to the protection of procedures designed to assure that the risk of reoffense and the extent of notification are fairly evaluated before Tier Two or Tier Three notification is implemented. Although the provisions of the statute and the implementing Guidelines are obviously designed to assure such evaluation, and although there is no reason to believe that the prosecutors and other law enforcement personnel charged with the decision-making power that controls both the level of notification and the specific steps that will determine the amount of notification will not discharge their duties competently and fairly, we have concluded that judicial review through a summary proceeding should be available prior to notification if sought by any person covered by the law. The Attorney General, therefore, as a condition to the enforcement of this law, shall formulate procedures designed to assure that notice is given in sufficient time prior to Tier Two or Tier Three notification to allow the offender to object. We realize that in some cases it may be impossible as a practical matter to give such notice, or to give it timely, and in those cases it may be dispensed with.
The written notice shall inform the offender of the proposed level and specific manner and details of notification and inform him or her that unless application is made to a court on or before the date mentioned in the notice (which shall not be shorter than two weeks after the giving of the notice), the notification will take place, but that if such application is made, there will be no notification until and unless affirmed by the court or, if reversed, until and unless the prosecutor provides notification in accord with the reasons for reversal. The notice shall inform the subject of the right to retain counsel (and that counsel will be provided by the court if he or she cannot afford counsel) and of the necessity that the application be timely made, and shall specifically inform him or her how such application should be made if counsel is not retained -- a simple letter delivered to the Assignment Judge (named in the notice) in the courthouse in the county of the offender's residence that encloses the prosecutor's notice and indicates the offender's objection to it, disagreement with it, or the simple fact that he or she does not want the notification to be given.
The court shall immediately upon receipt of such objection set down a date for summary hearing and decision of the issue. If the offender does not have counsel, the court shall assign same. We strongly suggest that legislation providing for that representation be adopted. The prosecutor shall forthwith turn over all papers, documents, and other material, including the prosecutor's findings and statement of reasons for the level and manner of proposed notification to the court and to the offender and counsel.
The court shall control the manner of the summary proceeding, which shall be in camera, including determining whether and to what extent production of witnesses and cross examination shall be required or allowed, basing its determinations on the apparent complexity of the matter, the extent of doubt concerning the correctness of the level and manner of notification selected by the prosecutor, as well as the apparent need for prompt determination, presumptively present in all cases. The rules of evidence shall not apply and the court may rely on documentary presentations, including expert opinions, on all issues. The court shall either affirm or reverse the prosecutor's determination, and in the case of a reversal the court shall indicate those respects in which the proposed notification does not conform to the laws and the requirements found in this opinion. Upon affirmance, or compliance with the terms of the reversal, notification may be given in the absence of any contrary judicial order. The trial court shall not automatically stay the effect of an affirmance to allow time for application to an appellate court, but shall grant sane only if justified by the circumstances of the case.
We attempt by these procedures to reach a difficult accommodation between the State's legitimate and substantial interest in effecting prompt notification and the offender's legitimate interests in assuring accurate evaluation of the But the factors do not sufficiently define moderate risk and high risk to allow for adequate review of the determination.
The only issue for the court on the Tier level of notification is the risk of reoffense. In that sense the factors of the Guidelines noting the characteristics of prior offenses or of the offender are relevant only to the risk of reoffense, i.e., the likelihood of its occurrence. That is the clear intent of the statute. All offenders required to register are, by statute, subject to at least Tier One notification, meaning that no matter how low the risk of reoffense, the Legislature has concluded Tier One notification is required.
We conclude that the legislative intent was to use the word "moderate" in comparison to the "low" risk that the Legislature found was minimally characteristic of all those sex offenders required to register. Where Tier Two notification is sought, the State's prima facie case shall include a description of the class of sex offenders required to register who constitute low-risk offenders, including a description of that risk, which need not necessarily be statistical; a further description of that class of sex offenders required to register who constitute moderate-risk offenders, including a description of that risk, not necessarily statistical; some proof, in the form of expert opinion or otherwise, that the moderate-risk offender class poses a risk of reoffense substantially higher than the low-risk class, and that the offender before the court is a moderate-risk offender who poses such a substantially higher risk.
