New Jersey in the Interest of C.K.
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In New Jersey, juveniles adjudicated delinquent of certain sex offenses were barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society. Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and challenged the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles. After review of the specific facts of this case, the New Jersey Supreme Court concluded subsection (g)’s lifetime registration and notification requirements as applied to juveniles violated the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. “Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.” The Court determined that in the absence of subsection (g), N.J.S.A. 2C:7-2(f) provided the original safeguard incorporated into Megan’s Law, and a criminal defendant may petition to be released from registration and notification requirements when a superior court judge is persuaded the defendant has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period. Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).
SYLLABUS
(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
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey in the Interest of C.K. (A-15-16) (077672)
Argued September 25, 2017 -- Decided April 24, 2018
ALBIN, J., writing for the Court.
Subsection (f) of
N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime
registration and notification requirements but allows a registrant to seek relief from those requirements fifteen years
after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of
others.” Subsection (g) imposes an irrebuttable presumption that juveniles adjudicated delinquent of certain sex
offenses, such as defendant C.K., are irredeemable, even when they no longer pose a public safety risk and are fully
rehabilitated. In this case, the Court addresses the constitutionality of
N.J.S.A. 2C:7-2(g) as applied to juveniles.
When C.K. was approximately fifteen years old, he began sexually assaulting his younger adopted brother,
A.K., who was then seven years old. After A.K. turned sixteen, he disclosed his older brother’s abuse. The State
charged C.K. with aggravated sexual assault. At the time of the charge, C.K. was twenty-three years old.
In his plea colloquy, C.K. admitted that when he was between the ages of fifteen and seventeen, he
performed oral sex on his younger brother. In 2003, C.K. was sentenced to a three-year probationary term,
conditioned on his attending sex-offender treatment and having no contact with his brother unless recommended by
a therapist. The court also ordered C.K. to comply with the Megan’s Law requirements,
N.J.S.A. 2C:7-1 to -11, -19,
and barred him from working with children without the court’s permission. The State classified C.K. as a Tier One
offender—the lowest risk category for re-offense.
C.K. received an undergraduate degree in psychology and a master’s degree in counseling. At the time of
his arrest, C.K. was a teacher’s assistant for children with autism. After his juvenile adjudication, C.K. stopped
working with children. By age thirty-three, C.K. had worked for many years at a nonprofit agency that provides
adults suffering from mental illness a range of services. C.K. has turned down opportunities for advancement from
fear that a background check might “out” his status as a Megan’s Law registrant. It has now been more than twenty
years since C.K. engaged in any unlawful conduct and more than fourteen years since his juvenile adjudication.
C.K. filed a post-conviction relief (PCR) petition challenging the constitutionality of his Megan’s Law
requirements. A second PCR court held an evidentiary hearing. C.K. presented five expert witnesses who testified
about the current body of research on juvenile sex offender recidivism. The evidentiary hearing also focused on the
experts’ individualized risk assessments of C.K., now thirty-eight years old, and on the negative impact the
registration requirements continue to have on his ability to lead a normal life.
The PCR court found the “evidence presented by [C.K.’s] psychologists [to be] credible and persuasive”
and noted that “[t]he State did not present any evidence to the contrary.” The PCR court concluded, however, that
any loosening of the strictures of Megan’s Law must come from the Supreme Court of New Jersey in assessing the
constitutionality of the registration scheme as applied to juveniles or from the Legislature, which has the paramount
role in forging public policy. A panel of the Appellate Division affirmed the denial of C.K.’s second PCR petition.
The Court granted C.K.’s petition for certification “limited to the issue of the constitutionality of imposing the
lifetime registration requirements of Megan’s Law on juvenile offenders.”
228 N.J. 238 (2016).
HELD:
N.J.S.A. 2C:7-2(g) is unconstitutional as applied to juveniles adjudicated delinquent as sex offenders. In the
absence of subsection (g),
N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no
juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior
Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-
back period.
1
1.
N.J.S.A. 2C:7-2(g) is part of the registration and community notification provisions of Megan’s Law. The
requirements imposed by
N.J.S.A. 2C:7-2(g) are categorical. A juvenile, fourteen years or older, who has
committed an enumerated sex offense, or multiple sex offenses, under subsection (g) cannot seek relief ever from
those requirements. Subsection (g) was not part of the original legislative scheme that became Megan’s Law in
1994. The Legislature enacted subsection (g) in 2002 with the intended purpose of conforming our State registration
and notification scheme to federal law. In 2006, Congress passed a new law, under which C.K. would be classified
as a Tier III offender. Unlike
N.J.S.A. 2C:7-2(g), that law has no permanent lifetime registration provision for
juveniles. 34 U.S.C. § 20915(a)(3) to (b). (pp. 18-25)
2. Before the passage of subsection (g) of
N.J.S.A. 2C:7-2 in 2002, subsection (f) governed the termination of
registration requirements for all adult and juvenile sex offenders. Subsection (f) was part of the original Megan’s
Law registration and notification requirements, which the Court declared constitutional in Doe v. Poritz,
142 N.J. 1,
12 (1995). In In re Registrant J.G.,
169 N.J. 304 (2001), the Court held that for juveniles under the age of fourteen
the “registration and community notification orders shall terminate at age eighteen,” provided the juvenile can
establish in the Law Division by “clear and convincing evidence that [he] is not likely to pose a threat to the safety
of others.” Id. at 337. Neither Doe nor J.G. addressed whether permanent lifetime registration and notification
requirements imposed on a juvenile would violate our State Constitution. (pp. 25-30)
3. Laws and jurisprudence recognize that juveniles are different from adults. The United States Supreme Court
declared unconstitutional legal regimes that imposed capital punishment on juvenile offenders, Roper v. Simmons,
543 U.S. 551, 568-70 (2005); life without parole on juveniles convicted of non-homicide offenses, Graham v.
Florida,
560 U.S. 48, 82 (2010); and mandatory life without parole on juveniles convicted of homicide offenses,
Miller v. Alabama,
567 U.S. 460, 489 (2012). The Court grounded its decisions on scientific and sociological
notions. In the wake of Roper, Graham, and Miller, this Court held in State v. Zuber that sentencing judges must
consider “the mitigating qualities of youth” and “exercise a heightened level of care before they impose multiple
consecutive sentences on juveniles which would result in lengthy jail terms.”
227 N.J. 422, 429-30 (2017). In In re
C.P., the Ohio Supreme Court declared an Ohio statute that subjected certain juvenile offenders to automatic and
mandatory lifetime sex-offender registration requirements—with the potential for reclassification after twenty-five
years—violative of the Federal and Ohio Constitutions.
967 N.E.2d 729, 732, 737 (Ohio 2012). Similarly, the
Pennsylvania Supreme Court declared that a statute imposing lifetime registration requirements on sexually violent
juvenile offenders violated its state constitution. In re J.B.,
107 A.3d 1, 2, 10, 14-16 (Pa. 2014). (pp. 31-39)
4. Since the passage of
N.J.S.A. 2C:7-2(g) in 2002, scientific and sociological studies have shined new light on
adolescent brain development and on the recidivism rates of juvenile sex offenders compared to adult offenders.
Our commonsense and historical understanding that children are different from adults is enshrined in our juvenile
justice system and fortified by recent United States Supreme Court decisions and Zuber, which embraced those
studies that found that juveniles do not possess immutable psychological or behavioral characteristics. That body of
jurisprudence and the evidentiary record in this case tell us that adolescents are works in progress and that age
tempers the impetuosity, immaturity, and shortsightedness of youth. They tell us that, generally, juvenile sex
offenders are less likely to reoffend than adult sex offenders and that the likelihood of recidivism is particularly low
for those who have not reoffended for a long period of time. Subsection (g), as applied to juveniles, no longer bears
a rational relationship to a legitimate state purpose and arbitrarily denies those individuals their right to liberty and
enjoyment of happiness guaranteed by Article I, Paragraph 1 of the New Jersey Constitution. C.K.’s case in many
ways exemplifies why. Solely because of the nature of the offense he committed as a juvenile, C.K. is presumed
under subsection (g) to be a permanent, lifetime risk to the safety of the public. That irrebuttable presumption is not
supported by scientific or sociological studies, our jurisprudence, or the record in this case. (pp. 39-46)
5. Under subsection (f) of
N.J.S.A. 2C:7-2, fifteen years from the date of his juvenile adjudication, C.K. will be
eligible to seek the lifting of his registration requirements. At that time, he must be given the opportunity to
demonstrate by clear and convincing evidence that he has not reoffended and no longer poses a threat to others and
therefore has a right to be relieved of his Megan’s Law obligations and his status as a registrant. (pp. 46-47)
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-
15 September Term 2016
077672
STATE OF NEW JERSEY IN THE
INTEREST OF C.K.
