IN RE THE CIVIL COMMITMENT OF R.J.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5694-04T25694-04T2

IN RE THE CIVIL COMMITMENT

OF R.J.M., SVP 95-00.

________________________________________________________

 

Argued June 5, 2007 - Decided July 12, 2007-

Before Judges Weissbard and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

SVP-95-00.

Brian Patrick Hughes, Assistant Deputy Public Advocate, argued the cause for appellant (Ronald K. Chen, Public Advocate, attorney; Mr. Hughes, of counsel and on the brief).

David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

R.J.M. appeals from an order of June 22, 2005, continuing his commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

R.J.M. was initially committed to the STU on July 25, 2000, after serving ten years of a sixteen-year sentence at the Adult Diagnostic and Treatment Center (ADTC), imposed on his conviction for aggravated sexual assault on a three-year-old child. His commitment was continued as a result of consent agreements on July 26, 2001, and January 29, 2002, and after a review hearing on July 30, 2002. Because of the pendency of R.J.M.'s appeal of the July 30, 2002 order, which we affirmed on July 26, 2004, In re Civil Commitment of R.J.M., Docket No.

A-0343-02T2, (App. Div.) (slip op.), no hearings took place until June 20, 2005, the matter under review.

On appeal, R.J.M. presents a single argument for our consideration:

POINT I

RETROACTIVE APPLICATION OF THE SEXUALLY VIOLENT PREDATOR ACT TO R.J.M. VIOLATED FUNDAMENTAL FAIRNESS AND THE PROSCRIPTION AGAINST EX POST FACTO LAWS IN THE NEW JERSEY CONSTITUTION.

Perhaps because the evidence is so overwhelming, R.J.M. does not dispute the conclusion that he qualifies for commitment under the SVPA. In addition to his 1989 conviction, R.J.M. committed sexual offenses against young children in 1981, when he was only twelve-years-old, and in 1984, when he was fifteen. For the later offense, in North Carolina, he was sentenced to three years incarceration. In addition, R.J.M. has admitted to at least sixty victims, ranging in age from one to fifteen-years-old. Indeed, R.J.M. does not contest his eligibility for commitment, or the judge's June 22, 2005 findings in this regard. Nevertheless, the State has spent virtually its entire thirty-nine page brief arguing in support of those findings. With respect to the only argument actually presented in this appeal, concerning the ex post facto prohibition, the State has deigned to provide about one page of argument. While the State prevails on this appeal, it does so despite its presentation.

This is not the first time that R.J.M. has raised an ex post facto argument. In our unpublished decision affirming his July 30, 2002 commitment, we responded to his argument at length, stating:

Appellant contends that his confinement under the Act violates the Ex Post Facto Clause of the New Jersey Constitution. This argument was also rejected in [In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (2003), certif. denied, 179 N.J. 312 (2004)].

The New Jersey Constitution prohibits passage by the Legislature of "ex post facto" laws. N.J. Const. art. 4, 7, 3. The prohibition applies to laws that "change[] the punishment, and inflict[] a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. 386, 390, 1 L. Ed. 648, 650 (1798) (quoted in Doe v. Poritz, 142 N.J. 1, 47 (1995)). The determination of whether a law violates the ex post facto provision is dependent on whether it inflicts "punishment." Doe, supra, 142 N.J. at 46.

In Doe, the Court considered the constitutionality of the sexual offender registration and community notifications laws known as "Megan's Law." Id. at 12. The plaintiff contended the laws were unconstitutional in part because they amounted to additional "punishment." Id. at 40-77. The Court set forth what it deemed to be the proper analysis for determining whether a law inflicts "punishment":