Where Tier Three notification is sought, the State's prima facie case shall include, in addition to the description of low-risk and moderate-risk offenders and of the risks associated with each class, a description of the class of sex offenders required to register who constitute high-risk offenders, including a description of that risk, not necessarily statistical; some proof, in the form of expert opinion or otherwise, that the high-risk offender class poses a risk of reoffense substantially higher than the moderate-risk offender class, and that the offender before the court is a high-risk offender who poses that substantially higher risk.
We realize the generality of the standard against which the court will decide the correctness of the Tier level decision, but given the unavoidable uncertainties in this entire area, we do not believe it is realistic to impose requirements of proof of some statistical differentiation of the risk of reoffense between the classes or between the offender before the court and the typical offender of the other classes. We can say no more about the meaning of "substantially higher" other than that it is intended to portray a difference in risk so significant as to warrant the Conclusion that the Legislature intended this most substantial difference in the level and therefore the manner of notification.
We note that in Schall v. Martin, 467 U.S. 253, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984), the pretrial detainment of juveniles, which depended on a finding that there is a "serious risk" that the juvenile if released would commit a crime prior to his next court appearance, was challenged on the grounds that "the risk of erroneous and unnecessary detentions was too high . . . because the standard for detention was fatally vague. Id. at 278, 104 S. Ct. at 2417, 81 L. Ed. 2d at 226. The contention was that "it is virtually impossible to predict future criminal conduct with any degree of accuracy," thereby undermining, if correct, the Court's Conclusion that detention of juveniles on the basis of future dangerousness "serves legitimate regulatory purposes." Ibid. The Court responded by noting that our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct." Ibid.
We note further that quite obviously none of these standards or classes suggests the court must make a finding of likelihood of reoffense, for the Legislature did not impose either Tier Two or Tier Three notification only when it was probable that reoffense would occur, but rather only when the risk -- however quantified -- was sufficient to warrant such notification. The quality of the offense -- a sex offense -- undoubtedly led to this legislative Conclusion that notification was warranted even when reoffense was not probable, and that legislative Conclusion is unassailable in any proceedings before the court. Therefore the probability of reoffense on the part of moderate- or high-risk offenders is not the issue before the court, but rather the relatively greater risk of reoffense compared either to the low-risk offender class or the moderate-risk offender class.
In these proceedings the prosecutor, or someone designated by the prosecutor, shall, if offered as such, be presumptively accepted by the court as an expert on the risk of reoffense. We do not mean to diminish the court's power to reject that person as an expert, but simply note that a fair degree of experience with sex offenders and their characteristics, along with adequate knowledge of the research in this area -- much of which is conflicting in its Conclusions -- should ordinarily be regarded as sufficient. The procedures we have adopted are intended to assure fairness in implementing the law; they are not to thwart its implementation, and they should not be converted into long drawn-out contests between experts. Certainly we do not foreclose or discourage the production of expert testimony on both sides, but we grant to the court substantial power, beyond that permitted or used in ordinary litigation, to allow, reject, control, and limit expert testimony in order to render these proceedings administratively effective, practical, and timely. We would anticipate that in many of these cases the proceedings would last no more than several days.
As for the manner of notification, the limitations set forth in our opinion are mandatory. For Tier Two notification, only those community organizations that own or operate an establishment where children gather under their care, or where women are cared for, shall qualify, and only those that are "likely to encounter" the offender as discussed in connection with Tier Three. The notice that goes out to such organizations shall specifically direct them not to notify anyone else, that being the acknowledged intent of the statute as interpreted by the Attorney General, an interpretation with which we agree. Organizations concerned with the welfare of children and women, but not having them under their custody or care, do not qualify, and as we understand the Guidelines, the Attorney General does not take a different position. There shall be no automatic inclusion of an organization simply because it is "registered." Tier Two notification can easily amount to the same notification as required for Tier Three if these limitations are not observed.
