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In re Civil Commitment of W.X.C.

November 9, 2010

IN THE MATTER OF THE CIVIL COMMITMENT OF W.X.C., SVP 458-07


On certification to the Superior Court, Appellate Division, whose opinion is reported at 407 N.J. Super. 619 (2009).

SYLLABUS BY THE COURT

(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).

In this appeal, the Court considers a challenge to the constitutionality of the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

Over the span of several months in 1992, defendant burglarized two homes multiple times, raping two women who lived in them. One was raped at knifepoint and the other while defendant threatened her by telling her that he had a gun. Later that year, defendant walked into a nursing home where he overpowered his third female victim, dragging her into a bedroom and demanding that she perform a sex act on him. Only the arrival of the police saved her from his assault.

In 1993, charged with numerous counts in two indictments, defendant entered a guilty plea pursuant to a plea agreement. Because of the nature of the offenses, defendant was evaluated to determine whether he qualified as a sex offender who would be sentenced to treatment at the Adult Diagnostic and Treatment Center (ADTC) pursuant to the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. The essential test for a sentence to the ADTC is whether the offender is a repetitive and compulsive sex offender who is in need of treatment. The ADTC evaluation revealed that although defendant was a repetitive sex offender, he was not a compulsive one, as a result of which he did not meet the statutory criteria for sentencing to the ADTC under the Sex Offender Act. Defendant was sentenced in accordance with the plea agreement. During his incarceration, defendant did not request or receive treatment related to his sexual offenses, and he did not request that he be re-evaluated for a transfer to the ADTC.

In 1998, while defendant was serving his sentence, the Legislature enacted the SVPA, which, in relevant part, created a framework to use in identifying and committing for specialized treatment those sex offenders who were "suffer[ing] 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. In 2007, as defendant was nearing the end of his prison term, the State filed a petition seeking to have him civilly committed pursuant to the SVPA. Defendant immediately challenged the State's petition, arguing that because he had not been provided with sex offender treatment while he was incarcerated, civil commitment would violate the ex post facto clauses of the federal and state constitutions.

The civil commitment court rejected defendant's challenge, concluding that the SVPA is not unconstitutional on its face or as applied to someone, like defendant, who did not receive treatment while incarcerated. The court concluded, after extensive expert testimony, that defendant met the statutory test for SVPA commitment. In particular, the court found, by clear and convincing evidence, that defendant is a sexually violent predator who is highly likely to reoffend if not committed to the Special Treatment Unit (STU) and treated. The court therefore declared defendant to be a sexually violent predator and committed him to the STU for treatment.

On appeal, defendant argued, among other things, that the SVPA is unconstitutional either on its face or as applied to individuals who have not been offered treatment during their incarceration. He did not contend that the SVPA is generally punitive, but attacked it as unconstitutional because, in his view, the statute uses civil commitment as a vehicle for further punishment. In a published opinion, the Appellate Division rejected all of defendant's arguments, concluding in relevant part that the SVPA is not unconstitutional on its face or as applied to an individual, like defendant, who was not provided with sex offender treatment at the ADTC during his incarceration.

The Supreme Court granted defendant's petition for certification, in which he sought the Court's review only of his constitutional attack on the SVPA.

HELD: The Court concludes that the Sexually Violent Predator Act (SVPA) is remedial and regulatory in nature, and that its incidental effects, including the use of confinement as part of the treatment methodology, do not alter the essential character of the statute. The Court thus declines to conclude that the SVPA is transformed into a punitive, and therefore unconstitutional, enactment merely because it applies to some individuals, like defendant, who were not provided with specialized treatment prior to civil commitment.

1. This Court has thoroughly analyzed the history and meaning of the ex post facto clauses of the federal and state constitutions in addressing an attack on the registration and notification provisions of Megan's Law. The Court has noted that a statute violates the ex post facto clause if it operates so as to: "(1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after it commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." State v. Muhammad, 145 N.J. 23, 56 (1996). The Court has specifically emphasized that, in the SVPA, the Legislature intended to create a civil, rather than a penal statute, with two fundamental purposes: to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality. The Court has recognized that by utilizing confinement as part of treatment, the SVPA has some punitive impact, and that this aspect of the statute is "onerous." Nevertheless, the Court has concluded that this does not violate the ex post facto clause because it is simply an "inevitable consequence of the regulatory provisions." State v. Bellamy, 178 N.J. 127, 138 (2003). The choice to include confinement as part of the means through which the statutory goals are achieved does not transform the statute automatically into one that is punitive. In Allen v. Illinois, 478 U.S. 364 (1986), the United States Supreme Court set forth the framework that has been the guide for constitutional attacks on statutes of this type ever since: "Where a defendant has provided 'the clearest proof' that 'the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' that the proceeding be civil, it must be considered criminal." Id. at 369. Focusing on the distinctions between the State's goals of punishment and of providing treatment, the Court has declined to equate the loss of liberty occasioned by civil commitment with that imposed after criminal prosecution and rejected the challenge to the statute's constitutionality. The Court's conclusion remains that the SVPA is remedial and regulatory in nature, and that its incidental effects, including the use of confinement as part of the treatment methodology, do not alter the essential character of the statute. The Court thus declines to conclude that the SVPA is transformed into a punitive, and therefore unconstitutional, enactment merely because it applies to some individuals, like defendant, who were not provided with specialized treatment prior to civil commitment. (Pp. 7-20)

