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In re Commitment of W.Z.

July 11, 2002

IN THE MATTER OF THE COMMITMENT OF W.Z.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 339 N.J. Super. 549 (2001).

SYLLABUS BY THE COURT

In this appeal the Court considers a challenge to the constitutionality of the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A.30:4-27.24 to -27.38, which became effective August 12, 1999. The SVPA authorizes a state, through civil commitment proceedings, to commit involuntarily a person who is found to be a sexually violent predator, which requires proof that the person has been convicted, adjudicated delinquent, or found not guilty by reason of insanity of a sexually violent offense and that the person "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26.

W.Z. appeals from a judgment finding him to be a sexually violent predator under the Act and committing him to the Special Offenders Unit at the Northern Regional Unit (NRU) in Kearny. The Court addresses the Act and the proceedings involving W.Z. in the light of the decision of the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002), which was decided while W.Z.'s appeal to this Court was pending. Crane held that it is unconstitutional to civilly commit a sex offender involuntarily without making a determination about the person's "lack of control" over his or her sexually violent behavior.

W.Z. has an extensive criminal and juvenile record, including three sexual offenses against women, the first of which occurred in 1982 when W.Z. was sixteen years old and the others occurring in 1989 and 1994. W.Z. acknowledges that based on his record, he has been convicted of a "sexually violent offense," one of the requirements for commitment under the SVPA.

The proceedings to commit W.Z. under the SVPA were initiated by the State in December 1999 when W.Z. was nearing the end of his sentence for the 1994 criminal sexual contact conviction. He was committed temporarily to the NRU based on two clinical certifications by physicians. Additional psychological testimony was presented at the final hearing in April 2000. The psychologists who testified at the hearing agreed that W.Z. does not have a sexual compulsion but found him to suffer from various disorders that gave him a propensity to act antisocially and violently. The expert who testified on behalf of W.Z. concluded that W.Z. possessed a "great likelihood" of future violent behavior and anticipated that twenty percent of W.Z.'s future violent behavior would involve acts of sexual violence. All but one of the five actuarial risk-assessment tools used by the experts placed W.Z. within a high range of risk of repeating his sexually criminal conduct. The fifth placed him in the moderate range..

The trial court found that the record contained clear and convincing evidence that W.Z. was unable to control his dangerous sexual behavior and that he was likely to commit additional sexual offenses in the reasonably foreseeable future. Accordingly, the court ordered W.Z. committed to the NRU.

W.Z. appealed to the Appellate Division, which rejected his contention that substantive due process bars the commitment of a sex offender who has volitional but not emotional or other control over sexually dangerous behavior. Relying on Kansas v. Hendricks, The opinion of the court was delivered by: LaVECCHIA, J.

Argued January 28, 2002

In 1998 the Legislature passed the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to - 27.38; L. 1998, c. 71, effective August 12, 1999. We are informed that since its enactment the State has used the Act to civilly commit approximately 225 sex offenders. This appeal presents our first opportunity to consider a challenge to the Act's constitutionality.

W.Z. appeals from a judgment finding him to be a sexually violent predator under the SVPA and committing him to the Special Offenders Unit at the Northern Regional Unit (NRU) in Kearny, New Jersey. In its decision below, the Appellate Division rejected W.Z.'s constitutional and other challenges and upheld W.Z.'s commitment. While W.Z.'s appeal to this Court was pending, the United States Supreme Court issued its decision in Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002). In that case the Court clarified the substantive due process limitations on a state's ability to identify the mental abnormalities that render a sex offender eligible for civil commitment because of his or her dangerousness. Specifically, Crane held that a state may not civilly commit a sex offender without making a determination about the person's "lack of control" over his or her sexually violent behavior. Id. at , 122 S. Ct. at , 151 L. Ed. 2d at . In so holding, the Court rejected the claim that a sex offender's lack of control must be demonstrated to be total or complete; rather, the Court acknowledged a state's authority to commit those sex offenders who have "serious difficulty in controlling [their] behavior." Ibid.

The substantive due process limitations expressed in Crane inform our consideration of this challenge to the constitutionality of the SVPA.

I.

The facts of W.Z.'s extensive criminal and juvenile record and the expert testimony adduced at his commitment hearing were detailed in the Appellate Division's opinion, IMO Commitment of W.Z., 339 N.J. Super. 549, 556-61 (App. Div. 2001), and are incorporated as if fully set forth herein. We recite only a summary.

Three of W.Z.'s offenses were of a sexual nature and were committed against women. Those are aggravated assault and criminal sexual contact committed in 1982 when W.Z. was 16 years old; aggravated sexual assault, aggravated assault, criminal restraint, and terroristic threats arising from W.Z.'s attempted rape of a woman he met at a bar in 1989; and criminal sexual contact of a woman he accosted in 1994. The parties do not dispute that, based on that criminal record, W.Z. has been convicted of a "sexually violent offense" required as a predicate for civil commitment under the SVPA. N.J.S.A. 30:4- 27.26.

