(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued January 30, 2001 -- Decided March 2, 2001
LaVECCHIA, J., writing for a unanimous Court.
The issue raised in this appeal is whether the Attorney General's Registrant Risk Assessment Scale (RRAS)
and the Registrant Risk Assessment Scale Manual (Manual), which are used to determine the risk of re-offense by a
sex offender pursuant to the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -11, (RCNL or
Megan's Law), can consider prior convictions of a sexual nature as “criminal history” factors even where those
convictions would not require registration under the RCNL.
Registrant J.M. has an extensive criminal background, and it is his 1966 rape conviction that brings him
within the purview of the RCNL. In August 1999, the Essex County Prosecutor served J.M. with notice of intent to
designate him a “Tier 3, High Risk, Sex Offender” designation, due to his score of eighty-nine points on the RRAS.
The “High Risk” designation would require notification to public and private educational institutions, day care
centers, camps, community organizations, and specified residential and business addresses. J.M. objected to the
classification and was appointed counsel to represent him at a hearing.
J.M. argued at the hearing that the State erroneously considered his 1987 conviction for attempted criminal
restraint when evaluating the criminal history factors, numbers one through seven on the RRAS. The conviction
arose out of a charge of attempted kidnapping, in which the State alleged that J.M. drove alongside a sixteen-year-
old girl who was walking to school and attempted to pull her into the car. The girl managed to elude J.M.. J.M.
pled guilty to the crime of third-degree attempted criminal restraint, and he was sentenced to five years probation
and one-year in jail.
J.M. disputed his point assessments for virtually all of the categories on the RRAS because this 1987
conviction was included in arriving at those assessments. For similar reasons, J.M. also objected to his three
lewdness offenses being considered. J.M.'s argument was premised on the fact that the 1987 attempted criminal
restraint conviction and his lewdness offenses do not fit within the definition of “sexual offense” requiring
registration under Megan's Law. Because those crimes were not registrable offenses, he argued, they should not be
included among the criminal history factors indicative of high risk of re-offense.
The trial court agreed with J.M., and held that an offense that does not require registration is not a sex
offense for purposes of Megan's Law and could be considered only under factor eight of the RRAS, “History of
Anti-Social Acts.” Accordingly, the Court reassessed J.M.'s RRAS score, resulting in J.M. being classified as a
“Tier Two” sex offender and subject to more limited notification.
The State appealed, arguing that the trial court erred in finding that registrant's criminal restraint and
lewdness offenses could not be considered when evaluating J.M.'s risk of re-offense under factors one through
seven. The State argued that for the RRAS to serve as an accurate predictor of a registrant's risk of recidivism, all
prior crimes with a sexual component must be considered as part of a registrant's criminal history.
The Appellate Division rejected the State's argument. It reasoned that N.J.S.A. 2C:7-2 specifically
enumerates offenses that are deemed sex offenses “[f]or purposes of this act . . .” and that attempted criminal
restraint and lewdness were not identified in that provision.
The Supreme Court granted the State's petition for certification.
HELD: In determining a sex offender's classification and the resulting notification under the RCNL, all prior sexual
offenses can be assessed under the factors relating to criminal history, even if such offenses would not require
registration.