2. Defendant's second attack on the constitutionality of the SVPA as applied to him and offenders like him is based on a fundamental fairness argument. In the end, the fatal flaw in defendant's argument lies in its failure to appreciate that the Sex Offender Act and the SVPA are designed to serve different purposes and strive to achieve them through different regulatory mechanisms. There is no basis for defendant's assertion that because only some sex offenders are found eligible for ADTC treatment, there is a constitutional infirmity as to all of the others. Viewed in tandem, as they were intended to be, the Sex Offender Act and the SVPA represent a carefully constructed framework for maximizing the goals of both treatment and punishment for offenses. The mere fact that some offenders, who meet the definition of sex offenders qualified for treatment at the ADTC, in fact receive that treatment, does not equate with a finding that all other offenders who have committed similar crimes, but who do not meet the stringent ADTC guidelines, are being treated unfairly. The Court declines to conclude that an offender, like defendant, who did not qualify for that program based on its legitimate clinical and diagnostic criteria, was entitled to demand admission to the ADTC. (Pp. 20-29)

3. Only if there is a hidden punitive purpose to the SVPA's delay in offering treatment can the Court say that it is unconstitutional as applied. Nothing in the history of the enactment of the SVPA or the amendments to the Sex Offender Act and nothing in the operation of that statutory scheme suggests such a purpose. Nor does any evidence found in the available statistics support such a claim. Instead, the available statistics demonstrate that only a tiny fraction of potentially SVPA-eligible offenders who receive no treatment in prison eventually are civilly committed. There is, in the final analysis, no basis on which to conclude that there is any constitutional infirmity in the SVPA as applied to defendant or others like him who do not qualify for ADTC treatment, who therefore do not access specialized sex offender treatment during their incarceration, and who thereafter are deemed to be sexually violent predators as to whom civil commitment for treatment at the Special Treatment Unit is appropriate. The operation of the SVPA is neither punitive nor fundamentally unfair and the Court therefore rejects defendant's arguments that it is unconstitutional as applied to him and other offenders like him. (Pp. 29-31)

4. The Court concludes with a few observations prompted by the approach advanced in the dissent, noting that, although insistent in its tone, the dissent's constitutional argument rests on factual and legal propositions that are simply false. First, the dissent presumes that one can identify at the time of sentencing those sex offenders who will eventually be committed to the Special Treatment Unit. That assumption, however, is unsubstantiated. Second, the dissent's Eighth Amendment argument is fundamentally flawed. No court has concluded that the failure to provide sex offender treatment during incarceration equates with cruel and unusual punishment and the dissent does not point to any. Third, the dissent's reliance on decisions concerning the rights that civilly committed, mentally disabled, persons have to treatment confuses the rights that this defendant might have after he is committed to the SVPA with rights that he might or might not have while incarcerated. Finally, the Legislature may well choose to revisit the statutes relating to sex offenders, and it might do so in light of the fact that this specific offender was identified as a potential SVPA committee two years before his expected release. However, there being no constitutional infirmity in the statutory framework now in place governing sex offenders, that choice remains for the Legislature. (Pp. 31-35)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN filed a separate, DISSENTING opinion, in which JUSTICE LONG joins, stating that, although he would not grant W.X.C. the relief he seeks -- his freedom -- because his release would present an immediate danger to the public, denying an inmate treatment for a mental abnormality or personality disorder and then, when he is about to be released after serving his sentence, justifying his civil commitment because of a lack of treatment is not a rational public policy but a charade that violates fundamental rights guaranteed under both the United States and New Jersey Constitutions.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE, and RIVERA-SOTO join in JUSTICE HOENS' opinion. JUSTICE ALBIN filed a separate, dissenting opinion, in which JUSTICE LONG joins.

