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June 29, 1998

RICHARD WATERMAN, et al., Plaintiffs,
PETER VERNIERO, et al., Defendants.

The opinion of the court was delivered by: WOLIN


 WOLIN, District Judge

 The Constitution of the United States establishes courts to ensure that the government does not overstep its authority and infringe the rights of the people. Thus, courts are more than just arbiters of disputes between the people and the government--they are the wall that protects the people from the government. In this case, the Court must determine whether New Jersey violated Richard Waterman's and Michael Curtis's ("plaintiffs") rights to free speech under the First Amendment *fn1" when it enacted N.J.S.A. 2C:47-10, which prohibits inmates at the Adult Diagnostic and Treatment Center ("the ADTC") from possessing or obtaining "sexually oriented materials."

 The Court's duty to the people includes plaintiffs even though they are inmates at the ADTC, which houses repetitive and compulsive sexual offenders, namely, pedophiles and incestuous fathers. As the Supreme Court stated: "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 2259, 96 L. Ed. 2d 64 (1987). However, prisoners retain their right to free speech under the First Amendment so long as it is "not inconsistent with [their] status as prisoner[s] or with the legitimate penological objectives of the corrections system." Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 3198, 82 L. Ed. 2d 393 (1984) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 (1974)).

 Plaintiffs' status as inmates at the ADTC complicates the Court's task because the Court is acutely aware that society has become increasingly cognizant of the heinous acts that sex offenders commit and the hidden dangers that they create. This Court is particularly sensitive to the reality that pedophiles and incestuous parents prey on and harm defenseless children. Public consternation and disapprobation for this type of occurrence kindled the flame that fueled the New Jersey Legislature's enactment of Megan's Law. Thus, this case creates the unenviable judicial task of weighing the public's interest in protecting unsuspecting victims from sex offenders and the principles embodied in the Constitution.

 Plaintiffs filed suit against Peter Verniero, the Attorney General of New Jersey, Jack Terhune, the New Jersey Commissioner of Corrections, and William Plantier, Superintendent of the ADTC, seeking to temporarily restrain New Jersey and defendants from enforcing N.J.S.A. 2C:47-10. On June 1, 1998, this Court issued an Order temporarily restraining New Jersey from enforcing N.J.S.A. 2C:47-10 and directing defendants to appear on June 16, 1998, to show cause why this Court should not preliminarily enjoin New Jersey from enforcing N.J.S.A. 2C:47-10.

 Through application of the separation of powers doctrine, the Court acknowledges that it should defer to prison officials on penological issues and decisions. However, in this case, the degree of deference is lessened because the prison administrators were not involved in the decisionmaking process. Accordingly, the Court has determined that United States Supreme Court precedent and the principles embodied in the Constitution mandate that the Court enter a preliminary injunction and conduct a full trial to determine whether N.J.S.A. 2C:47-10 is constitutionally infirm. As shown in the body of this Opinion, the Court reached this conclusion after a thorough analysis of the four factors that must be considered prior to the issuance of a preliminary injunction.

 At the outset, the Court notes that in deciding to issue the preliminary injunction, the Court relied on three bases. First, the Deputy Attorney General's comments during oral arguments that prison administrators planned to enforce the statute in a realistic fashion heavily influenced the Court's decision. Those comments indicate a strong probability that prison officials will arbitrarily enforce N.J.S.A. 2C:47-10 because they will have unlimited discretion in determining which "sexually oriented materials" enter the ADTC. Although New Jersey wants the Court to "trust" it in its enforcement of the statute, the potential for arbitrary enforcement portends that plaintiffs will prevail on the merits. Second, the language of the statute is so broad that it prohibits constitutionally permissible speech. Third, the statute's failure to define "associated anatomical area" chills plaintiffs' rights to free speech because they do not have fair notice of what the statute bans. For those reasons, the Court will preliminarily enjoin New Jersey from enforcing N.J.S.A. 2C:47-10.


 I. Facts

 A. The ADTC and Plaintiffs

 In 1976, the New Jersey Department of Corrections ("DOC") opened the ADTC in Avenel, New Jersey for the sole purpose of housing and serving sex offenders, i.e., pedophiles, child molesters, incestuous men, or rapists. To be admitted to the ADTC, sex offenders must exhibit sex offending behavior that is "repetitive and compulsive." The ADTC does not, however, house every repetitive and compulsive sex offender because of space limitations. Non-repetitive and non-compulsive sex offenders are housed in other institutions with the general prison population. The ADTC contains 750 inmates, and approximately 70% of the inmates are pedophiles and incestuous fathers.

 The ADTC attempts to rehabilitate its sexual offenders differently than do the other prison facilities. The therapeutic staff, which includes psychologists, at the ADTC provides the inmates with intense sex offender treatment in the hope that it can reduce recidivism and contribute to public safety. Specifically, the ADTC employs a four-step program that "is designed to present information and therapeutic experiences in a progressive order to ameliorate the offender's proclivity towards criminal sexual behavior." (Graffin Aff. P 7). The different steps focus on the concepts of victim empathy and the offender's deviant sexual arousal. For example, the final step requires the offenders to demonstrate victim sensitivity and an ability to connect emotionally with others.

 Plaintiff Waterman is currently serving a fifty-four-year sentence with twenty years of parole ineligibility for sexually abusing a nine-year old girl. Waterman has two previous convictions for pedophiliac offenses--one for abducting and raping an eleven-year old girl and the other for fondling a nine-year old girl in Florida. Plaintiff Curtis is currently serving a twenty-year sentence with ten years of parole ineligibility for sexually abusing and taking nude photographs of a fourteen-year old boy. Curtis also has a prior pedophiliac conviction--he received a sentence of probation and psychotherapy for sexually assaulting a fifteen-year old boy in Arizona.

