IMO the Civil Commitment of W.X.C. (A-33-09)
Argued April 26, 2010 -- Decided November 9, 2010
HOENS, J., writing for a majority of the Court.
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.
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.
2 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.