Argued September 25, 2017 – Decided April 24, 2018
On certification to the Superior Court,
Appellate Division.
James H. Maynard argued the cause for
appellant C.K. (Maynard & Sumner, attorneys;
James H. Maynard, on the briefs).
Elizabeth R. Rebein, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent State of New Jersey
(Gurbir S. Grewal, Bergen County Prosecutor,
attorney; Elizabeth R. Rebein, of counsel
and on the briefs).
Fletcher C. Duddy, Deputy Public Defender,
argued the cause for amicus curiae New
Jersey Office of the Public Defender (Joseph
E. Krakora, Public Defender, attorney;
Fletcher C. Duddy, on the letter brief).
Laura A. Cohen argued the cause for amici
curiae American Civil Liberties Union of New
Jersey, the Advocates for Children of New
Jersey, and the Northeast Juvenile Defender
Center (Rutgers University School of Law –
Newark Criminal and Youth Justice Clinic and
Constitutional Litigation Clinic, attorneys;
Rebecca J. Livengood, on the brief).
Louise T. Lester, Assistant Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Christopher
S. Porrino, Attorney General, attorney;
1
Louise T. Lester, of counsel and on the
brief).
Karen U. Lindell submitted a brief on behalf
of amicus curiae Juvenile Law Center
(Juvenile Law Center, attorneys; Karen U.
Lindell, and Marsha L. Levick, of the
Pennsylvania bar, admitted pro hac vice, on
the brief).
JUSTICE ALBIN delivered the opinion of the Court.
Juveniles adjudicated delinquent of certain sex offenses
are barred for life from seeking relief from the registration
and community notification provisions of Megan’s Law.
N.J.S.A.
2C:7-1 to -11, -19;
N.J.S.A. 2C:7-2(g). That categorical
lifetime bar cannot be lifted, even when the juvenile becomes an
adult and poses no public safety risk, is fully rehabilitated,
and is a fully productive member of society. Defendant C.K. was
adjudicated delinquent for sex offenses committed more than two
decades ago and now challenges the constitutionality of N.J.S.A.
2C:7-2(g)’s permanent lifetime registration and notification
requirements as applied to juveniles.
Subsection (f) of
N.J.S.A. 2C:7-2 subjects all sex
offenders, including juveniles, to presumptive lifetime
registration and notification requirements. Unlike subsection
(g), however, subsection (f) allows a registrant to seek relief
from those requirements fifteen years after his juvenile
adjudication, provided he has been offense-free and is “not
likely to pose a threat to the safety of others.” Subsection
2
(g) imposes an irrebuttable presumption that juveniles, such as
defendant, are irredeemable, even when they no longer pose a
public safety risk and are fully rehabilitated.
The record in this case reveals what is commonly known
about juveniles -- that their emotional, mental, and judgmental
capacities are still developing and that their immaturity makes
them more susceptible to act impulsively and rashly without
consideration of the long-term consequences of their conduct.
See State v. Zuber,
227 N.J. 422 (2017). The record also
supports the conclusion that juveniles adjudicated delinquent of
committing sex offenses, such as C.K., who have been offense-
free for many years and assessed not likely to reoffend, pose
little risk to the public. Indeed, categorical lifetime
notification and registration requirements may impede a
juvenile’s rehabilitative efforts and stunt his ability to
become a healthy and integrated adult member of society.
We conclude that subsection (g)’s lifetime registration and
notification requirements as applied to juveniles violate the
substantive due process guarantee of Article I, Paragraph 1 of
the New Jersey Constitution. Permanently barring juveniles who
have committed certain sex offenses from petitioning for relief
from the Megan’s Law requirements bears no rational relationship
to a legitimate governmental objective. In the absence of
subsection (g),
N.J.S.A. 2C:7-2(f) provides the original
3
safeguard incorporated into Megan’s Law: no juvenile
adjudicated delinquent will be released from his registration
and notification requirements unless a Superior Court judge is
persuaded that he has been offense-free and does not likely pose
a societal risk after a fifteen-year look-back period.
Defendant may apply for termination from the Megan’s Law
requirements fifteen years from the date of his juvenile
adjudication, and be relieved of those requirements provided he
meets the standards set forth in
N.J.S.A. 2C:7-2(f).
I.
A.
We begin with the juvenile offenses that triggered the
registration and notification requirements in this case. When
C.K. was approximately fifteen years old, he began sexually
assaulting his younger adopted brother, A.K., who was then seven
years old. After A.K. turned sixteen, he disclosed his older
brother’s abuse to his priest and then to the police.
The State charged C.K. with committing, while he was a
juvenile, the offense of aggravated sexual assault against his
adopted brother. At the time of the charge, C.K. was twenty-
three years old.
The State moved to waive C.K. to the Criminal Part, Law
Division, for trial as an adult. The State withdrew its waiver
motion after C.K. agreed to plead guilty to the aggravated
4
sexual assault charge in juvenile court. In his plea colloquy,
C.K. admitted that when he was between the ages of fifteen and
seventeen, he performed oral sex on his younger brother. In
2003, C.K. was sentenced to a three-year probationary term,
conditioned on his attending sex-offender treatment and having
no contact with his brother unless recommended by a therapist.
The court also ordered C.K. to comply with the Megan’s Law
requirements and barred him from working with children without
the court’s permission.
The State classified C.K. as a Tier One offender -- the
lowest risk category for re-offense. See
N.J.S.A. 2C:7-8(c)(1).
As a Tier One offender, C.K. is required to register annually
with the law enforcement agency in the municipality where he
resides. See
N.J.S.A. 2C:7-2; Attorney General Guidelines for
Law Enforcement for the Implementation of Sex Offender
Registration and Community Notification Laws 9 (rev’d Feb. 2007)
[hereinafter Attorney General Guidelines].
In the years after turning eighteen, C.K. received an
undergraduate degree in psychology from Catholic University and
a master’s degree in counseling from Montclair State University.
At the time of his arrest, C.K. was a teacher’s assistant for
children with autism. After his juvenile adjudication, C.K.
stopped working with children. By age thirty-three, C.K. had
worked for many years at a nonprofit agency that provides adults
5
suffering from mental illness a range of services, such as
securing psychiatric treatment and affordable housing. C.K. has
turned down opportunities for professional advancement from fear
that a background check might “out” his status as a Megan’s Law
registrant. It has now been more than twenty years since C.K.
engaged in any unlawful conduct and more than fourteen years
since his juvenile adjudication.
B.
In 2008, five years after his juvenile adjudication, C.K.
filed his first petition for post-conviction relief (PCR),
seeking, among other things, a judicial declaration that the
Megan’s Law lifetime registration and notification requirements
violated his constitutional rights. The PCR court denied the
petition in its entirety. The Appellate Division affirmed the
denial of C.K.’s petition, suggesting that an evidentiary record
would be necessary to support his constitutional arguments.
In November 2012, C.K. filed his second PCR petition,
alleging that his earlier PCR counsel provided ineffective
assistance by failing to properly challenge the
constitutionality of his Megan’s Law requirements. The second
PCR court held an evidentiary hearing. C.K. presented five
expert witnesses who testified about the current body of
research on juvenile sex offender recidivism. C.K. also offered
psychological assessments about his mental, emotional, and
6
career development during his adult life. The State cross-
examined C.K.’s witnesses but offered no rebuttal testimony or
expert reports. The following summarizes the record before us. 1
At the evidentiary hearing, C.K. called Dr. Jackson Tay
Bosley, Dr. Sean Hiscox, Dr. Robert Prentky, and Dr. James
Reynolds, clinical psychologists with expertise in the treatment
and rehabilitation of both juvenile and adult sex offenders.