 B. The Enactment of N.J.S.A. 2C:47-10

 In March 1993, members of the New Jersey Assembly Judiciary, Law and Public Safety Committee toured the ADTC because it was considering New Jersey's involuntary commitment law. During the tour, Superintendent Plantier told the members of the Committee that the facility needed an additional $ 2 million for psychological staffing, research, and other program improvements. Plantier also conceded that approximately twenty-five percent of the inmates were incurable. At the time of the tour, the ADTC permitted inmates to pin nude photographs of women and some sexually oriented pictures on their walls. Some inmates took advantage of that opportunity. Prison officials believed that such photographs and pictures were progress for some inmates because in the past, they may have preferred photographs of little children in sexually explicit situations. The ADTC prohibited inmates from possessing photographs of children in their underwear. See Ron Marsisco, Legislators Tour Avenel Sex Center, The Star Ledger, March 19, 1993, at 1993 WL 3454117.

 Following Jesse Timmendequas brutal murder of seven-year-old Megan Kanka, a State Senator introduced a Bill to ban obscene materials at the ADTC. *fn2" When the Bill was introduced, Plantier commented that "traditional pornography" was not the problem for the ADTC's pedophiles, and that he and other prison officials were more concerned about the children's sections in old Sears and J.C. Penney catalogs. See Bill Sanderson, Proposals to Treat Molesters Questioned, The Record, October 7, 1994, at A3.

 Around the same time, New Jersey formed an eighteen-member task force to study the effectiveness of the ADTC. In late 1994, the task force visited the ADTC, and found that one inmate had sexually oriented photographs of a women on his walls. The task force also observed the artwork, including some nude pieces, in the art room where some inmates take five art classes per week. During the first public hearing, administrators at the ADTC stated that they did not know whether its treatment worked because they did not have the resources to conduct research. See Ivette Mendez, Reality of Avenel Contradicts Public Perception, The Star Ledger, November 13, 1994, at 1994 Wl 9378674. On June 19, 1995, the task force issued a report in which it made findings and recommendations. The twenty-page report did not mention or discuss whether inmates should be allowed to possess sexually oriented materials.

 In early January 1998, the New Jersey Assembly and Senate passed a Bill that banned "sexually oriented and obscene materials" from the ADTC. The Senate passed the Bill without debate or dissent. See Eugene Kelly, Bill Ok'd to Ban Porn in Prison Would Cut Sex Offenders' Access, The Record, January 9, 1998, at A1. Prior to passing the Bill, neither the Assembly nor the Senate conferred with Dr. Nancy W. Graffin, the Program Director for the Treatment Services Department at the ADTC. In fact, she did not learn about its enactment until May 1998.

 On January 9, 1998, a reporter wrote: "When a group of legislators toured the state prison for sex offenders two years ago, they were outraged to find pictures of naked women in some of the cells, and promised to do something about it." Id. Apparently, the drawings of naked bodies in the art class also offended certain lawmakers. See id. The DOC opposed the Bill, however, because it viewed it as vague, unnecessary, impractical, and perhaps unconstitutional. *fn3"

 The DOC also reiterated its position that the inmates' problem was child and violent pornography, and not adult pornography, and that it was more concerned about the children's section of the Sears catalog. See id. Plantier specifically stated that counselors believed that the pedophiliac inmates' viewing of adult pornography was a step in the right direction. See id.

 On January 19, 1998, Governor Whitman signed N.J.S.A. 2C:47-10, entitled as Receipt, possession or distribution of sexually oriented material, into law. The statute provides:

a. As used in this act, "sexually oriented material" means any description, narrative account display, or depiction of sexual activity or associated anatomical area contained in, or consisting of, a picture or other representation, publication, sound recording, live performance, or film.
b. An inmate sentenced to a period of confinement in the Adult Diagnostic Treatment Center shall not receive, possess, distribute or exhibit within the center sexually oriented material, as defined in subsection a. of this section. Upon the discovery of any such material within the center, the commissioner shall provide for its removal and destruction, subject to a departmental appeal procedure for the withholding or removal of such material from the inmate's possession.
c. The commissioner shall request an inmate sentenced to confinement in the center to acknowledge in writing the requirements of this act prior to the enforcement of its provisions. Any inmate who violates the provisions of subsection b. of this section shall be subject to on-the-spot sanctions pursuant to rules and regulations adopted by the commissioner.
d. A person who sells or offers for sale the material prohibited in subsection b. either for purposes of possession or viewing or who receives, possesses, distributes or exhibits any text, photograph, film, video or any other reproduction or reconstruction which depicts a person under 18 years of age engaging in a prohibited sexual act or in the simulation of such an act as defined in section 2 of P.L. 1992, c. 7 (C.2A:30B-2), within the center shall be considered to have committed an inmate prohibited act and be subject to sanctions pursuant to rules and regulations adopted by the commissioner.

 The effective date of the statute is June 1, 1998.

 Prior to the enactment of N.J.S.A. 2C:47-10, prison officials throughout the DOC had the authority to remove obscene publications from inmates pursuant to N.J.A.C. 10A:18-4.9(a)(6). Obscene materials are defined as:

The publication contains material which, based upon the experience and professional expertise of correctional administrators and judged in the context of a correctional facility and its paramount interest in security, order and rehabilitation:
i. Taken, as a whole, appeals to a prurient interest in sex;
ii. Lacks, as a whole, serious literary, artistic, political or scientific value; and
iii. Depicts, in a patently offensive way, sexual conduct including patently offensive representations or descriptions of ultimate sex acts, masturbation, excretory functions, lewd exhibition of the genitals, sadism or masochism.

 No one disputes, however, that N.J.S.A. 2C:47-10 prohibits more materials than does ...

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