The determination of punishment has ordinarily consisted of several components. An initial inquiry is whether the legislative intent was regulatory or punitive: if the latter, that generally is the end of the inquiry, for punishment results; if the former, the inquiry changes to whether the impact, despite the legislative intent to regulate, is in fact punitive, usually analyzed in terms of the accepted goals of punishment, retribution and deterrence. Despite some ambivalent language, a punitive impact -- one that effects retribution or accomplishes deterrence -- renders the law or the specific provision of the law that is attacked, punishment, but only if the sole explanation for that impact is a punitive intent. In other words, the law is characterized as regulatory in accordance with the legislative intent even if there is some punitive impact, if that impact is simply an inevitable consequence of the regulatory provisions themselves. The law is characterized as punitive only if the punitive impact comes from aspects of the law unnecessary to accomplish its regulatory purposes -- that is, if the law is "excessive," the excess consisting of provisions that cannot be justified as regulatory, that result in a punitive impact, and that, therefore, can only be explained as evidencing a punitive intent.

[Id. at 46.]

In State v. Bellamy, 178 N.J. 127, 131, 137-38 (2003), the Court applied the analysis from Doe to the defendant's contention that civil commitment under the SVPA was a "penal" consequence of his guilty plea to fourth degree criminal sexual contact of which he had to be advised prior to plea. Although the Court concluded that the fundamental fairness compelled such advice, the Court determined that the Legislative intent behind the Act was regulatory, rather than punitive, because "[t]he Act focuse[d] on a sex offender's mental condition and the dangers [he] posed to the public." Id. at 138. Furthermore, while the confinement was "onerous" and had "some punitive impact," the impact was "the 'inevitable consequence of the regulatory provisions.'" Ibid (quoting Doe, supra, 142 N.J. at 46)). Accord, State v. Mumin, 361 N.J. Super. 370, 381-86 (App. Div. 2003).

Moreover, in [Kansas v. Hendricks, 521 U.S. 346, 360-69, 117 S. Ct. 2072, 2081-82, 138 L. Ed. 2d 501, 514-19 (1997)], the Supreme Court held that commitment under the Kansas SVPA did not violate the prohibition on ex post facto lawmaking. Such confinement implicated neither retribution nor deterrence, which are the "two primary objectives of criminal punishment." Id. at 361-62, 117 S. Ct. at 2081-82, 138 L. Ed. 2d at 515.

"The Act's purpose is not retributive because it does not affix culpability for prior criminal conduct. Instead, such conduct is used solely for evidentiary purposes, either to demonstrate that a 'mental abnormality' exists or to support a finding of future dangerousness." Id. at 362, 117 S. Ct. at 2081, 138 L. Ed. 2d at 515. Nor was the Act:

intended . . . to function as a deterrent. Those persons committed under the Act are, by definition, suffering from a "mental abnormality" or a "personality disorder" that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement.

[Id. at 362-63, 117 S. Ct. at 2082, 138 L. Ed. 2d at 515.]

More importantly, the Court rejected Hendricks' argument that the Act "is necessarily punitive because it fails to offer any legitimate 'treatment'. Without such treatment, Hendricks asserts, confinement under the Act amounts to little more than disguised punishment." Id. at 365, 117 S. Ct. at 2083, 138 L. Ed. 2d at 517. Even assuming that Hendricks' condition was untreatable under the Kansas Act and that the sole purpose of his confinement was therefore incapacitation, the Supreme Court nevertheless rejected the view of the Kansas Supreme Court that "[a]bsent a treatable mental illness . . . Hendricks could not be detained against his will." Ibid. In reaching that conclusion, the Supreme Court noted that it had "never held that the Constitution prevents a state from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others." Ibid. Analogizing to the involuntary confinement of the "dangerously insane," the Supreme Court saw "little value to require treatment as a precondition for civil confinement" of such individuals. Ibid. "To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions." Id. at 366, 117 S. Ct. at 2084, 138 L. Ed. 2d at 518. Indeed, the Supreme Court continued, even if the provision of treatment was not the "primary" or "overriding" purpose of the Kansas Act, the Act was not necessarily punitive as long as treatment was "an ancillary purpose of the Act." Id. at 366, 117 S. Ct. at 2084, 138 L. Ed. 2d 518. The Supreme Court summed up its holding as follows:

Where the State has "disavowed any punitive intent"; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent.