Dr. Hiscox was additionally qualified as an expert in the risk
assessment of adult and juvenile offenders. Nicole Pittman,
Esq., testified about the effects of placing juvenile offenders
on registries based on her nationwide research on the subject.
All of the expert witnesses asserted that juvenile sex
offenders are more amenable to rehabilitation and less likely to
reoffend than adult sex offenders. They stressed that juvenile
offenders, because of their lack of maturity and delayed social
1 Notification of the constitutional challenge was provided to
the Attorney General’s Office, which declined to participate in
the PCR proceeding. At oral argument before this Court, neither
the Bergen County Prosecutor, appearing for the State, nor the
Attorney General, appearing as amicus curiae, identified any
additional evidence that contradicted the testimony presented at
the PCR hearing. We gave the Attorney General’s Office an
additional opportunity to “bring to the Court’s attention expert
evidence that is contrary to the expert testimony presented to
the PCR court with respect to the application of
N.J.S.A. 2C:7-
2(g) with respect to juveniles.” The Attorney General’s Office
responded with a proffer of the expert testimony it would
“potentially” offer. The information was too speculative and
therefore not helpful to the Court.
7
and emotional development, are fundamentally different from
adult offenders.
The experts pointed to multiple studies confirming that
juveniles who commit sex offenses are more likely to act
impulsively and be motivated by sexual curiosity, in contrast to
adult sex offenders who are commonly aroused by deviant sexual
behavior or engage in predatory or psychopathic conduct. See
Elizabeth J. Letourneau & Michael H. Miner, Juvenile Sex
Offenders: A Case Against the Legal and Clinical Status Quo, 17
Sexual Abuse: J. Res. & Treatment 293, 297-99 (2005); Human
Rights Watch, Raised on the Registry: The Irreparable Harm of
Placing Children on Sex Offender Registries in the US 27-29
(2013) [hereinafter Human Rights Watch, Raised on the Registry].
Dr. Hiscox explained that “adolescent sex offense recidivism
rates are relatively low” when compared “with higher sex offense
recidivism rates of individuals who commit sex offenses as
adults.” Dr. Bosley and other experts also noted that previous
assumptions about high rates of juvenile sex offender recidivism
as adults are inaccurate.
One recent study -- cited by all five expert witnesses --
analyzed sixty-three data sets with information about more than
11,200 juvenile sex offenders. The study averaged the data
sets, some of which followed juvenile sex offenders for less
than five years and others for more than five years, and
8
concluded that the overall juvenile sex re-offense rate was
seven percent. Michael F. Caldwell, Study Characteristics and
Recidivism Base Rates in Juvenile Sex Offender Recidivism, 54
Int’l J. Offender Therapy & Comp. Criminology 197, 201-03
(2010).
According to a report of psychologist Dr. Philip Witt, the
recidivism rate for those falling into C.K.’s risk assessment
category is 1.1% over a two-year period and 2.0% over a four-
year period. In that report, he indicated that “a sibling
incest offender whose offense [was] in his early to mid-teens
has little bearing on his risk” many years later.
None of the risk assessment statistics accounted for a
juvenile sex offender who had been offense-free for a period of
fifteen or more years since his adjudication. The experts,
however, explained that juvenile sex offenders who commit
subsequent sex offenses generally do so within the first few
years following their last offense. See, e.g., James R. Worling
et al., 20-Year Prospective Follow-Up Study of Specialized
Treatment for Adolescents Who Offended Sexually,
28 Behav. Sci.
& L. 54 (2010) (“[M]ost sexual and nonsexual recidivism occurs
in the first few years after adolescents are initially
assessed.”). According to Dr. Hiscox, the longer a juvenile
turned adult remains offense-free in the community, the lower
the risk that he will re-offend.
9
The experts generally agreed that the best way to assess an
offender’s risk of recidivism is with individualized
assessments. As Dr. Prentky explained, “Risk is not fixed, and
it certainly can’t be adequately captured by one single event in
the life of . . . an adolescent who is constantly changing.”
Ms. Pittman observed that categorical lifetime registration
requirements based on an aggravated sex offense conviction
disproportionately impact juveniles. That is so because
juveniles commonly commit sex offenses against their peers or
somewhat younger children. 2 See Human Rights Watch, Raised on
the Registry at 25 (“[R]ecent laws . . . reserve the harshest
punishments for those who target children without seeming to
appreciate that child offenders, whose crimes almost always
involve other kids, are particularly likely to be subjected to
these harsher penalties.”).
Last, according to the experts, studies reveal that
registration policies do not necessarily reduce recidivism among
juvenile sex offenders. See, e.g., Elizabeth J. Letourneau et
al., The Influence of Sex Offender Registration on Juvenile
2 Under N.J.S.A. 2C:14-2(a)(1), an adult or juvenile is guilty
of aggravated sexual assault if he commits an act of sexual
penetration with a person who is less than thirteen years old.
Therefore, a thirteen-year old who sexually penetrates a person
under the age of thirteen, pursuant to that statute, is guilty
of aggravated sexual assault as a juvenile.
10
Sexual Recidivism, 20 Crim. Just. Pol’y Rev. 136, 138, 143
(2009) (finding no significant difference in recidivism rates
between registered and nonregistered juvenile male sex offenders
over a nine-year period). Correspondingly, Ms. Pittman
expressed her concern that inflexible lifetime registration
requirements imposed on juveniles impede their rehabilitation
and their quest for normal and productive lives in welcoming
communities.
C.
The evidentiary hearing also focused on the experts’
individualized risk assessments of C.K., now thirty-eight years
old, and on the negative impact the registration requirements
continue to have on his ability to lead a normal life.
C.K. participated in several psychological assessments,
including two with Dr. Witt. In his 2003 assessment, made
shortly after C.K.’s arrest, Dr. Witt did not find any
indication that “[C.K.’s] sexual behavior with his brother was
part of a broader pattern of illegal sexual behavior.” He
considered C.K. “a low risk.”
In 2009, Dr. Witt reevaluated C.K., then twenty-nine years
old, and observed that C.K. was “an adult with a productive,
appropriate lifestyle and healthy sexual adjustment” who
presented a low risk to reoffend. Dr. Witt noted that the “risk
assessment is really just a reflection of commonsense: When an
11
individual’s risk is relatively low to begin with and the
individual has had a stable, offense-free lifestyle for many
years, his current risk is minimal.”
At the evidentiary hearing, Dr. Hiscox testified that
C.K.’s 2013 psychological evaluation was “completely consistent
with Dr. Witt’s two risk assessments.” Dr. Hiscox further
observed that C.K. had “gone 16 to 20 years in the community
without a new sexual or non-sexual offense” and the research was
clear: “the longer an individual goes without committing a new
sex offense while at liberty in the community, the lower his
risk of reoffending.”
That same year, in interviews with Ms. Pittman, C.K.
expressed his feelings of isolation, anxiety, and depression
resulting from his Megan’s Law status. He also disclosed his
sense of hopelessness, and his fear that his registrant status
will interfere with his ability to one day be a normal parent
who can attend his children’s sports games and school
conferences.
II.
A.
The PCR court found the “evidence presented by [C.K.’s]
psychologists [to be] credible and persuasive” and noted that
“[t]he State did not present any evidence to the contrary.” The
PCR court summarized some of the opinions reached by C.K.’s
12
experts: (1) “[y]outh sex offenders differ from adult sex
offenders” and “are more amenable to sex offender specific
treatment”; (2) “the adolescent brain is not fully mature”; (3)
an individualized risk-based assessment of a juvenile sex
offender “adequately protects the public from recidivist sex
offenders”; (4) a categorical offense-based bar unnecessarily
precludes low-risk juvenile offenders who pose no threat to the
community from relief from the Megan’s Law registration
requirements; and (5) the offense-based bar to relief is “not
rationally related to the State’s interest to protect persons
from recidivist sex offenders.”
The PCR court concluded, however, that any loosening of the
strictures of Megan’s Law must come from this Court in assessing
the constitutionality of the registration scheme as applied to
juveniles or from the Legislature, which has the paramount role
in forging public policy. The PCR court expressed that it was
constrained by the precedents of this Court and, on that basis,
“the adverse consequences of Megan’s law registration” do not
give rise to a constitutional issue. Finally, the PCR court
held that C.K. did not satisfy the standard for proving
ineffective assistance of prior counsel, under Strickland v.