That dangers exist beyond those organizations "likely to encounter" the offender is obvious, for the offender may travel many miles before he or she offends, suggesting the possibility that greater safety would be assured if every organization in the state were notified. That is not at all the intent of the Legislature, the law having struck the balance between the need for safety and individual rights through the "likely to encounter" standard. The word "likely" shall be taken in its usual sense: to mean not "possibly" but "likely," not in the sense of "probably" but rather in the sense of "having a fair chance to encounter."
As for the manner and extent of notification under Tier Three, "likely to encounter" clearly includes the immediate neighborhood of the offender's residence and not just the people next door. It presumably would include (since Tier Three includes Tier Two notification) all schools within the municipality, depending on its size, and we see no reason why it should not include schools and other institutions in adjacent municipalities depending upon their distance from the offender's residence, place of work, or school. We find the Attorney General's Guidelines, however, more extensive in the Tier Three proposed notification than authorized by statute. The statute confines public notification under Tier Three to "means . . . designed to reach members of the public likely to encounter the person registered," and it is that standard with which the Attorney General's Guidelines must comply. We do not understand how "community meetings, speeches in schools and religious congregations" conform to the statutory mandate. Those are means apparently designed to inform the entire community of the offender's presence, rather than means designed, as the statute requires, "to reach members of the public likely to encounter the person registered." They are means that exceed the statutory standard and are therefore not permitted.
We do not automatically exclude, however, notification to a group carefully selected to include only those "likely to encounter" the offender. There may be instances where the administrative difficulties of notification will warrant such a procedure. Furthermore, in certain instances the members of the public likely to encounter the offender may include children at a nearby school in which case it may be appropriate for the parents of such children to be notified, as well as the children, and that notification may most effectively be given at a meeting at the school that could include a description of safety measures that would enable the parents to reinforce whatever instructions the children may have been given by the school. Such groups, clearly defined and exclusively limited to those likely to encounter the offender, are quite different from the implied makeup of groups that will attend "community meetings, speeches in schools and religious congregations." Meetings of that kind are clearly inconsistent with the legislative direction that allows notification only to those likely to encounter the offender.
The factor that will ordinarily be critical to a determination of "likely to encounter" is geography -- how close is the institution or organization, in the case of Tier Two notification, to the offender's residence or place of work or school. In some municipalities, not every institution or organization that would otherwise qualify for notification may be close enough to warrant same, but in some cases, as suggested above, institutions or organizations in other municipalities may be close enough. The same observations can be made for Tier Three notification. We do not attempt to define the area around the offender's residence or place of work or school that may be included within the notification process, and assume it may differ from one locale to another. Depending upon the particular offender, factors other than geography may be considered if they are relevant to the offender's likely whereabouts, such as an offender's proclivity for certain locations, and geographic considerations may be affected by the nature of the offender's characteristics and the institution in question, e.g., a repetitive and compulsive pedophile and a large elementary school.
We assume that the media will exercise responsibility in this matter in recognition of the critical societal interest involved. In particular, we assume that the media will not knowingly frustrate the explicit legislative goal of confining notification to those likely to encounter the offender. In other settings, all sectors of the media have voluntarily and on their own initiative, where they thought the public interest was served, consistently restrained their articles, coverage and reporting, e.g., withholding the name of rape victims. We do not believe that the response of the media to this law, whatever it may be, can determine or affect its constitutionality, but clearly there is no occasion to pass on that issue for to do so assumes conduct on the part of the media that should not be attributed to it hypothetically in this litigation, and, we believe, unfairly. Whether such feared reaction would affect the legislative policy judgment in the future is not a matter for us to determine. We note only that uncertain assumptions of inappropriate and destructive future behavior on the part of either the media or the public do not, and should not, govern judicial constitutional rulings.