The opinion of the court was delivered by: Justice Hoens

Argued April 26, 2010

In this appeal, we consider a challenge to the constitutionality of the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. That challenge is both a narrow and specific one in which defendant W.X.C. asserts that the SVPA is unconstitutional as applied to individuals, like himself, who are committed pursuant to its terms when they were not provided with sex offender treatment while incarcerated for their underlying criminal sexual offenses. Defendant bases his constitutional challenge on two related arguments, contending that in those circumstances the SVPA is punitive, therefore violating the federal and state ex post facto clauses, see U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3, and that it is fundamentally unfair. Because our analysis of the statute compels us to conclude that the SVPA is neither punitive nor unfair, we reject defendant's arguments and we affirm.

I.

The essential facts that gave rise to defendant's conviction, incarceration, and SVPA commitment are set forth in the Appellate Division's published decision affirming the order of commitment. See In re Civil Commitment of W.X.C., 407 N.J. Super. 619 (App. Div. 2009). We therefore need not repeat either the underlying facts or the opinions expressed by the mental health professionals that formed the basis for the court's decision that defendant meets the statutory test for SVPA commitment. Rather, because of the narrow focus of defendant's challenge, we need only briefly set forth the relevant facts. In short, over the span of several months in 1992, defendant burglarized two homes multiple times, raping two women who lived in them. One was raped at knifepoint and the other while defendant threatened her by telling her that he had a gun. The second woman was also forced to drive defendant to an automatic teller machine and to withdraw money for him. Later that year, defendant walked into a nursing home where he overpowered his third female victim, dragging her into a bedroom and demanding that she perform a sex act on him. Only the arrival of the police saved her from his assault.

Charged with numerous counts in two indictments, in 1993, defendant entered a guilty plea to two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of second-degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of first-degree kidnapping, N.J.S.A. 2C:13-1(b); two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; and one count of second-degree burglary, N.J.S.A. 2C:18-2; together with guilty pleas to other crimes not germane to this appeal. The plea agreement called for an aggregate sentence of twenty-four years in prison, with a twelve-year period of parole ineligibility.

Because of the nature of the offenses, defendant was evaluated to determine whether he qualified as a sex offender who would be sentenced to treatment at the Adult Diagnostic and Treatment Center (ADTC) pursuant to the Sex Offender Act, N.J.S.A. 2C:47-1 to -10. The essential test for a sentence to the ADTC is whether the offender is a repetitive and compulsive sex offender who is in need of treatment. The ADTC evaluation revealed that although defendant was a repetitive sex offender, he was not a compulsive one, as a result of which he did not meet the statutory criteria for sentencing to the ADTC under the Sex Offender Act.

At sentencing, defendant asked the court to send him to the ADTC in spite of the fact that he did not meet the sentencing criteria. As part of his effort to avoid prison through a sentence to the ADTC, defendant told the court that he had been sexually abused as a child. He later conceded that his claim of sexual abuse was a falsehood he told hoping to gain sympathy from the court so that he might end up with a different or a lower sentence than the one to which he consented in his plea agreement. His efforts were rejected because of the clear constraints on sentencing contained in the Sex Offender Act and he was sentenced in accordance with the plea agreement. During his incarceration, defendant did not request or receive treatment related to his sexual offenses, and he did not request that he be re-evaluated for a transfer to the ADTC.

In 1998, while defendant was serving his sentence, the Legislature enacted the SVPA, which was part of a package of bills recommended in an October 1997 report by the Task Force for the Review of the Treatment of the Criminally Insane. In relevant part, the SVPA created a framework to use in identifying and committing for specialized treatment those sex offenders who were "suffer[ing] 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; see In re Commitment of W.Z., 173 N.J. 109, 119-21 (2002) (outlining essential provisions of SVPA).

In 2007, as defendant was nearing the end of his prison term, the State filed a petition seeking to have him civilly committed pursuant to the SVPA. Although he had undergone a number of psychological evaluations during his time in prison, he refused to be interviewed by the mental health professionals who would eventually testify at the SVPA commitment proceedings. Instead, defendant immediately challenged the State's petition, arguing that because he had not been provided with sex offender treatment while he was incarcerated, civil commitment would violate the ex post facto clauses of the federal and state constitutions.

The civil commitment court rejected defendant's challenge, concluding that the SVPA is not unconstitutional on its face or as applied to someone, like defendant, who did not receive treatment while incarcerated. Based on extensive expert testimony considered during a two-day long commitment hearing, the court concluded that defendant met the statutory test for SVPA commitment. In particular, the court found, by clear and convincing evidence, that defendant is a sexually violent predator who is highly likely to reoffend if not committed to the Special Treatment Unit (STU) and treated. See In re W.Z., supra, 173 N.J. at 129-31 (analyzing statutory requirement that sex offender be "likely to engage in acts of sexual violence if not confined"). The court therefore declared defendant to be a sexually violent predator and committed him to the STU for treatment.