Washington,
466 U.S. 668 (1984) and State v. Fritz,
105 N.J. 42
(1987), because the failure to present earlier the testimony
13
given at the evidentiary hearing would not have achieved a
different outcome.
B.
In an unpublished opinion, a panel of the Appellate
Division affirmed the denial of C.K.’s second PCR petition. The
panel acknowledged that C.K.’s “constitutional arguments are
compelling,” but believed that this Court’s decisions in Doe v.
Poritz,
142 N.J. 1 (1995), and In re Registrant J.G.,
169 N.J.
304 (2001), foreclosed any basis for relief. The panel
indicated that “this case may present an appropriate occasion
for our Supreme Court to revisit J.G.,” but, as an intermediate
appellate court, it was bound to follow this Court’s precedents.
We granted C.K.’s petition for certification “limited to
the issue of the constitutionality of imposing the lifetime
registration requirements of Megan’s Law on juvenile offenders.”
228 N.J. 238 (2016). We also granted the motions of the
American Civil Liberties Union of New Jersey, Advocates for
Children of New Jersey, and Northeast Juvenile Defender Center
(collectively, ACLU-NJ), the Juvenile Law Center, the Office of
the Public Defender, and the Attorney General of New Jersey to
participate as amici curiae.
Our grant of certification is limited to addressing the
constitutionality of
N.J.S.A. 2C:7-2(g) as applied to juveniles,
which, unlike subsection (f), imposes categorical lifetime
14
registration requirements for certain sex offenses. We
therefore do not consider the parties’ general arguments that
all juvenile offense-based registration requirements are
constitutionally infirm because they do not assess the actual
risk posed by an individual juvenile.
III.
A.
C.K. contends that the Megan’s Law lifetime registration
requirements in
N.J.S.A. 2C:7-2(g), as applied to juveniles,
violate his federal and state constitutional rights to
substantive due process and to be free from cruel and unusual
punishment. C.K. claims that the registration scheme’s
irrebuttable presumption that juveniles who commit certain sex
offenses are dangerous and irredeemable is at odds with the
expert testimony presented at the PCR hearing, the neuroscience
about the developing juvenile brain, and his own life story. He
asserts that a lifetime registration scheme for juvenile sex
offenders that makes no allowance for a juvenile’s
rehabilitation and low risk for re-offense is penal, not
remedial, in nature and advances no legitimate governmental
objective. He describes how the registration scheme erects
barriers to a juvenile’s acceptance into society, career
advancement, and personal happiness, despite, as in his case, an
offense-free record and uniform expert testimony that he poses
15
no safety risk. According to C.K., a risk-based assessment is
sufficient to protect society’s interest in public safety.
The ACLU-NJ, the Juvenile Law Center, and the Public
Defender, as amici curiae, echo the arguments advanced by C.K.
and raise additional points, some collectively and others
individually. Amici emphasize that juvenile sex offenders are
distinguishable from their adult counterparts due to their
immaturity and lack of cognitive development, their amenability
to rehabilitation, and their lower recidivism rate.
N.J.S.A.
2C:7-2(g) imposes an undifferentiated disability on juvenile
registrants, without regard to their actual risk, and therefore
bears no relationship to a legitimate state interest. According
to amici, rehabilitated juvenile sex offenders, while on the
registry, face increased difficulties securing education,
employment, and housing and suffer a stigma that has harmful
psychological consequences.
B.
The State submits that “lifetime Megan’s Law registration
for juveniles adjudicated delinquent or convicted of certain
offenses pass[es] constitutional muster” under Doe and J.G. The
State maintains that C.K.’s concerns about imposing lifetime
registration on adolescents “are appropriately directed at the
Legislature” rather than this Court. It assails the studies
relied on by C.K.’s experts, reporting low juvenile recidivism
16
rates and high rehabilitative success, because they do not
distinguish between the general class of juvenile sex offenders
and the subclass of offenders affected by subsection (g) --
those adjudicated of committing aggravated sexual assault,
forcible sexual assault, or multiple sex offenses.
The State, moreover, claims that C.K. has presented largely
theoretical harms and unfounded fears, given his status as a
Tier One registrant not subject to the broader Megan’s Law
notification requirements, and is not a proper class
representative of all Tier registrants to challenge the
constitutionality of
N.J.S.A. 2C:7-2(g). Additionally, the
State explains that its failure to present witnesses at the PCR
hearing flowed from its belief that “the issue was settled” and
should not be read as a concession that it agreed with C.K.’s
experts.
The Attorney General, as amicus curiae, emphasizes many of
the points made by the State. The Attorney General asserts the
twofold purpose of the registration and notification scheme is
to allow law enforcement to keep track of the whereabouts of sex
offenders and to arm the public with information concerning an
offender’s identity, location, and offense. This registration
scheme, the Attorney General insists, is remedial, not punitive,
and advances the goal of public safety. Finally, the Attorney
General states that amending Megan’s Law is the province of the
17
Legislature, not this Court, and that C.K., and his amici,
should bring the developing social science evidence to the
attention of the branch of government responsible for public
policy.
IV.
A.
We granted certification to address the constitutionality
of imposing the Megan’s Law lifetime registration and
notification requirements on juveniles adjudicated of committing
certain sex offenses, despite the peculiar procedural vehicle
for doing so. Typically, we would not consider a constitutional
challenge on a second PCR. See R. 3:22-4(b). However, “when a
'constitutional problem presented is of sufficient import to
call for relaxation of the rules [related to post-conviction
relief,] . . . we may consider the question on its merits.’”
State v. Franklin,
184 N.J. 516, 528 (2005) (alterations in
original) (quoting State v. Johns,
111 N.J. Super. 574, 576
(App. Div. 1970)). We have before us a full evidentiary record
on a constitutional issue that both the trial court and
Appellate Division found compelling. We therefore will not
reject consideration of this important issue on procedural
grounds. See ibid.
We begin our analysis with the statute at issue, with our
focus on juvenile sex offenders.
18
N.J.S.A. 2C:7-2(g) provides that
[a] person required to register under this
section who has been convicted of, adjudicated
delinquent, or acquitted by reason of insanity
for more than one sex offense as defined in
subsection b. of this section or who has been
convicted of, adjudicated delinquent, or
acquitted by reason of insanity for aggravated
sexual assault pursuant to subsection a. of
[
N.J.S.A.] 2C:14-2 or sexual assault [using
physical force or coercion, without causing
severe injury] is not eligible under
subsection f. of this section to make
application to the Superior Court of this
State to terminate the registration
obligation.
[(emphases added).]
N.J.S.A. 2C:7-2(g) is part of the registration and community
notification provisions of Megan’s Law.
N.J.S.A. 2C:7-1 to -11,
-19.
The legislative rationale for the registration and
notification scheme is public safety -- to “permit law
enforcement officials to identify and alert the public” about
sex offenders who may pose a danger to children.
N.J.S.A. 2C:7-
1(a).
On adjudication of a sex offense identified in
N.J.S.A.
2C:7-2(b), a juvenile offender must register with the police
department in the municipality where he lives.
N.J.S.A. 2C:7-
2(c); New Jersey State Police, New Jersey Sex Offender Internet
Registry: Frequently Asked Questions, http://www.njsp.org/sex-
offender-registry/faqs.shtml (last visited Mar. 16, 2018).
19
Registration requires the collection of an offender’s
fingerprints and such information as his residence, school
enrollment, and employment. N.J.S.A. 2C:7-4(b)(1)-(2). The
juvenile also must advise the appropriate law enforcement agency
of whether he has access to a computer or device with internet
capability,
N.J.S.A. 2C:7-2(d)(2), and any change in residence,
employment, or other required information,
N.J.S.A. 2C:7-
2(d)(1). A juvenile offender who fails to register or inform
the appropriate law enforcement agency of a change of address or
other status is guilty of a third-degree crime.
N.J.S.A. 2C:7-
2(a)(3); 2C:7-2(d).
For the purpose of determining the scope of public
notification of a registrant’s sex-offender status, Megan’s Law
registrants are categorized into three tiers based on an
assessment of their risk of reoffending.
N.J.S.A. 2C:7-8(c).
Registrants classified as Tier One are deemed to have the lowest
risk to reoffend and those classified as Tier Three are deemed
to have the highest risk. Ibid.