We suggest -- not as a measure to prevent publication for we believe that only the voluntary restraint of the media will accomplish that, or to prevent excessive notification by members of the public -- that the Legislature consider adopting a statute similar to those now in place that would impose criminal penalties on those specifically charged with keeping the information confidential, if they exceed the bounds of the confidentiality restriction. See N.J.S.A. 2A:4A-60 (unauthorized disclosure or use of juvenile record is disorderly persons offense); N.J.S.A. 2A:82-46 (unauthorized disclosure of identity of child sexual assault victim is disorderly persons offense). We note that other notification statutes apparently sometimes have such sanctions for violation of confidentiality. We note further the First Amendment problems involved in any attempt either to restrain or punish the exercise of free speech where the actor is an ordinary member of the public. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975) (holding that state may not constitutionally punish a television station for broadcasting the name of a seventeen-year old rape-murder victim when the victim's name appeared in court records open to the public); Laurence H. Tribe, American Constitutional Law 965 (2d ed. 1988) (stating that "once someone outside government acquires official information, the government cannot, absent an extraordinary showing, penalize its publication"). The need for community education in preserving confidentiality is apparent where that confidentiality is either implicit in the statute or explicit in the Guidelines. The conduct of the media and of community leaders, including public officials, may to a great extent determine the success or failure of such efforts.
To the extent the judiciary is involved in review of prosecutorial decisions, we will attempt to assure uniformity of treatment by providing for the appointment, by the Assignment Judge, of one Judge in the vicinage (who may be the Assignment Judge) to handle all applications for review. In addition, a three-Judge panel will be named to review all matters that have been concluded for the purpose of determining the extent of disparity of treatment, as well as to design a bench manual, if that seems desirable, to help guide all of the reviewing Judges throughout the state in their determinations, all in accordance with this opinion. Finally, given the in camera nature of the proceedings, we will take whatever steps are needed to keep the public informed about the implementation of these laws through annual reports by the Administrative Office of the Courts. Those reports shall describe every application in opposition to Tier Two or Tier Three classification, along with the proposed manner of notification, in as much detail as possible without disclosing the identity of the offender, or factors that might lead to such identification -- the nature of the proofs presented, the opposing proofs, the determination of the trial court, and its reasons. We hope thereby to avoid the possibility of concern on the part of the public that this law is not being implemented in accordance with the legislative intent.
We have committed to the courts the obligation of providing procedural due process. We do not suggest, however, that entities other than the courts could not constitutionally afford the process required to meet the constitutional obligation. For instance, the Legislature could designate or create an appropriate agency to oversee Tier classifications and manner of notification, so long as the basic elements of due process, such as notice, an opportunity to be heard and to confront witnesses, are provided. Such an agency might better promote uniformity in these matters than would the courts. We do not suggest one is better than the other but simply want to note that our decision does not prevent further legislative action in this area.
The complexity of the social problem addressed by the Legislature in Megan's Law is clear. The recidivism of a repetitive and compulsive sex offender is almost intractable. The problem of this form of recidivism poses an enormous challenge to the Legislature to devise a solution generally designed to remedy the problem without unnecessarily penalizing those who are its source. Those concerns -- to devise a remedy without punishing -- are of a constitutional dimension, involving both ex post facto and double jeopardy provisions. Coupled with constitutional considerations of due process, which involve protectible liberty interests, those concerns impel us to interpret the statute and revise its Guidelines to assure their constitutional application. To that end, we have determined implementation of the statute requires procedural standards while assuring that the Legislature's remedial objectives are effectuated, and to that end, its punitive effects reduced to a necessary minimum consistent with the legislative goal.