1. Under the RCNL, the task of establishing a methodology for assessing risk of re-offense was delegated to the
Attorney General, informed by the RCNL's enumeration of factors to be included. The Attorney General was
directed to consult with an advisory council and to promulgate guidelines and procedures for community
notification. In constructing the RRAS, the Attorney General and his experts focused on the seriousness of the
offense should the offender recidivate and the likelihood that the offender will recidivate. The RRAS is divided into
four categories that encompass factors relevant to placing an offender within one of the three tiers based on the
future risk of re-offense: (1) seriousness of the offense; (2) offense history; (3) characteristics of offender; and (4)
community support. Pertinent to this appeal are the three factors under the seriousness of-offense category and the
five factors under the offense-history category. The RRAS and Manual instruct the prosecutor to rate the offender
“Low Risk,” “Moderate Risk” or “High Risk” for each factor, and the offender is attributed the score of 0, 1, or 3,
respectively. Because certain categories are deemed more important than others in evaluating an offender's risk of
re-offense and the seriousness of any future offense, the categories are weighted differently. An offender's score for
each factor under the seriousness-of-offense category is multiplied by five, whereas the offender's score for each
factor under the offense history category is multiplied by three. The offender's scores are totaled, and the offender
is assigned a tier designation depending on that total score. (Pp. 7-14)
2. The Court has already approved the weighted approach of the Attorney General's guidelines. In re Registrant
C.A.,
146 N.J. 71 (1996). In that case, the Court stated that the RRAS was appropriately designed so that people
like “exhibitionists,” who are likely to re-offend but whose offenses are low in seriousness, would not be ranked as
high as people who commit fewer, but more serious offenses, like rapists or sexual thrill killers. The Court's
reference to “exhibitionists” was not gratuitous. The Court also noted the expert panel's express use of lewdness as
an example of proper weighting when using the RRAS. Thus, the Court contemplated lewdness, or exhibitionist
offenses, as appropriate for consideration and weighting under all of the criminal history factors of the RRAS. (Pp.
14-19)
3. Registrant cites to N.J.S.A. 2C:7-2b, “Registration of Sex Offenders,” which states that “for purposes of this act a
sex offense shall include the following,” and does not include lewdness and attempted criminal restraint among the
enumerated offenses. This section, however, is not a general definitional section of the RCNL, but rather specifies
to whom the registration requirement will apply. Reading that definition as controlling the Attorney General in his
construction of a RRAS to reliably assess risk of re-offense defies common sense and thwarts the community
protection purpose of the RCNL. (Pp. 19-23)
4. The Legislature balanced the public interest with that of registrants when determining which offenders would
have to register. Once it is determined that an offender must register, however, the analysis changes to the
likelihood of re-offense. It was entirely reasonable for the Attorney General and his experts to determine that sexual
offenses in a registrant's past require assessment through the prism of the seven criminal history factors, which
include degrees of force, contact, age of victim, victim selection, and length of time since last offense. The one
factor focusing on anti-social acts does not, as fully, examine a past sexual offense episode. Accordingly, the Court
concludes that the RCNL does not prohibit the Attorney General from concluding that non-registrable sexual
offenses are best evaluated on the RRAS under the criminal history factors of numbers one through seven. (Pp. 23-
26)
5. The lower courts' assessment of the registrant's risk of re-offense was flawed by the disallowance of
consideration of the 1987 conviction for attempted criminal restraint and his lewdness offenses under criminal
history factors one through seven, and therefore the matter must be remanded. Because there is a factual dispute
concerning the number of lewdness offenses, the trial court will address those offenses, as well. (P. 26)
The matter is REVERSED and REMANDED.
JUSTICE STEIN and JUSTICES COLEMAN, LONG, and ZAZZALI join in JUSTICE
LaVECCHIA's opinion. CHIEF JUSTICE PORITZ and JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
142 September Term 1999
IN THE MATTER OF
REGISTRANT J.M.
________________
Argued January 30, 2001 _ Decided March 28, 2001
On certification to the Superior Court,
Appellate Division.
Jessica S. Oppenheim, Deputy Attorney General,
argued the cause for appellant, State of New
Jersey (John J. Farmer, Jr., Attorney General
of New Jersey, attorney).
Brian J. Neff, Designated Counsel, argued the
cause for respondent, J.M. (Peter A. Garcia,
Acting Public Defender, attorney).
The opinion of the Court was delivered by
LaVECCHIA, J.
This is yet another challenge to the Attorney General
Guidelines for Law Enforcement for the Implementation of Sex
Offender Registration and Community Notification Laws,
specifically the Registrant Risk Assessment Scale (“RRAS”) and
the Registrant Risk Assessment Scale Manual (“Manual”) components
of those guidelines. Previous challenges to the RRAS and the
Manual have been addressed by this Court. In re Registrant G.B.,
147 N.J. 62, 69 (1996); In re Registrant C.A.,
146 N.J. 71, 100-
01 (1996); Doe v. Poritz,
142 N.J. 1, 24 n.5 (1995); see also
Paul P. v. Farmer,
80 F. Supp.2d 320, 325 (D.N.J.), judgment
vacated by
92 F. Supp.2d 410, 414 (D.N.J. 2000) (dissolving
injunction and allowing amended guidelines on uniform method of
distribution of community notification to proceed). We have
upheld the RRAS, imbuing it with an entitlement to deference, but
noting that the ultimate responsibility for determining the
extent of community notification is reposed with the trial court,
assisted in certain circumstances by expert testimony. In re
G.B., supra, 147 N.J. at 69.