For offenders in Tier One, notification is limited to “law
enforcement agencies likely to encounter the person registered.”
N.J.S.A. 2C:7-8(c)(1). For offenders in Tier Two, notification
extends to “organizations in the community including schools,
religious and youth organizations.”
N.J.S.A. 2C:7-8(c)(2). For
offenders in Tier Three, notification further extends to
20
“members of the public likely to encounter the person
registered,”
N.J.S.A. 2C:7-8(c)(3), such as those in private
residences, businesses, schools, and community organizations in
the areas where the offender lives and works. Attorney General
Guidelines 17-18, 42-45. Although Tier Three juvenile offenders
are placed on an online registry for notification purposes, Tier
Two juvenile offenders are not, unless aggravating circumstances
are present.
N.J.S.A. 2C:7-13(b) and (d); Attorney General
Guidelines 48-49. No Tier One offenders are included on the
internet registry. Attorney General Guidelines 48-49.
The lifetime registration requirements imposed by
N.J.S.A.
2C:7-2(g) are categorical. A juvenile, fourteen years or older,
who has committed an enumerated sex offense, or multiple sex
offenses, under subsection (g) cannot seek relief ever from
those requirements -- however successful his rehabilitation,
however many his achievements, and however remote the
possibility that he will reoffend.
B.
Subsection (g) of
N.J.S.A. 2C:7-2 was not part of the
original legislative scheme that became Megan’s Law in 1994.
The Legislature enacted subsection (g) in 2002 with the intended
purpose of conforming our State registration and notification
scheme to Congress’s 1996 amendments to the Jacob Wetterling
Crimes Against Children and Sexually Violent Offender
21
Registration Act of 1994 (Jacob Wetterling Act). Pub. L. No.
104-236, §§ 3-7,
110 Stat. 3096, 3097 (repealed 2006). The
amended Jacob Wetterling Act -- the federal counterpart to
Megan’s Law -- required law enforcement agencies to notify the
community when “necessary to protect the public.” 42 U.S.C.
§ 14071(e)(2) (repealed 2006). Under the Act, offenders who
committed certain enumerated sex crimes were subject to lifetime
registration requirements. 42 U.S.C. § 14071(b)(6) (repealed
2006). That provision was cited by the New Jersey Legislature
in enacting the permanent, offense-based bar contained in
N.J.S.A. 2C:7-2(g). See S. Law & Pub. Safety Comm. Statement to
S. 2714 (Nov. 29, 2001) (L. 2001, c. 392). The rationale behind
the passage of subsection (g) evidently was to comply with
federal law and ensure continued specified federal crime
funding. See ibid. (explaining that “States that do not comply
with [the Jacob Wetterling Act] will lose federal funding
beginning in the year 2002”).
The presence of subsection (g) of
N.J.S.A. 2C:7-2 in our
legislative scheme today, however, is not a precondition to the
maintenance of federal funding. In 2006, Congress repealed the
Jacob Wetterling Act and passed the Adam Walsh Child Protection
and Safety Act (Adam Walsh Act). Pub. L. No. 109-248,
120 Stat.
587 (codified at 42 U.S.C. §§ 16901-91 (repealing 42 U.S.C.
§§ 14071-73)). Title I of the Adam Walsh Act -- known as the
22
Sex Offender Registration and Notification Act (SORNA) --
establishes a national baseline for sex offender registration
and requires that states receiving federal crime funds
substantially comply with the guidelines it outlines. See 34
U.S.C. § 20927; see also 34 U.S.C. § 10151 (establishing that
non-compliant jurisdictions lose ten percent of funds from
federal Edward Byrne Memorial Justice Assistance Grant Program).
In effect, SORNA serves as model legislation that can be adopted
in part or in whole by the states. Nevertheless, most states,
including New Jersey, have not substantially implemented SORNA.
Office of Sex Offender Sentencing, Monitoring, Apprehending,
Registering, and Tracking, SORNA Implementation Status,
https://smart.gov/sorna-map.htm (last visited Mar. 16, 2018)
(listing only twenty-two states and territories as having
substantially implemented SORNA).
SORNA classifies sex offenders into three risk tiers --
Tiers I, II, and III -- for registration and notification
purposes, depending solely on the nature of the offense. 34
U.S.C. § 20911. If New Jersey strictly followed federal law,
C.K. would be classified as a Tier III offender based on his
juvenile aggravated sexual assault adjudication. 34 U.S.C.
§ 20911(4)(A). The offender’s tier assignment, in turn,
determines the duration of his registration requirements. 34
U.S.C. § 20915(a). Unlike
N.J.S.A. 2C:7-2(g), SORNA has no
23
permanent lifetime registration provision for juveniles. A
juvenile Tier III offender, although subject to presumptive
lifetime registration, is eligible under SORNA to have his
registration requirements terminated after twenty-five years if
he has a “clean record.” 34 U.S.C. § 20915(a)(3) to (b).
Although Tier I and II offenders are subject to fifteen-year and
twenty-five-year registration periods, respectively, Tier I
offenders are allowed to apply for a shortened registration
period. 34 U.S.C. § 20915(a) to (b).
Currently, under SORNA, states have discretion whether to
include juveniles on their public sex-offender registry
websites. Supplemental Guidelines for Sex Offender Registration
and Notification,
76 Fed. Reg. 1630, 1636-37 (Jan. 11, 2011).
3 In 2016, the United States Attorney General implemented new
SORNA guidelines governing juvenile offenders. See Supplemental
Guidelines for Juvenile Registration Under the Sex Offender
Registration and Notification Act,
81 Fed. Reg. 50,552 (Aug. 1,
2016). Under those guidelines, states that do not register
juveniles who have committed serious sex offenses may still be
compliant with SORNA if the federal government finds that those
3 Initially, SORNA required online public notification for
certain juvenile sex offenders. National Guidelines for Sex
Offender Registration and Notification,
73 Fed. Reg. 38,030,
38,040-41 (July 2, 2008).
24
states have nonetheless “substantially implemented SORNA’s
juvenile registration requirements” through other means. Id. at
50,558.
Moreover, the United States Attorney General may exempt a
state from implementing a provision of SORNA that “would place
the jurisdiction in violation of its constitution, as determined
by a ruling of the jurisdiction’s highest court.” 34 U.S.C.
§ 20927(b). In short, a state’s highest court can declare
unconstitutional a state’s sex-offender registration provision
without necessarily jeopardizing a state’s federal funding.
C.
Before the passage of subsection (g) of
N.J.S.A. 2C:7-2 in
2002, subsection (f) governed the termination of registration
requirements for all adult and juvenile sex offenders.
N.J.S.A.
2C:7-2(f), which is still operative, provides that
a person required to register under this act 4
may make application to the Superior Court of
this State to terminate the obligation upon
proof that the person has not committed an
offense within 15 years following conviction
or release from a correctional facility for
any term of imprisonment imposed, whichever is
later, and is not likely to pose a threat to
the safety of others.
4 “A person who has been convicted, adjudicated delinquent or
found not guilty by reason of insanity for commission of a sex
offense . . . shall register as provided . . . .”
N.J.S.A.
2C:7-2(a)(1).
25
Subsection (f) was part of the original Megan’s Law
registration and notification requirements, which we declared
constitutional in Doe.
142 N.J. at 12-13. 5 In Doe, we rejected
the argument that the registration and notification requirements
constituted a form of punishment, finding instead that they are
“remedial in purpose” and “designed simply and solely to enable
the public to protect itself from the danger posed by sex
offenders.” Id. at 73. We held that 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.” Id. at 12
(emphasis added). The validity of subsection (f)’s presumptive
lifetime registration requirements was not at issue in Doe. The
Court noted that, under subsection (f), a fifteen-year offense-
free registrant could have his registration requirements
terminated if he could “persuade the court that he or she is not
likely to pose a threat to the safety of others.” Id. at 21-22
(citing
N.J.S.A. 2C:7-2(f)).
The underlying assumption of
N.J.S.A. 2C:7-2(f) is that
when a registrant, who has been offense-free for fifteen or more
5 While the Court generally held that Megan’s Law is
constitutional, we mandated due process hearings to afford
registrants judicial review of both their proposed tier
designations and the scope of community notification. Id. at
28-32, 107-08.