Challenges Based on the Claim that the Laws Constitute Punishment
We note at the outset those cases that have already passed on challenges to similar laws and to these laws. Registration statutes for sex offenders have almost universally been sustained in the face of attacks similar to those made here, State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (Ariz. 1992); People v. Adams, 144 Ill. 2d 381, 581 N.E.2d 637, 641, 163 Ill. Dec. 483 (Ill. 1991); State v. Ward, 123 Wash. 2d 488, 869 P.2d 1062, 1068-69 (Wash. 1994), including some recent cases involving the statutes now before us, Artway v. Attorney General of N.J., 876 F. Supp. 666, 688 (D.N.J. 1995); Doe v. Poritz, N.J. Super. , (Law Div. 1995) (slip op. at 9); Roe v. Poritz, No. UNN-L-1107-95, slip op. at 12 (Law Div. 1995) (declining to grant temporary restraining order against enforcement of registration provision and Tier One notification); the exceptions are rare, Rowe v. Burton, 884 F. Supp. 1372, 1385 (D. Alaska 1994) (concluding that Registration Act would likely be unconstitutional because it provided for public notification); In re Reed, 33 Cal. 3d 914, 663 P.2d 216, 222, 191 Cal. Rptr. 658 (Cal. 1983). Community notification laws are not as common as registration laws, *fn9 although the pace of recently adopted ones suggests they may become common, and we are aware of only five cases litigating them: they were upheld in Judge Wells' trial court decision in this case, and in Ward, supra, 869 P.2d at 1072; similar notification laws were ruled unconstitutional in State v. Babin, 637 So.2d 814, 824 (La. Ct. App. 1994), writ denied, 664 So.2d 649 (La. 1994), and the very law before us was ruled unconstitutional in Artway, supra, 876 F. Supp. at 692, with the finding of probable invalidity for interlocutory injunction purposes in Diaz v. Whitman, No. 94-, slip. op. at 9 (D.N.J. January 3, 1995).
Our Discussion and determination rely almost exclusively on federal cases, although plaintiff's constitutional challenge is based on both the State and Federal Constitutions. We know of no relevant New Jersey cases on any of these issues, except for some language in related matters, State v. Ulesky, 100 N.J. Super. 287, 241 A.2d 671 (Monmouth County Ct. 1968) (holding narcotics registration ordinance did not violate either the Bill of Attainder or Ex Post Facto Clause of the State Constitution), rev'd on other grounds, 54 N.J. 26, 252 A.2d 720 (1969), and Hazelton v. Murray, 21 N.J. 115, 121 A.2d 1 (1956) (holding constitutional in face of ex post facto challenge law barring collection of funds by union officers or agents who had been convicted of certain crimes), and for general language in cases dealing with the constitutional obligation to honor the plea bargain, e.g., State v. Warren, 115 N.J. 433, 558 A.2d 1312 (1989); State v. Salentre, 242 N.J. Super. 108, 576 A.2d 36 (App. Div. 1990). No suggestion of merit has been made that New Jersey's Constitution in relation to these challenges (as distinguished from the procedural due process challenge) should be interpreted in any way different from the Federal Constitution. *fn10
Our review of the law leads to the following Conclusions: a statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.
These are towering constitutional provisions of great importance to individual dignity, freedom, and liberty. They were adopted in England and in this country to protect against real evils: to protect against the worst, and lesser, punishments, most of them obvious on their face. The search today for hidden intent is appropriate; the scrutiny of effects in order to unmask intent and purpose, even to attribute purpose, is similarly appropriate. But while the role of these constitutional provisions as protectors of individual rights must always be fully enforced, care should be exercised not to convert them into obstacles that prevent the enactment of honestly-motivated remedial legislation by subjecting laws to tests unsuited to the underlying purpose of these constitutional provisions. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). These provisions were aimed at arbitrary and unjust actual punishment, intentionally inflicted, and their application should be guided accordingly. This does not mean that only those laws that clearly and intentionally inflict substantial punishment are to be condemned, but that the most searching inquiry is required before condemning honest laws that are free of punitive intent and designed to protect society.
Before tracing the course of the development of these rules, we deal at the outset with plaintiff's two main contentions, for they help explain the relevance of some of the decisional history. Plaintiff asserts, correctly, that deterrence and retribution are the main characteristics of criminal sanctions and, not correctly, that any law or sanction having either of those characteristics is to that extent punitive, and the sanction, proceeding, or law, therefore constitutes "punishment" for constitutional purposes, even if only in part. The contention here is that the Registration and Notification Laws not only protect against crime but deter it: both for the potential reoffender who must register and face notification, as well as for those who night otherwise commit a first sex offense but for the potential impact of registration and notification. The second contention is that government is responsible for the potential impacts that may result from notification, whether they were intended or not, and that they may be so severe as to constitute punishment.