The RRAS is composed of four categories and, within each,
numerous factors. (Appendix A). It is recognized as a useful
tool for assessing risk of re-offense of a registrant,
designating an individual's tier of risk of re-offense, and the
scope of community notification pertinent to that tiered
designation. Ibid. In this matter, registrant objects to the
inclusion under the RRAS's “criminal history” factors one through
seven of certain prior convictions for offenses of a sexual
nature. Specifically, he contends that if the offense would not
require his registration under the Registration and Community
Notification Laws, N.J.S.A. 2C:7-1 to -11 (RCNL), commonly known
as Megan's Law, then it should not be included under factors one
through seven of the RRAS that examine criminal offense history.
Instead, he asserts that those nonregistrable sex offenses should
be limited to consideration only under the “anti-social acts”
factor of the RRAS, thus reducing the capacity of those offenses
to inflate the assessment of his risk of re-offense. Both the
trial court and the Appellate Division agreed and held that
registrant's nonregistrable sex offenses could not be considered
under the criminal history factors one through seven. We granted
certification,
165 N.J. 489 (2000), and now reverse.
At his hearing, J.M. contended the State erroneously considered his 1987 conviction for attempted criminal restraint when evaluating the criminal history factors, numbers one through seven, on the RRAS, culminating in an incorrect score and tier designation. The facts relevant to that conviction were that registrant had been charged with attempted kidnapping in 1986 on the basis of his attempt to abduct a sixteen-year-old girl walking to school. Registrant drove alongside the girl, and while asking for directions, attempted to pull her into the car by grabbing her sleeve. She managed to elude him. The charge was amended to third-degree attempted criminal restraint, to which J.M. pled guilty and received a sentence of five years probation with a mandatory 364-day jail sentence.
J.M. disputed his point assessments for virtually all of the categories on the scale because his 1987 conviction for attempted criminal restraint was included in arriving at those point assessments. For similar reasons, J.M. also objected to his three lewdness offenses being considered under factors one through seven when assessing his risk of re-offense. Although the State argues that J.M. has three past lewdness convictions, we note that that contention is disputed. J.M.'s argument was premised on the fact that the 1987 attempted criminal restraint conviction and his lewdness offenses do not fit within the definition of a “sexual offense” requiring registration under Megan's Law. N.J.S.A. 2C:7-2(b)(2). Because those crimes are not registrable offenses, he argued, they should not be included among the criminal history factors “indicative of high risk of re-offense” under the Attorney General's guidelines for determining the appropriate level of notification for a registrant. N.J.S.A. 2C:7-8(b)(3).
The trial court agreed, reasoning that an offense that does not require registration under N.J.S.A. 2C:7-2 is not a “sex offense” for purposes of Megan's Law and could be considered only under factor eight of the RRAS, “History of Anti-Social Acts.” Accordingly, the court reassessed J.M.'s RRAS score, additionally reducing J.M.'s score for reasons not pertinent to this appeal, and held that the State had proven by clear and convincing evidence only a point assessment of fifty-four. J.M. was classified as a “Tier Two” sex offender and, consistent with that moderate risk assessment, the court directed that notification be given to “all secondary public and private educational institutions, registered community organizations and summer camps within a one-half mile of the registrant's residence . . . .”