26
years, no longer poses a risk to the safety of the public,
keeping him bound to the registration requirements no longer
serves a remedial purpose.
In J.G., this Court grappled with the implication of
applying the presumptive lifetime registration requirements of
N.J.S.A. 2C:7-2(f) to juveniles under the age of fourteen.
169 N.J. 304. In that case, J.G. pled guilty in family court to
committing a second-degree sexual assault. Id. at 309-10. At
the time of the assault, J.G. was ten years old and the victim,
his cousin, just eight years old. Id. at 309. The family court
imposed a suspended indeterminate custodial sentence not to
exceed three years, ordered J.G. to attend a family counseling
program, and advised J.G. that he was subject to the Megan’s Law
lifetime registration and community notification requirements.
Id. at 311-12.
The dilemma faced by the Court in J.G. was to reconcile the
Megan’s Law presumptive lifetime registration requirements with
the Juvenile Code’s “mandate to terminate all dispositions other
than incarceration at age eighteen, or within three years,
whichever is later.” Id. at 334. Under
N.J.S.A. 2C:7-2(f),
J.G. could not move to lift the registration requirements until
age twenty-six, fifteen years following his delinquency
adjudication. See id. at 319-20, 334.
27
We emphasized our Juvenile Code’s continued focus on
rehabilitation as evidenced by such dispositional alternatives
as individual and family counseling, academic and vocational
education, work programs, and community service. Id. at 321-27,
335. We also acknowledged the goals of Megan’s Law, which focus
on the need to protect society from sex offenders by
disseminating critical information to the public. Id. at 339.
In viewing the two statutory schemes, seemingly in conflict, we
found “implausible and anomalous the notion that a child 'sex
offender’ such as J.G. should pursuant to Megan’s Law be subject
to a lifetime registration requirement merely on the basis of a
delinquency adjudication that included no effort to assess his
true culpability.” Id. at 336.
In reconciling the rehabilitative goals of the Juvenile
Code and the public safety goals of Megan’s Law, we held that
for an adjudicated juvenile sex offender under age fourteen, the
“registration and community notification orders shall terminate
at age eighteen,” provided the juvenile can establish in the Law
Division by “clear and convincing evidence that [he] is not
likely to pose a threat to the safety of others.” Id. at 337.
In setting age fourteen as the dividing line, we focused on
the different treatment the Juvenile Code affords youths below
and above that age. Id. at 335-36. We stressed that treating
juveniles under the age of fourteen differently “is essential if
28
we are to sensibly reconcile the Juvenile Code with Megan’s
Law.” Id. at 335. In light of our disposition, we rejected
J.G.’s argument that Megan’s Law constitutes cruel and unusual
punishment under our Federal and State Constitutions. Id. at
339.
Importantly, at the time Doe and J.G. were decided, all
juveniles adjudicated of a sex offense could terminate their
Megan’s Law requirements after a period of fifteen years,
provided they satisfied the criteria laid out in subsection (f)
of
N.J.S.A. 2C:7-2. See J.G.,
169 N.J. at 319-20; Doe,
142 N.J.
at 21. Neither Doe nor J.G. addressed whether permanent
lifetime registration and notification requirements imposed on a
juvenile would violate the substantive due process guarantee of
our State Constitution.
D.
Less than a year after our J.G. decision in 2001, for the
reasons previously discussed, the Legislature enacted the
permanent, irrevocable lifetime registration requirements in
subsection (g) that are applicable to adult as well as juvenile
offenders. L. 2001, c. 392 § 1. In this case, our focus is
only on those juveniles between the ages of fourteen and
seventeen adjudicated delinquent in family court for sex
offenses falling within the ambit of subsection (g). We agree
with the Appellate Division’s determination in In re Registrant
29
L.E. that the Legislature did not intend to override the rights
provided in J.G. to juvenile sex offenders under age fourteen
who are authorized to seek termination of their registration and
notification requirements at age eighteen.
366 N.J. Super. 61,
64-65 (App. Div. 2003). Notably, since 2003 the Legislature has
not enacted legislation that would signal disagreement with L.E.
See Smith v. Fireworks by Girone, Inc.,
180 N.J. 199, 215 (2004)
(“[T]he construction of a statute by the courts, supported by
long acquiescence on the part of the Legislature . . . is
evidence that such construction is in accord with the
legislative intent.” (quoting Quaremba v. Allan,
67 N.J. 1, 14
(1975))).
Neither Doe nor J.G. provides guidance for the resolution
of the substantive due process challenge to subsection (g) as
applied to juveniles. The implicit assumption underlying
subsection (g) is that a juvenile, once adjudicated of certain
sex offenses, will forever pose a danger to the safety of
others, despite the offense-free and productive life he may lead
in the future. C.K. challenges that assumption and the
constitutionality of a statutory provision that has no risk-
based assessment for continued registration and notification
requirements fifteen years following his juvenile adjudication.
V.
A.
30
Our laws and jurisprudence recognize that juveniles are
different from adults -- that juveniles are not fully formed,
that they are still developing and maturing, that their mistakes
and wrongdoing are often the result of factors related to their
youth, and therefore they are more amenable to rehabilitation
and more worthy of redemption. Our juvenile justice system is a
testament to society’s judgment that children bear a special
status, and therefore a unique approach must be taken in dealing
with juvenile offenders, both in measuring culpability and
setting an appropriate disposition. Indeed, the United States
Supreme Court has explained that juvenile courts were created
“to provide measures of guidance and rehabilitation for the
child and protection for society, not to fix criminal
responsibility, guilt and punishment.” Kent v. United States,
383 U.S. 541, 554 (1966).
Among the purposes of the Juvenile Code,
N.J.S.A. 2A:4A-20
to -92, is “to remove from children committing delinquent acts
certain statutory consequences of criminal behavior, and to
substitute therefor an adequate program of supervision, care and
rehabilitation, and a range of sanctions designed to promote
accountability and protect the public.”
N.J.S.A. 2A:4A-21(b).
Although rehabilitation, historically, has been the primary
focus of the juvenile justice system, a second purpose --
increasingly so in recent times -- is protection of the public.
31
See State in Interest of K.O.,
217 N.J. 83, 92-93 (2014); see
also J.G.,
169 N.J. at 320-21 (noting that soon after enactment
of Megan’s Law, Legislature amended Juvenile Code’s statement of
purpose to include “a range of sanctions designed to promote
accountability and protect the public” (quoting
N.J.S.A. 2A:4A-
21)); State in Interest of M.C.,
384 N.J. Super. 116, 128 (App.
Div. 2006) (noting that rehabilitation and protection of society
are among considerations family court must weigh).
Nevertheless, rehabilitation and reformation of the
juvenile remain a hallmark of the juvenile system, as evidenced
by the twenty enumerated dispositions available to the family
court in sentencing a juvenile adjudicated delinquent. See
N.J.S.A. 2A:4A-43(b); State in Interest of C.V.,
201 N.J. 281,
295 (2010). The range of dispositional options signifies that a
“'one size fits all’ approach” does not apply in the juvenile
justice system. C.V.,
201 N.J. at 296 (citing State of New
Jersey, Office of the Child Advocate, Reinvesting in New Jersey
Youth: Building on Successful Juvenile Detention Reform 16
(2009)). The juvenile system’s flexibility in selecting an
appropriate disposition for a young offender allows the family
court to take into account “the complex, diverse, and changing
needs of youth” and to address “the unique emotional,
behavioral, physical, and educational problems of each juvenile
before the court.” Id. at 296.
32
B.
In a series of landmark cases, the United States Supreme
Court declared unconstitutional legal regimes that imposed
capital punishment on juvenile offenders, Roper v. Simmons,
543 U.S. 551, 568-70 (2005); life without parole on juveniles
convicted of non-homicide offenses, Graham v. Florida,
560 U.S. 48, 82 (2010); and mandatory life without parole on juveniles
convicted of homicide offenses, Miller v. Alabama,
567 U.S. 460,
489 (2012). In striking down each of those statutory schemes,
relying on the Eighth Amendment’s ban on cruel and unusual
punishment, the Court grounded its decisions on commonly
accepted scientific and sociological notions about the unique
characteristics of youth and the progressive emotional and
behavioral development of juveniles. We reviewed the breadth of
the social science in Zuber, in which we held that sentencing
judges must consider “the mitigating qualities of youth” when
imposing consecutive prison sentences that are the “practical
equivalent of life without parole.”