We deal more fully with both of those contentions in our treatment of this subject, but note here that neither of those consequences invalidates a law whose sole purpose is remedial and whose provisions are designed solely to achieve that purpose; that except for the recent decisions mentioned above, no case has ever held that the inevitable but unintended deterrent impact of a regulatory law by itself renders it punitive or that non-governmental reaction to that law does. We assume that if the legislative purpose was to deter sex offenders, the law would be invalid; and we have no doubt that if the government ordered punishment, the law would be invalid. Neither, however, is the case here.
In the ex post facto area, careful reading of some of the cases is necessary to avoid misunderstanding the rule that a law solely remedial does not violate this constitutional provision simply because it may have inevitable deterrent consequences. Some ex post facto cases deal with a different section of the constitutional provision and their results cannot be transported to the section involved in this case -- prohibiting a statute that inflicts punishment in addition to that imposed by law at the time of the offense. For example, in Kring v. Missouri, 107 U.S. 221, 235, 2 S. Ct. 443, 455, 27 L. Ed. 506, 511 (1883), a law was held not to violate the Ex Post Facto Clause even though its passage, after defendant's commission of the crime, resulted in his execution which would not have occurred without it. The section of the ex post facto law involved in that case, however, prohibited modifications of the law after commission of the offense that would have the effect of increasing the substantive aspects of a defense to the crime charged, its holding being that repeal of a procedural provision that would have prevented defendant's execution did not violate that provision of the constitutional clause. Certainly the case does not in any way mean that under the "additional punishment" provision of ex post facto, remedial purposes will justify any impact -- including death -- so long as it is a consequence of the law's remedial purpose. Similarly, those laws that affect the length of a prisoner's tern, or are likely to affect it, passed after commission of the crime, obviously constitute "additional punishment" -- no one ever believed or contended that a Legislature that concluded society would be better off if those guilty of burglary were imprisoned for twenty years rather than ten could impose that additional punishment on those presently in prison serving their ten-year term on the grounds that the Legislature's intent was remedial. Similarly, laws changing qualifications for parole consideration that are likely to result in added time in prison, or that eliminate "good time" as a credit against a term of imprisonment, and that are practically certain to result in added time in prison, violate the "additional punishment" provision of the Ex Post Facto Clause. Imprisonment is a very special deterrent consequence, and in the ex post facto context, as well as in double jeopardy and other contexts, it is conclusively punishment. California Dep't of Corrections v. Morales, U.S. , 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995); Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981). Similarly, even though the cases are instructive for purposes of defining punishment, we do not read Schall, supra, 467 U.S. at 253, 104 S. Ct. at 2403, 81 L. Ed. 2d at 207, and United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987), which upheld the constitutionality of pretrial imprisonment in the face of a substantive due process attack, as suggesting imprisonment might not be punishment for ex post facto or double jeopardy purposes.
The parties and all amid are in general agreement that the laws' validity, measured against the various constitutional attacks, depends on whether they inflict punishment. The determination of punishment has ordinarily consisted of several components. An initial inquiry is whether the legislative intent was regulatory or punitive: if the latter, that generally is the end of the inquiry, for punishment results; if the former, the inquiry changes to whether the impact, despite the legislative intent to regulate, is in fact punitive, usually analyzed in terms of the accepted goals of punishment, retribution and deterrence. Despite some ambivalent language, a punitive impact -- one that effects retribution or accomplishes deterrence -- renders the law or the specific provision of the law that is attacked, punishment, but only if the sole explanation for that impact is a punitive intent. In other words, the law is characterized as regulatory in accordance with the legislative intent even if there is some punitive impact, if that impact is simply an inevitable consequence of the regulatory provisions themselves. The law is characterized as punitive only if the punitive impact comes from aspects of the law unnecessary to accomplish its regulatory purposes -- that is, if the law is "excessive," the excess consisting of provisions that cannot be justified as regulatory, that result in a punitive impact, and that, therefore, can only be explained as evidencing a punitive intent.
