On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 29, 2009
On Motion for Summary Disposition and Writ of Mandamus.
Before Judges Cuff and Waugh.
Charles Williams, an inmate at the Adult Diagnostic and Treatment Center (ADTC), appeals a denial by the Administrator of the Department of Corrections' (DOC) Inmate Remedy System (IRS) to investigate, stop and reverse DOC's transfer of inmates to the ADTC. The inmate alleges the transferred inmates are not eligible to be housed at the ADTC. He has filed a motion for summary reversal and a writ of mandamus. We summarily remand this matter to the Administrator with instructions to research the facts presented by the inmate and issue a detailed statement of reasons, including findings of fact and conclusions of law.
Williams is serving "a lawful sentence" at the ADTC, this State's correctional and treatment facility for convicted sex offenders, N.J.S.A. 2C:47-3(k). On May 28, 2009, Williams filed an IRS form alleging "personal knowledge" that DOC was transferring prisoners to the ADTC without following N.J.S.A. 2C:47-3(h), and contrary to the language and intent of N.J.S.A. 2C:47-3(d), and asking that DOC stop the improper transfers, remove those inmates, and conduct a review of all state prisoners currently housed at the ADTC who: (i) committed their offense subsequent to December 1, 1998 (the effective date of N.J.S. 2C:47-3(h)); (ii) were found to be compulsive and repetitive by the ADTC and the sentencing court; (iii) at the time of their transfer to the ADTC had more than seven years remaining either on their sentence or on a judicially or statutorily imposed mandatory minimum; (iv) at the time . . . continue to have more than seven years remaining on their sentence or a judicially or statutorily imposed mandatory minimum; and (v) were not evaluated prior to their transfer to determine if they were amenable to and willing to participate in, the sex offender treatment program, as per N.J.S. 2C:47-3(h)(2) or (3). Said review should include an assessment to determine if the state prisoner so transferred is amenable to and willing to participate in treatment.
"In New Jersey, we have a statutory scheme in place to provide treatment for certain sex offenders immediately upon conviction, so long as they meet the requirements of that statute." In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 635 (App. Div.), certif. granted, ____ N.J. ____ (2009). That is:
Pursuant to N.J.S.A. 2C:47-1:
[w]henever a person is convicted of the offense of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping . . . the judge shall order [DOC] to complete a psychological examination of the offender . . . . The examination shall include a determination of whether the offender's conduct was characterized by a pattern of repetitive, compulsive behavior and, if it was, a further determination of the offender's amenability to sex offender treatment and willingness to participate in such treatment.
If the court finds that these criteria are met, the defendant must be placed in the custody of the ADTC ["as provided in subsection h. of this section"]. N.J.S.A. 2C:47-3(b). N.J.S.A. 2C:47-3(h)(2) also allows a defendant to request a transfer to the ADTC on a biennial basis, at which point the State is required to provide an evaluation and entertain the request. [Id. at 635-36 (emphasis added).]
N.J.S.A. 2C:47-3(h)(1) prescribes that DOC "shall confine the offender to the [ADTC] as soon as practicable" after the court imposes a sentence of seven years or less. If the sentence is more than seven years or imposed pursuant to N.J.S.A. 2C:43-7.2, DOC "shall" confine the offender in a facility designated pursuant to N.J.S.A. 30:4-91.2,*fn1 and he or she can be transferred to the ADTC if (1) it is within five years of the expected release date or parole eligibility date, and (2) DOC determines, after psychological examination, that the offender is amenable to sex offender treatment and willing to participate in such treatment. N.J.S.A. 2C:47-3(h)(2) and (3).
However, N.J.S.A. 2C:47-3(d) provides that the "court shall impose sentence in accordance with chapters 43, 44 and 45 of this Title and not as provided in subsection b. of this section if it shall appear from the report of the examination made of the offender pursuant to section N.J.S.2C:47-1 that the offender's conduct was not characterized by a pattern of repetitive, compulsive behavior or that the offender is not amenable to sex offender treatment." (Emphasis added). Williams argues that the placement of the prisoners at issue in the ADTC violates this statute.
On June 1, 2009, the correctional facility staff simply responded to Williams' IRS form as follows: "Under Title 30, the Commissioner of the Department of Corrections may transfer inmates based upon the need of the Department." IRS Administrator Bernard Goodwin approved that response on June 2. On June 4, 2009, Williams filed an administrative appeal, and the ...