[Id. at 368-69, 117 S. Ct. at 2085, 138 L. Ed. 2d at 519.]

In his critical concurring opinion, Justice Kennedy observed that "[i]f the object or purpose of the Kansas law had been to provide treatment but the treatment provisions were adopted as a sham or mere pretext, there would have been an indication of the forbidden purpose to punish," the hallmark of an ex post facto law. Id. at 371, 117 S. Ct. at 2087, 138 L. Ed. 2d at 521. However, Justice Kennedy found that the Kansas law, with its various protections, including yearly review, fell within the tradition of permitting confinement of persons who "by reason of a mental disease or mental abnormality, constitute a real, continuing, and serious danger to society." Id. at 372, 117 S. Ct. at 2087, 138 L. Ed. 2d at 521. In that regard, he noted that the mental abnormality that led to Hendricks' confinement pedophilia - "is at least described in the DSM-IV. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 524-525, 527-528 (4th ed. 1994)." Ibid. He continued:

Notwithstanding its civil attributes, the practical effect of the Kansas law may be to impose confinement for life. At this stage of medical knowledge, although future treatments cannot be predicted, psychiatrists or other professionals engaged in treating pedophilia may be reluctant to find measurable success in treatment even after a long period and may be unable to predict that no serious danger will come from release of the detainee.

. . . .

 
The point, however, is not how long Hendricks and others like him should serve a criminal sentence. With his criminal record, after all, a life term may well have been the only sentence appropriate to protect society and vindicate the wrong. The concern instead is whether it is the criminal system or the civil system which should make the decision in the first place. If the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function. These concerns persist whether the civil confinement statute is put on the books before or after the offense. We should bear in mind that while incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone.

 
On the record before us, the Kansas civil statute conforms to our precedents. If, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.

[Id. at 372-73, 117 S. Ct. at 2087, 138 L. Ed. 2d at 521-22.]

Four dissenting Justices agreed with the Kansas Supreme Court that Hendricks' confinement was not justified, finding inadequate evidence that Kansas intended the committees to receive treatment. Among the reasons supporting such a view was that the Kansas Act, like ours, only seeks civil confinement after the offender has served his or her criminal sentence, leading Justice Breyer to pose the rhetorical question, "But why, one might ask, does the Act not commit and require treatment of sex offenders sooner, say soon after they begin to serve their sentences?" Id. at 385, 117 S. Ct. at 2093, 138 L. Ed. 2d at 530. (Breyer, J., dissenting). It is, he went on, "difficult to see why rational legislators . . . would write the Act in this way - providing treatment years after the criminal act that indicated its necessity." Id. at 386, 117 S. Ct. at 2094, 138 L. Ed. 2d at 530. Based primarily upon a conclusion that Kansas had not provided for treatment of persons committed under its Act, like Hendricks, the dissenters concluded that the Act imposed punishment and therefore violated the ex post facto clause of the Constitution. Id. at 382-96, 117 S. Ct. at 2092-98, 138 L. Ed. 2d at 528-36.

Here, R.J.M. stresses that "[a]lthough civilly committed, [he] is punished every day," citing the fact that the STU "operates as a prison" under the auspices of the Department of Corrections. As part of his argument, he states the following: "At the STU, inmates generally receive one to three hours of treatment per week. At best, they may receive eight hours of treatment. The rest of their time they spend directly under the surveillance of Department of Corrections officers. Typically R.J.M. is in treatment only twice a week."