Our starting point will be the first case defining the scope of the Ex Post Facto Clause, Calder v. Bull, 3 U.S.(3 Dall.) 386, 1 L. Ed. 2d 648 (1798), the clause on which plaintiff most strenuously bases his claim. In Calder, the Court held that a Connecticut law, enacted after a civil decree of a probate court and allowing an appeal where none had previously been allowed, did not violate the constitutional prohibition, since that prohibition applied only to crimes, pains, and penalties that were affected by subsequent laws and not to civil matters like the probate proceeding. One of the categories of law within the proscription of the clause is a "law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Id. at 390, 1 L. Ed. 2d at 650. *fn11 The critical role of punishment in triggering the Ex Post Facto Clause was duplicated thereafter in other cases interpreting the prohibition against double jeopardy and excessive fines, the determination of what constitutes punishment substantially similar for each.
There was a movement away from punishment as the critical element in ex post facto analysis. See Kring, supra, 107 U.S. at 235, 2 S. Ct. at 455, 27 L. Ed. at 511(Calder definition not exclusive, the prohibition triggered not only by laws imposing additional punishment but those that "'alter the situation of a party to his disadvantage'"); Thompson v. Utah, 170 U.S. 343, 352, 18 S. Ct. 620, 623, 42 L. Ed. 1061, 1067 (1898) (ex post facto provision triggered by laws that deprive one of "a substantial right involved in his liberty"). That movement was not halted until the Court's decision in Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990), which held that the Calder definition was exclusive, that "disadvantage" and deprivation of "a substantial right" involved in liberty were not the test, and restored punishment as the sole measuring rod, overruling Kring and Thompson in the process. Even during those intervening years, however, punishment was the central "fact" determinative of the outcome of challenges to laws based on these constitutional provisions. It still is today.
In Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), the Court invalidated revocation of citizenship on the grounds of military desertion, the plurality opinion holding that it was cruel and unusual punishment. The initial question was whether the sanction constituted punishment at all, determined in part by reference to ex post facto cases dealing with the same issue. Id. at 95, 78 S. Ct. at 595, 2 L. Ed. 2d at 639.
In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment -- that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature.
[Id. at 96, 78 S. Ct. at 595-96, 2 L. Ed. 2d at 639-640 (footnotes omitted).]
Having concluded from its analysis of the statute that there was "no other legitimate purpose that the statute could serve" other than "simply to punish him," the Court concluded that taking away citizenship constituted punishment, id. at 97, 78 S. Ct. at 596, 2 L. Ed. 2d at 640, and, in that case, cruel and unusual punishment. Id. at 103, 78 S. Ct. at 599, 2 L. Ed. 2d at 644.
In De Veau v. Braisted, 363 U.S. 144, 80 S. Ct. 1146, 4 L. Ed. 2d 1109 (1960), a New York law that prohibited unions from collecting dues if any officer or agent of the union was a convicted felon was attacked on ex post facto grounds. The claim was that the felon, convicted before the passage of the law, was subjected to additional punishment because of the law's impact in causing the union to suspend him from his position as an officer in order to enable it to continue to collect dues, the response being that the law was regulatory, its only goal being to cleanse the unions that controlled the waterfront of criminal control. In ruling that there was no punishment the Court said:
The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the property qualifications for a profession. No doubt is justified regarding the legislative purpose of § 8. The proof is overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it became important whether individuals had previously been convicted of a felony.
[Id. at 160, 80 S. Ct. at 1155, 4 L. Ed. 2d at 1120 (citation omitted).]
The "restriction of the individual" was the alleged punishment. However, the Court held that since it was not "the legislative aim . . . to punish that individual for past activity," and since the restriction was a 'relevant incident to a regulation of a present situation," no punishment was involved. In other words, where the alleged punitive effect is not intended as such, but rather is an inevitable consequence of a law that is clearly regulatory, there is no punishment. To the same effect, in Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960), where an unusually harsh law was alleged to violate a different aspect of the Ex Post Facto Clause by making past conduct a crime, the majority quoted the plurality language of De Veau, id. at 614, 80 S. Ct. at 1374-75, 4 L. Ed. 2d at 1446, and noted that "where no persuasive showing of a purpose 'to reach the person, not the calling,' has been made, the Court has not ...