227 N.J. at 429 (quoting
Miller,
567 U.S. at 478).
Based on scientific and sociological studies, the United
States Supreme Court and this Court have acknowledged that (1)
“[a] lack of maturity and an underdeveloped sense of
responsibility are found in youth more often than in adults,”
Roper,
543 U.S. at 569 (alteration in original) (quoting Johnson
33
v. Texas,
509 U.S. 350, 367 (1993)); (2) “juveniles are more
vulnerable or susceptible to negative influences” and “have less
control . . . over their own environment,” ibid. (citation
omitted); and (3) the personality and character traits of
juveniles “are more transitory, less fixed,” and “not as well
formed as that of an adult,” id. at 570. See Zuber,
227 N.J. at
439-40. Scientific studies reveal that “parts of the brain
involved in behavior control continue to mature through late
adolescence,” accounting for one of the “fundamental differences
between juvenile and adult minds.” Graham,
560 U.S. at 68; see
also Miller,
567 U.S. at 472 n.5 (“It is increasingly clear that
adolescent brains are not yet fully mature in regions and
systems related to higher-order executive functions such as
impulse control, planning ahead, and risk avoidance.” (citations
omitted)). As a result, “[j]uveniles are more capable of change
than are adults, and their actions are less likely to be
evidence of 'irretrievably depraved character.’” Graham,
560 U.S. at 68 (quoting Roper,
543 U.S. at 570). Because juveniles
are in a state of becoming, they “'have a greater claim than
adults to be forgiven for failing to escape negative influences
in their whole environment,’ and there is 'a greater possibility
. . . that a minor’s character deficiencies will be reformed.’”
Zuber,
227 N.J. at 440 (alteration in original) (quoting Roper,
543 U.S. at 570).
34
In finding unconstitutional juvenile life sentences without
parole in non-homicide cases, the United States Supreme Court
concluded that just because a juvenile defendant “posed an
immediate risk” at one point in his young life does not mean
that he will “be a risk to society for the rest of his life.”
Graham,
560 U.S. at 73. The Court held that a life without
parole sentence denies a juvenile “some meaningful opportunity
to obtain release based on demonstrated maturity and
rehabilitation.” Id. at 75. The Court also struck down the
imposition of a mandatory sentence of life without parole in
juvenile homicide cases because the disposition precludes any
“consideration of [a juvenile’s] chronological age and its
hallmark features -- among them, immaturity, impetuosity, and
failure to appreciate risks and consequences.” Miller,
567 U.S.
at 477.
In the wake of Roper, Graham, and Miller, we held in Zuber
that sentencing judges must consider “the mitigating qualities
of youth” and “exercise a heightened level of care before they
impose multiple consecutive sentences on juveniles which would
result in lengthy jail terms.”
227 N.J. at 429-30. We
encouraged “the Legislature to consider enacting a statute that
35
would provide for later review of juvenile sentences that have
lengthy periods of parole ineligibility.”
6 Id. at 430.
C.
Other state courts of last resort that have addressed the
constitutionality of long-term registration and notification
requirements imposed on juvenile sex offenders offer guidance.
In In re C.P., the Ohio Supreme Court declared an Ohio
statute that subjected certain juvenile offenders to automatic
and mandatory lifetime sex-offender registration and
notification requirements -- with the potential for
reclassification after twenty-five years -- violative of the
cruel-and-unusual-punishment and due-process clauses of the
Federal and Ohio Constitutions.
967 N.E.2d 729, 732, 737 (Ohio
2012). In that case, C.P., age fifteen, was adjudicated
delinquent of kidnapping and raping a six-year old male
relative. Id. at 732. The juvenile court sentenced C.P. to a
minimum three-year period of commitment to the Ohio Department
of Youth Services. Id. at 733. Under an Ohio statute, which
adopted federal SORNA, C.P. was automatically classified as a
Tier III sex offender, which required him to register with the
sheriff every ninety days and to comply with community
6 We also noted that other states had already enacted statutes
that permitted a retrospective review of lengthy juvenile
sentences. Zuber,
227 N.J. at 452 n.4.
36
notification requirements. Id. at 733-34, 738-39. The
notification requirements not only authorized the dissemination
of C.P.’s photograph and personal information to neighbors,
schools, and various agencies and organizations, but also the
placement of C.P. on the electronic sex-offender database. Id.
at 736.
In striking down the statute on constitutional grounds, the
Ohio Supreme Court reasoned: (1) the lifetime registration and
notification requirements are imposed at an age when the
juvenile offender’s character is not yet fixed; (2) the
“statutory scheme gives the juvenile judge no role in
determining how dangerous a child offender might be or what
level of registration or notification would be adequate to
preserve the safety of the public”; and (3) “the juvenile judge
never gets an opportunity to determine whether the juvenile
offender has responded to rehabilitation or whether he remains a
threat to society.” Id. at 741-42, 749. The Court observed
that “[f]ew labels are as damaging in today’s society as
'convicted sex offender’” and that sex offenders are “'the
lepers of the criminal justice system.’” Id. at 746 (quoting
Phoebe Geer, Justice Served? The High Costs of Juvenile Sex
Offender Registration, 27 Dev. Mental Health L. 33, 47 (2008)).
The Court determined that “[l]ifetime registration and
notification requirements run contrary to [the law’s] goals of
37
rehabilitating the offender and aiding his mental and physical
development.” Id. at 742.
Similarly, the Pennsylvania Supreme Court declared that
Pennsylvania’s statute imposing lifetime registration and
notification requirements on sexually violent juvenile offenders
violated the state constitution’s due process guarantee. In re
J.B.,
107 A.3d 1, 2, 10, 14-16 (Pa. 2014). The Pennsylvania
statute authorized termination of the registration requirements
after twenty-five years, provided the juvenile could establish
he did not reoffend within that period, successfully completed a
rehabilitation program and court-ordered supervision, and was
“not likely to pose a threat to the safety of any other person.”
Id. at 7-8 (quoting 42 Pa. Cons. Stat. § 9799.17(b)(2)). Like
the Ohio statute, Pennsylvania’s statute is modeled after the
federal SORNA statute. See id. at 3. Nevertheless, the
Pennsylvania high court held that the sex-offender registration
statute violated the due process rights of juvenile offenders
“by utilizing the irrebuttable presumption that all juvenile
offenders 'pose a high risk of committing additional sexual
offenses.’” Id. at 14 (quoting 42 Pa. Cons. Stat.
§ 9799.11(a)(4)). The court explained that an irrebuttable
presumption doctrine should not apply when a “presumption is not
universally true and a reasonable alternative means currently
38
exists for determining which juvenile offenders are likely to
reoffend.” Ibid.
In J.B., the Pennsylvania Supreme Court held that the
registration statute’s “presumption that sexual offenders pose a
high risk of recidivating is not universally true when applied
to juvenile offenders” because, as studies suggest, “many of
those who commit sexual offenses as juveniles do so as a result
of impulsivity and sexual curiosity, which diminish with
rehabilitation and general maturation.” Id. at 17. The court
concluded that the registration statute’s other parts,
authorizing individualized assessments for determining which
juveniles posed a high risk of reoffending, provided a
reasonable alternative to the use of a discredited presumption.
Id. at 19-20.
VI.
We now determine whether the categorical lifetime
registration and notification requirements imposed on juvenile
offenders by
N.J.S.A. 2C:7-2(g) passes muster under the
substantive due-process guarantee of our State Constitution.
Article I, Paragraph 1 of the New Jersey Constitution
provides:
All persons are by nature free and
independent, and have certain natural and
unalienable rights, among which are those of
enjoying and defending life and liberty, of
acquiring, possessing, and protecting
39
property, and of pursuing and obtaining safety
and happiness.
[N.J. Const. art. I, ¶ 1.]
