On appeal from Superior Court of New Jersey, Law Division, Essex County, SV-72-00.
Before Judges King and Winkelstein.
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
These are combined appeals from several judgments under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4- 27.24 to -27.38, involving the commitment of E.D. to the Special Offenders Unit at the Northern Regional Unit (NRU) in Kearny. Following a commitment hearing at which testimony from experts for both sides was presented, Judge Freedman found on February 14, 2001 that E.D. posed a threat to the community because he suffered from antisocial personality disorder and polysubstance abuse which, in combination, made him a sexually violent predator. E.D. was committed to the NRU. Fourteen months later, after E.D.'s annual review hearing, Judge Perretti found on April 19, 2002 that E.D. no longer qualified as a sexually violent predator under the SVPA and ordered his unconditional discharge. We affirm the appeals from each commitment hearing, with modification of Judge Perretti's order discharging appellant unconditionally.
[We do not publish I through V of our opinion because the guidelines for publication are not met. R. 1:36-2(d).]
We turn to the State's argument that the trial court's failure to impose conditions upon E.D.'s discharge constituted a mistaken exercise of discretion. According to N.J.S.A. 30:4- 27.32a, if the court finds by "clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall" continue his involuntary commitment. However, "[i]f the court finds that the person is not a sexually violent predator, the court shall so order." N.J.S.A. 30:4-27.32b. The subject of a conditional discharge is raised in N.J.S.A. 30:4-27.32c(1), which notes, in part, that
[i]f the Department of Human Services recommends conditional discharge of the person and the court finds that the person will not be likely to engage in acts of sexual violence because the person is amenable to and highly likely to comply with a plan to facilitate the person's adjustment and reintegration into the community so as to render involuntary commitment as a sexually violent predator unnecessary for that person, the judge may then order the person be conditionally discharged in accordance with a discharge plan. The statute does not contain language which allows the judge to impose conditions upon discharge once a person is determined by the court to no longer be a sexually violent predator. In this respect, the SVPA does not mirror the statute which was upheld in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), which expressly gives the trier of fact the right to conditionally release a committee. See Kan. Stat. Ann., §§ 59- 29a08 and 59-29a18.
Given the statutory language of the SVPA, the State does not argue that the act provides the authority for the hearing judge to order a conditional discharge. Rather, the State submits that the right to conditionally discharge a person who has been committed under the SVPA is an inherent power of the court. We agree.
In State v. Carter, 64 N.J. 382, 386 (1974), overruled on other grounds by State v. Krol, 68 N.J. 266 (1975), the Court considered the propriety of a conditional release for "those adjudicated insane both at the time of the commission of an offense and at trial, necessitating commitment" to a State hospital. At that time, insane persons were committed pursuant to N.J.S.A. 2A:163-2, which provided, in part, that they were to be confined "until such time as [they] may be restored to reason . . . ." Id. at 390. The statute did not provide for conditional release. Concluding that the court had the inherent authority to conditionally discharge a person so committed, Justice Pashman, speaking for the Court, looked to the fundamental purpose of the legislation, the "protection of the innocent from injury." Id. at 391. He stated:
The fact that the Legislature has acted to provide a remedy does not mean that the judicial branch is limited to the boundary lines of strict legislative expression in fashioning or denying remedies in a particular case . . . . Contemporary judicial decisions announcing a new rule of law 'are the product, not only of re- evaluation of abstract principles of justice but also practical considerations . . . .'
If there is a distinction between the court's authority to provide for probation in the criminal context and an analogous release system as to those adjudicated insane, this Court fails to discern it. The courts have the power to fashion psychiatric out-patient probation in the form of conditional releases. [Id. at 392-93 (internal citations and footnote omitted).]
In Carter, the patient's "underlying or latent personality disorder" was incurable, but in a state of remission. The Court found that a person with "such a mental state" should be "subject to supervisory and clinical control for the protection of society." Id. at 394. On the other hand, the Court recognized that "[w]hen a patient is in a state of remission and there are sufficient medical assurances that he will not pose a threat to the public safety if at large, prolonged confinement can serve no therapeutic purpose." Ibid. To reconcile these competing policies, "the protection of society . . . as well as the patient's rights," ...