Over a period of years, numerous clinicians have evaluated W.Z. to determine whether he poses a threat of committing additional sexual offenses. In 1991, following his first conviction for aggravated sexual assault, W.Z. was evaluated by Dr. Kenneth McNiel at the Adult Diagnostic Treatment Center (ADTC) in Avenel for the purpose of determining his eligibility for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (requiring diagnosis of repetitive and compulsive sexual behavior). That evaluation diagnosed W.Z. as suffering from an antisocial personality disorder with narcissistic features. Dr. McNiel noted concerns about W.Z.'s interpersonal explosiveness, self-indulgence, violent potential, and anger towards women, but opined that the 1989 sexual assault was more an act of antisocial violence and impulsive exploitation than of sexual compulsivity. Therefore, W.Z. was determined to be not eligible for sentencing under the Sex Offender Act.

The State initiated the present commitment proceeding in December 1999 when W.Z. was approaching the expiration of his sentence for the 1994 criminal sexual contact conviction. The petition for civil commitment was supported by clinical certificates prepared by Leonard B. Archer, M.D., and James R. Varrell, M.D. Each certified that W.Z. was a person "suffer[ing] from a mental abnormality (as defined by the Act) or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment." Based on the petition and accompanying certifications, the trial court found reasonable cause to commit W.Z. temporarily to the NRU pending a final hearing.

At the final hearing conducted in April 2000, the State presented the testimony of Dr. Jackson T. Bosley, a psychologist at the NRU, and Dr. Stanley R. Kern, a NRU psychiatrist. Dr. Anthony V. D'Urso, a licensed clinical psychologist and professor of graduate psychology at Montclair State University, testified on behalf of W.Z. As noted by the Appellate Division, the testimony of the experts "was surprisingly consistent and raised few issues of fact." IMO of Commitment of W.Z., supra, 339 N.J. Super. at 559.

Dr. Bosley evaluated W.Z. at the time that the petition for commitment was filed in December 1999. His report stated that W.Z. poses a risk as a violent predator, and that W.Z.'s past behavior indicates that he "can use sexuality as a weapon in his criminal acts." At the hearing, Dr. Bosley testified that he performed the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), the California Actuarial Risk Assessment Table (CARAT), the Adult Sex Offender Risk Assessment Schedule (ASORAS), the Static-99, and the Registrant Risk Assessment Scale (RRAS) on W.Z. and found that all but one of the actuarial tools placed W.Z. within a high range of risk of sexually recidivating. The RRAS placed W.Z. within the moderate risk range. Based on the tests used during his evaluation of W.Z., and the lack of discrepancy in their results, Dr. Bosley opined that W.Z. posed a high to moderate risk to recidivate. In respect of W.Z.'s volitional control over his acts, Dr. Bosley opined that W.Z. did not possess sufficient internal controls to curb his antisocial behavior and expressed concern that if he were to be released from a structured and supervised environment, W.Z. would pose a high or moderate risk of committing another sexual offense.

Dr. Kern likewise issued a report on his evaluation of W.Z. and testified at the hearing. He stated that W.Z. suffers from intermittent explosive disorder, antisocial personality disorder with narcissistic tendencies, and alcohol abuse. Dr. Kern explained that antisocial personality disorder is "characterized by inability to behave - to control one's behavior" and that "if that includes sexual acting out, that will include sexual acting out." In Dr. Kern's opinion, W.Z.'s mental disorders affect his emotional and volitional functions, causing him to behave in an antisocial fashion and to pose a danger to society, particularly in a sexual way. Dr. Kern recommended that W.Z. remain at the NRU because he presents a danger to society. In his testimony, and in his written report, Dr. Kern conceded that W.Z.'s compulsive behavior is part of his general criminal behavior, that W.Z. does not have a sexual compulsion, and that although he retains the ability to exert volitional control over his sexual behavior, he does not exercise that control.

W.Z. presented testimony by Dr. D'Urso, who had evaluated W.Z. in February 2000. In his report of that evaluation, Dr. D'Urso diagnosed W.Z. with antisocial personality disorder, substance abuse, and intermittent explosive personality disorder. Dr. D'Urso found that W.Z.'s sexual behavior was more "situational" than compulsive, and that although W.Z. has a propensity to commit antisocial crimes his criminal history does not reflect a pattern of compulsive sexual conduct. At the civil commitment hearing, Dr. D'Urso testified that W.Z. tends to minimize his prior offenses and is highly impulsive, immature, and hedonistic. Dr. D'Urso also stated that W.Z. does not maintain intimate relationships with people, demonstrates little remorse, and exhibits poor insight into his own behavior. Dr. D'Urso opined that W.Z.'s three sexual offenses "appear to be related to [W.Z.'s] general pattern of antisocial behavior and the violence and aggression he demonstrates against people when he's angry, frustrated." He added that the offenses "also appear to be related to intoxication and severe alcohol abuse." Dr. D'Urso further stated that notwithstanding that W.Z. retains volitional control over his acts, he suffers from an antisocial personality disorder that causes him to ignore the rights of others. Based on the repetitive nature of W.Z.'s criminal offenses, Dr. D'Urso concluded that W.Z. possesses a "great likelihood" of future violent behavior, and that he would anticipate that twenty percent of W.Z.'s future violent behavior would involve acts of sexual violence.

At the commitment hearing W.Z. argued that he did not fall within the purview of the SVPA because he was not diagnosed as suffering from a sexual compulsion or a paraphilia. He also argued that to commit an individual under the SVPA the State must prove that a sex offender has an inability to ...


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