That paragraph “sets forth the first principles of our
governmental charter -- that every person possesses the
'unalienable rights’ to enjoy life, liberty, and property, and
to pursue happiness.” Lewis v. Harris,
188 N.J. 415, 442
(2006). Those basic rights cannot be abridged by arbitrary
government action. See Robinson v. Cahill,
62 N.J. 473, 491-92
(1973). Although our State Constitution nowhere expressly
states that every person shall be entitled to substantive due
process of law, the expansive language of Article I, Paragraph 1
embraces that fundamental guarantee. Caviglia v. Royal Tours of
Am.,
178 N.J. 460, 472 (2004) (citing Greenberg v. Kimmelman,
99 N.J. 552, 568 (1985)). The guarantee of substantive due process
requires that a statute reasonably relate to a legitimate
legislative purpose and not impose arbitrary or discriminatory
burdens on a class of individuals. See Greenberg,
99 N.J. at
563. Although all laws are presumed to be constitutional, no
law can survive scrutiny under Article I, Paragraph 1 unless it
has a rational basis in furthering some legitimate state
interest. See ibid. Therefore, a statute that bears no
rational relationship to a legitimate government goal and that
40
arbitrarily deprives a person of a liberty interest or the right
to pursue happiness is unconstitutional.
With those fundamental principles in mind, we conclude that
N.J.S.A. 2C:7-2(g) violates the substantive due process rights
of juvenile sex offenders.
VII.
A.
We first acknowledge that since the passage of
N.J.S.A.
2C:7-2(g) in 2002, scientific and sociological studies have
shined new light on adolescent brain development and on the
recidivism rates of juvenile sex offenders compared to adult
offenders. Our commonsense and historical understanding that
children are different from adults is enshrined in our juvenile
justice system and fortified by recent United States Supreme
Court decisions and Zuber, which embraced those studies that
found that juveniles do not possess immutable psychological or
behavioral characteristics. That body of jurisprudence and the
evidentiary record in this case tell us that adolescents are
works in progress and that age tempers the impetuosity,
immaturity, and shortsightedness of youth. They tell us that,
generally, juvenile sex offenders are less likely to reoffend
than adult sex offenders and that the likelihood of recidivism
is particularly low for those who have not reoffended for a long
period of time. They tell us that the permanent status of sex-
41
offender registrant will impair a juvenile, as he grows into
adulthood, from gaining employment opportunities, finding
acceptance in his community, developing a healthy sense of self-
worth, and forming personal relationships. In essence, the
juvenile registrant will forever remain a social pariah.
N.J.S.A. 2C:7-2(g) is grounded on the irrebuttable
presumption that juveniles adjudicated delinquent for committing
certain sex offenses will forever pose a danger to society.
That irrebuttable presumption disregards any individual
assessment of whether a particular registrant is likely to
reoffend, long after the adjudication and long after the
juvenile has become an adult. Those juveniles are, in effect,
branded as irredeemable -- at a point when their lives have
barely begun and before their personalities are fully formed.
They must carry this stigma even if they can prove that they
pose no societal threat. But that irrebuttable lifetime
presumption is not supported by scientific and sociological
studies or our jurisprudence and is not needed given the
fifteen-year look back required by subsection (f).
Even a lifetime presumption with a twenty-five-year look-
back period has been found violative of some states’
constitutions. New Jersey’s lifetime presumption of
dangerousness that attaches to juvenile sex offenders pursuant
to
N.J.S.A. 2C:7-2(g) is more extreme than the registration and
42
notification schemes, as applied to juveniles, struck down by
the Ohio and Pennsylvania Supreme Courts. See C.P.,
967 N.E 2d
at 732, 737; J.B., 107 A.3d at 2, 17. The Ohio and Pennsylvania
schemes, which allowed juvenile sex offenders to seek the
lifting of registration and notification requirements after the
passage of twenty-five years, were deemed constitutionally
offensive because the classifications were not based on ongoing
individual risk assessments. C.P.,
967 N.E 2d at 741-42; J.B.,
107 A.3d at 17.
N.J.S.A. 2C:7-2(g) is even out of step with
federal SORNA, which has no permanent lifetime registration
provision for juveniles. A juvenile Tier III offender under the
federal enactment is subject to a presumptive lifetime
registration but, after twenty-five years, is eligible to have
his registration requirements terminated. 34 U.S.C.
§ 20915(a)(3) to (b).
Subsection (g) of
N.J.S.A. 2C:7-2, moreover, cannot be
viewed in isolation from other provisions of the statute.
Subsection (f) imposes presumptive lifetime registration and
notification requirements for sex offenses covered by subsection
(g) but allows for a juvenile sex offender to be relieved of
those requirements fifteen years after his juvenile adjudication
or release from a correctional facility, provided he has been
offense-free and “is not likely to pose a threat to the safety
of others.” Thus, under subsection (f), those juvenile sex
43
offenders who have reoffended or pose a continuing threat after
fifteen years will not be relieved of their registration and
notification requirements. Subsection (g) has the perverse
effect of keeping on the sex-offender registry those juveniles
who have completed their rehabilitation, not reoffended, and who
can prove after a fifteen-year look-back period that they are
not likely to pose a societal threat. When, in the case of
juveniles, the remedial purpose of Megan’s Law -- rehabilitation
of the offender and protection of the public -- is satisfied,
then the continued constraints on their lives and liberty
pursuant to subjection (g), long after they have become adults,
takes on a punitive aspect that cannot be justified by our
Constitution.
It is at that point that subsection (g), as applied to
juveniles, no longer bears a rational relationship to a
legitimate state purpose and arbitrarily denies those
individuals their right to liberty and enjoyment of happiness
guaranteed by Article I, Paragraph 1 of the New Jersey
Constitution.
It also bears emphasizing that holding that subsection (g)
runs afoul of a fundamental right guaranteed under our State
Constitution will not likely jeopardize any federal funding to
this State. First, as mentioned earlier, subsection (g) is more
severe and inflexible than the Tier III provisions of the
44
federal SORNA. Second, a state is likely exempt from the
federal SORNA’s dictates when implementing one of its provisions
is violative of a state’s constitution, “as determined by a
ruling of the jurisdiction’s highest court.” 34 U.S.C.
§ 20927(b).
B.
C.K.’s case in many ways exemplifies why subsection (g)
does not bear a reasonable relationship to a legitimate state
purpose when applied to juvenile offenders. Twenty years have
passed since C.K. committed his offense as a juvenile, and his
adjudication occurred more than fourteen years ago. C.K. is now
thirty-eight years old and has not committed an offense in
twenty years and none since his juvenile delinquency
adjudication. Over the years, he has complied with his Megan’s
Law responsibilities. He has graduated from college and
received a master’s degree in counseling, remained gainfully
employed working for a nonprofit agency that provides services
for adults suffering from mental illness, and has been a
contributing member of his community. Multiple psychological
evaluations attest that he is an extremely low risk to reoffend.
Nevertheless, C.K. remains a sex-offender registrant. That
tainted status has permeated various spheres of his life --
professional, personal, and social. He often feels isolated and
depressed. He has turned down opportunities for professional
45
advancement for fear that his juvenile sex-offender registrant
status will be revealed. He despairs that the permanent
designation of sex offender registrant will impair his ability
to fully participate in the lives of his children, if he one day
has a family.
Solely because of the nature of the offense he committed as
a juvenile, C.K. is presumed under subsection (g) to be a
permanent, lifetime risk to the safety of the public. That
irrebuttable presumption, however, is not supported by
scientific or sociological studies, our jurisprudence, or the
record in this case. Because it does not further a legitimate
state interest when applied to juveniles, subsection (g) does
not withstand scrutiny under Article I, Paragraph 1 of our State
Constitution. 7
VIII.
For the reasons expressed, we hold that
N.J.S.A. 2C:7-2(g)
is unconstitutional as applied to juveniles adjudicated
delinquent as sex offenders. Under subsection (f) of
N.J.S.A.
2C:7-2, fifteen years from the date of his juvenile
adjudication, C.K. will be eligible to seek the lifting of his
7 In light of this disposition, we need not address C.K.’s
claims that subsection (g) violates the Eighth Amendment’s
prohibition against cruel and unusual punishment and the New
Jersey Constitution’s corollary provision under Article I,
Paragraph 12.
46
sex-offender registration requirements. At that time, he must
be given the opportunity to demonstrate by clear and convincing
evidence that he has not reoffended and no longer poses a threat
to others and therefore has a right to be relieved of his
Megan’s Law obligations and his status as a sex-offender
registrant.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.
47
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