On appeal, defendant argued, among other things, that the SVPA is unconstitutional either on its face or as applied to individuals who have not been offered treatment during their incarceration. He did not contend that the SVPA is generally punitive, but attacked it as unconstitutional because, in his view, the statute uses civil commitment as a vehicle for further punishment. In a published opinion, the Appellate Division rejected all of defendant's arguments, concluding in relevant part that the SVPA is not unconstitutional on its face or as applied to an individual, like defendant, who was not provided with sex offender treatment at the ADTC during his incarceration. In re W.X.C., supra, 407 N.J. Super. at 632-39.

We granted defendant's petition for certification, in which he sought our review only of his constitutional attack on the SVPA. 200 N.J. 475 (2009).

II.

Defendant's constitutional challenge to the use of the SVPA to commit an individual who has not been afforded sex offender treatment while incarcerated has two parts. His first argument is that, as applied, the SVPA violates the ex post facto clauses of the federal and state constitutions because it is punitive in the sense that it increases punishment for a crime. In particular, defendant argues that imposing a period of civil commitment on one who has completed a prison term during which no sex offender treatment was provided constitutes additional punishment. Defendant's second argument is that, as applied, the statutes that govern sex offenders are fundamentally unfair because they treat similar sex offenders differently. That is, some offenders are immediately provided with treatment through sentencing to the ADTC under the Sex Offender Act while others, like defendant, are given no treatment even though they may eventually qualify for SVPA commitment, thus violating principles of fundamental fairness. Although to some extent these two arguments overlap, we consider them separately.

A.

This Court has thoroughly analyzed the history and meaning of the ex post facto clauses of the federal and state constitutions in addressing an attack on the registration and notification provisions of Megan's Law, see Doe v. Poritz, 142 N.J. 1, 40-73 (1995). In that context, we concluded that the ex post facto protection found in our constitution is not broader than its federal counterpart. See id. at 42 n.10 (concluding that our interpretation of our constitution's ex post facto clause should be consistent with United States Supreme Court's interpretation of federal clause).

To summarize the analytical framework briefly, we have noted that a statute violates the ex post facto clause if it operates so as to: "(1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216, 217 (1925)).

In the broadest sense, defendant's constitutional argument is not a new one, for we have previously rejected both an ex post facto challenge to the SVPA and a similar attack based on the argument that the statute unconstitutionally imposed additional punishment upon sex offenders. See In re Civil Commitment of J.M.B., 197 N.J. 563, 600-01 (rejecting ex post facto challenge to SVPA), cert. denied, ___ U.S. ___, 130 S.Ct. 509, 175 L.Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003) (rejecting argument that civil commitment under SVPA is "direct and penal" consequence of guilty plea; holding that commitment is only "collateral" consequence). As part of our review of the SVPA in each instance, we have specifically emphasized that our Legislature intended to create a civil, rather than a penal, statute. See, e.g., In re J.M.B., supra, 197 N.J. at 599 ("The SVPA . . . is not a penal statute."); Bellamy, supra, 178 N.J. at 138 ("Legislative intent [in enacting SVPA] is regulatory.").

In addressing challenges to the SVPA, and in particular in rejecting ex post facto attacks on the statute, courts have been guided by the statute's two fundamental purposes. Those purposes are regulatory ones, because the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality. See In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 97 (App. Div. 2007), aff'd, 197 N.J. 563 (2009). Those are both permissible legislative goals that protect the community at large and that also provide care for citizens who are in need of treatment and who are unable to obtain it by themselves. See In re W.Z., supra, 173 N.J. at 125. When the Legislature enacted the SVPA, it chose to serve those purposes, relying on its police powers and its parens patriae authority and acting well within the scope of its powers. Ibid. (citing Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed. 2d 323, 331 (1979)).

As this Court has held, "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." Doe, supra, 142 N.J. at 12. In light of these well-reasoned precedents, our consideration of defendant's challenge only requires us to address his particular argument that the SVPA is punitive as applied to sex offenders like himself and, therefore, unconstitutional.

We have recognized that by utilizing confinement as part of treatment, the SVPA has some punitive impact, and we have commented that this aspect of the statute is "onerous."

Bellamy, supra, 178 N.J. at 138. But we have concluded that this does not violate the ex post facto clause because it is simply an "inevitable consequence of the regulatory provisions." Ibid. (quoting Doe, supra, 142 N.J. at 46). Instead, as our Appellate Division has noted, the SVPA reflects "a reasoned balance between the liberty interest of a committee in need of treatment for emotional disorders and protection of the citizenry." In re J.M.B., supra, 395 N.J. Super. at 97. In light of the clear regulatory goals that our Legislature sought to achieve through the SVPA, the choice to ...


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