If, in fact R.J.M., and others similarly situated, are not receiving adequate treatment for their disorders, they may have a basis for an ex post facto argument, notwithstanding Bellamy and J.H.M., neither of which addressed the issue from that perspective. The problem is that the record in this case is woefully inadequate with respect to the amount and nature of the treatment actually being afforded to SVPA committees. Assertions made in the briefs and at oral argument cannot take the place of a complete evidentiary record with respect to these treatment issues. Concerning someone like R.J.M., who spent nearly eleven years in Avenel, presumably receiving treatment, one may wonder about the likelihood of his ever being "cured" sufficiently to be released from the STU after a decade of no success at Avenel. In any event, since R.J.M. has the right to yearly reviews, he will have the opportunity, if he wishes, to make a complete record as a basis for a future appeal.

[In re Civil Commitment of R.J.M., supra, (slip op. at 17-19).]

R.J.M. asserts on this appeal that the record is now sufficient to support his ex post facto argument. We disagree.

R.J.M.'s contention that the lack of appropriate treatment in his case renders his confinement punitive fails for two primary reasons. First, the record supports Judge Perretti's finding, based on the testimony of Dr. Mann, the Director of Psychology at the STU, that the treatment being offered to committees at the STU "complies with the requirements that [R.J.M.] be provided with treatment directed toward the problem that has been diagnosed." More importantly, the judge found "no indication of any deviation from the standard treatment, nor any testimony as to a requirement for any difference in kind or quality of treatment afforded to [R.J.M.]." The judge accepted Dr. Mann's testimony to the effect that the treatment offered was "standard in the area of sex offender treatment," and "state of the art." As the judge noted, "[t]here was no contradiction to this testimony." We fail to see how R.J.M.'s contention of inadequate treatment, to a degree that would render his confinement punitive, can be supported without expert testimony to that effect, unless concessions are wrung from the State's experts, which was not the case here. We do not consider Dr. Iser's testimony on cross-examination that, at the current rate of available group discussion time, it would take R.J.M. about ten years to discuss all of his victims, to constitute a sufficient basis for a conclusion that R.J.M.'s confinement has become punitive. If the treatment is available and necessary to the end of "curing" the committee, the length of time to a successful conclusion is not dispositive. It may well be, as the State's expert opines, that R.J.M. could not effectively handle the amount of group therapy time he proposes. Again, it would take expert testimony to substantiate such a claim, and none was presented here.

Second, the record supports Judge Perretti's finding that R.J.M. does not yet participate fully in the available treatment. Indeed, in his interview with Dr. Kern, conducted in anticipation of the present hearing, R.J.M. admitted that he needed to improve his attendance and participation and that his "motivation is poor." While there has been improvement in R.J.M.'s participation over the past few years, according to Dr. Kern's testimony accepted by Judge Perretti, he still "does not participate in the treatment that he has." As Dr. Kern opined, R.J.M.'s lack of progress is not due to lack of opportunity but lack of participation. It was "the opinion of Dr. Kern that the amount of treatment provided is adequate." Until R.J.M. fully and without reservation takes advantage of available treatment, he is a poor candidate to advance the ex post facto argument.

That said, we continue to emphasize the seriousness of the ex post facto claim in the STU context, see In re Commitment of E.S.T., 371 N.J. Super. 562, 578-80 (App. Div. 2004), and we reject the State's argument that an individual committee cannot raise an ex post facto claim concerning his own situation, as opposed to such a claim being relegated to a class action type proceeding. We read In re Commitment of K.D., 357 N.J. Super. 94, 98-99 (App. Div. 2003), as supporting this conclusion, not rejecting it, as the State suggests. The fact that such a class action is pending in a federal court, id. at 99, is no barrier to an individual presenting a similar argument. We note that unlike the committee in E.S.T., supra, who spent nearly twenty years in state prison without sex offender treatment, 371 N.J. Super. at 578, R.J.M. spent eleven years at the ADTC where treatment was available but he did not take advantage of it.

Confinement at the STU presents potential ex post facto problems, but that potential has not been realized based on the present record.

 
Affirmed.

(continued)

(continued)

14

A-5694-04T2

RECORD IMPOUNDED

July 12, 2007