On appeal, the State argued that the trial court erred in finding that registrant's attempted criminal restraint and various lewdness offenses could not be considered when evaluating J.M.'s risk of re-offense under factors one through seven. According to the State, the Scale takes an “actuarial” or combined experience approach designed to encompass all sexual offense history so as to evaluate more accurately future risk of re-offense, the very purpose underlying the tier classification and resultant scope of notification for each registrant. The State contended that the entire statutory scheme of registration and notification of sex offenders evinces a legislative contemplation that all of an offender's sexual offenses be considered for purposes of tiering, once it is determined that a sex offender is subject to registration under the act. Thus, only by considering all prior crimes with a sexual component as part of a registrant's criminal history will the Scale serve as an accurate predictor of a registrant's risk of recidivism.
That argument was rejected by the Appellate Division in an unpublished decision. The court reasoned that N.J.S.A. 2C:7-2 specifically enumerates offenses that are deemed sex offenses “[f]or purposes of this act . . .” and found that attempted criminal restraint and lewdness were not “sex offenses” as defined in N.J.S.A. 2C:7-2. Accordingly, the court concluded that the State's contention that a registrant's nonregistrable sexual offenses could be considered under “criminal history” factors in determining the scope of notification conflicted with the express language of Megan's Law.
The Legislature enacted the RCNL “to protect the community from the dangers of recidivism by sexual offenders.” In re C.A., supra, 146 N.J. at 80. The Legislature declared that the danger of recidivism posed by sex offenders who commit predatory acts against women and children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that permits law enforcement officials to identify and alert the public when necessary for public safety. N.J.S.A. 2C:7-1a; see also Alan A. v. Verniero, 970 F. Supp. 1153, 1175 (D.N.J.) (stating that Megan's Law was enacted to provide knowledge as measure of self-defense to help protect most vulnerable community members from sex offenders), vacated, 135 F.3d 763 (3d Cir. 1997) .
The RCNL sets forth “basically simple” categories of persons subject to registration. Doe v. Poritz, supra, 142 N.J. at 20. Persons “convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of” sex offenses enumerated in the RCNL, on or after its enactment, must register. N.J.S.A. 2C:7-2b(2). The RCNL's registration requirement also reaches certain sex offenders whose offenses pre-date the RCNL if the offender's conduct was found to be “repetitive and compulsive.” N.J.S.A. 2C:7-2b(1). Succinctly put,
[t]he sex offenses that trigger the laws for those previously convicted are aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to N.J.S.A. 2C:13-1(c)(2), and for those convicted after their effective date, added to the foregoing are various laws concerning endangering the welfare of a child, luring or enticing, criminal sexual contact if the victim is a minor, and kidnapping, criminal restraint, or false imprisonment if the victim is a minor and the offender not the parent; and in all cases an attempt to commit any of the foregoing.
The RCNL further requires notification to the community concerning sex offenders assessed to be at a moderate or high risk to re-offend. N.J.S.A. 2C:7-8c(2) and (3). That latter task, namely to establish a methodology for assessing risk of re- offense, was delegated to the Attorney General to implement, informed by the RCNL's enumeration of factors to be included as relevant to the risk of re-offense. N.J.S.A. 2C:7-8; In re C.A., supra, 146 N.J. at 88.
The Attorney General was directed to consult with an advisory council and thereupon to promulgate guidelines and procedures for community notification. N.J.S.A. 2C:7-8a; see
N.J.S.A. 2C:7-8(d)(providing that “[i]n order to promote uniform application of the notification guidelines . . . the Attorney General shall develop procedures for evaluation of the risk of re-offense and implementation of community notification”); see also Doe v. Poritz, supra, 142 N.J. at 23 (stating that Attorney General is allocated broad powers under RCNL to adopt guidelines binding on law enforcement agencies).
The factors decreed by the Legislature to be relevant to risk of re-offense and therefore to be included within the guidelines the Attorney General was to develop were set forth in the statute:
Factors relevant to risk of re-offense shall include, but not be limited to, the following:
(1) Conditions of release that minimize risk of re-offense, including but not limited to whether the offender is under supervision of probation or parole; receiving counseling, therapy or treatment; or residing in a home situation that provides guidance and supervision;
(2) Physical conditions that minimize risk of re-offense, including but not limited to advanced age or debilitating illness;
(3) Criminal history factors indicative of high risk of re-offense, including:
(a) Whether the offender's conduct was found to be characterized by repetitive and compulsive behavior;
(b) Whether the offender served the maximum term;
(c) Whether the offender committed the sex offense against a child;
(4) Other criminal factors to be considered in determining risk, include:
(a) The relationship between the offender and the victim;
(b) Whether the offense involved the use of a weapon, violence, or infliction of serious bodily injury;
(c) The number, date and nature of prior offenses;
(5) Whether psychological or psychiatric profiles indicate a risk of recidivism;
(6) The offender's response to treatment;
(7) Recent behavior, including behavior while confined or while under supervision in the community as well as behavior in the community following service of sentence; and
(8) Recent threats against persons or expressions of intent to commit additional crimes.
In compliance with that directive, the Attorney General
promulgated guidelines that initially were determined to be
deficient, Doe v. Poritz, supra, 142 N.J. at 24 n.5, leading to
the promulgation of replacement guidelines containing the current
RRAS and Manual to guide prosecutors in risk assessment and to
promote uniformity in notification. In re C.A., supra, 146 N.J.
at 100-01. The guidelines were revised in March 2000 in response
to a determination by the District Court that there was “no
uniform method of distribution which ensures that, in all twenty-
one counties, Megan's Law notices will be distributed in a manner
reasonably calculated to get the information to those with a
'particular need for it' while avoiding 'disclosure to those who
have no similar need.'” Paul P., supra, 80 F. Supp.
2d at 325
(quoting Fraternal Order of Police v. Philadelphia,
812 F.2d 105
(3d Cir. 1987). In complying with the court's direction,
however, the Attorney General did not alter either the RRAS or
Manual. Paul P., supra, 92 F. Supp.
2d at 414.
Turning to the development of the RRAS, we note that the
Attorney General did convene “a committee composed of mental
health experts as well as members of the Law Enforcement
Committee, which drafted [a] Scale and the accompanying
Registrant Risk Assessment Manual . . . which explains the
Scale.” In re C.A., supra, 146 N.J. at 82 (footnote omitted).
The RRAS takes an objective approach in determining an offender's
risk of re-offending and, accordingly, establishing the scope of
notification. In constructing the RRAS, the Attorney General
focused on the “seriousness of the offense should the offender
recidivate” and the “likelihood that the offender will
recidivate.” Registrant Risk Assessment Scale Manual at 2-3.
The RRAS is divided into four categories that encompass
factors relevant to placing an offender within one of three tiers
based upon the future risk of re-offense. Those four categories
are (1) seriousness of the offense; (2) offense history; (3)
characteristics of offender; and (4) community support. Id. at
4. Thirteen factors are distributed among the four categories,
incorporating both statutory factors and factors deemed by the
Committee to be relevant to the risk of re-offense. In re C.A.,
supra, 146 N.J. at 82; Registrant Risk Assessment Scale Manual at
6-10. “In selecting the criteria to be incorporated into the
Scale, the statutory requirements set forth in N.J.S.A. 2C:7-6
[sic] have been subsumed in the criteria.” Registrant Risk
Assessment Scale Manual at 2; see In re C.A., supra, 146 N.J. at
88 (noting that N.J.S.A. 2C:7-8b “enumerates certain factors
relevant to risk of re-offense that 'shall [be] include[d]' in
the guidelines, but provides that the guidelines need 'not be
limited to' the enumerated factors”).
Pertinent to this appeal are the three factors under the
seriousness-of-offense category and the five factors under the
offense-history category. The seriousness-of-offense category
includes the following factors: (1) degree of force; (2) degree
of contact; and (3) age of victim. Registrant Risk Assessment
Scale. The factors under the offense-history category are (1)
victim selection; (2) number of offenses/victims; (3) duration of
offensive behavior; (4) length of time since last offense; and
(5) history of antisocial acts. Ibid.
The RRAS and Manual instruct the prosecutor to rate the
offender “Low Risk,” “Moderate Risk” or “High Risk” for each
factor. Depending on that rating, the offender is attributed a
score of 0, 1, or 3, respectively. Because the Attorney General
deemed certain categories more important than others in
evaluating an offender's risk of re-offense and the seriousness
of that future offense should the offender recidivate, the
categories are weighted differently. An offender's score for
each factor under the seriousness-of-offense category is
multiplied by five, whereas the offender's score for each factor
under the offense history category is multiplied by three.
Registrant Risk Assessment Scale Manual at 4-5. The offender's
scores for each factor in each category are totaled, and the
offender is assigned a tier designation depending on his or her
total score. A total score ranging from 0 to 36 results in a low
risk or Tier One classification; a score of 37 to 73 results in a
moderate risk or Tier Two classification; and a score of 74 to
111 results in a high risk or Tier Three designation. Registrant
Risk Assessment Scale Manual at 5; see also In re Registrant
C.A., supra, 146 N.J. at 81 (“All registrants are subjected to at
least Tier One notification, which requires registration with law
enforcement agencies.”). Ultimate responsibility for the scope
of notification is reposed with the trial court, which is to
determine tier classification and scope of notification following
a hearing in which the burden of proof is on the State. Doe v.
Poritz, supra, 142 N.J. at 12; see also E.B. v. Verniero,
119 F.3d 1077, 1111 (3d Cir. 1997) (finding that due process requires
clear and convincing standard of proof with burden on the State
to determine risk level, geographic area of notice, and to whom
notice will be provided).
We . . . have upheld the legislation requiring sex offenders to register with law enforcement, N.J.S.A. 2C:7-1 to -5, and the act requiring law enforcement, in certain circumstances, to notify community groups and individuals of the presence of sex offenders, N.J.S.A. 2C:7-6 to -11. More recently, we upheld the Attorney General's sex-offender classification guidelines, known as the Registrant Risk Assessment Scale ("RRAS" or "the Scale").
[In re G.B., supra, 147 N.J. at 69 (citations omitted).]
The registrant in In re C.A. challenged the construct of the RRAS generally, calling into account its usefulness in reliably predicting risk of re-offense on which the scope of notification depends. In re C.A., supra, 146 N.J. at 88. In addition, the registrant challenged his risk assessment score determined by the prosecutor, specifically objecting to the inclusion of those offenses in his criminal history that did not result in a judgment of conviction. Ibid.
Regarding the overall challenges to the reliability of the RRAS, the Court analyzed the RRAS's structure. The Scale is divided into “static” categories related to the registrant's prior criminal conduct, specifically “seriousness of offense” and “offense history,” and “dynamic” categories evidencing current conditions, namely “characteristics of offender” and “community support.” Id. at 103-04. Experts who assisted the Attorney General in the design of the RRAS developed the weighted approach. The Court approved that approach, which places greater emphasis on the static factors relating to past criminal conduct: The Committee's decision to weight the static factors, particularly the Seriousness of Offense category, higher than the dynamic factors is consistent with the majority of scientific literature in this area. See, e.g., Vernon L. Quinsey et al., Predicting Sexual Offenses, in Assessing Dangerousness, 114 (Jacquelyn C. Campbell ed., 1995); Joseph J. Ranero & Linda Meyer Williams, Recidivism Among Convicted Sex Offenders: A 10-Year Follow up Study, 49 Federal Probation 58 (1985); Frank Tracy et al., Program Evaluation: Recidivism Research Involving Sex Offenders, in the Sexual Aggressor, 198 (Joanne G. Greer & Irving D. Stuart eds., 1993). Most studies show that the static factors used in the Scale are the best predictors of risk of re-offense. Ibid. Risk assessment experts generally agree that the best predictor of a registrant's future criminal sexual behavior is his or her prior criminal record. We emphasize that the focus on prior offenses is not due to any attempt at punishment but is rather a scientific attempt to better protect the public safety from registrants likely to re-offend. Although the static factors are weighted the highest, the Scale also includes various dynamic factors, such as the registrant's likely response to treatment, residential support, employment/educational stability, and therapeutic support. Those factors were weighted less heavily in the Scale because the scientific literature generally shows that they are not as good predictors of risk of re-offense as are the static factors. Ibid. Although the weights assigned to the categories in the Scale have not been scientifically proven to be valid, the State has produced sufficient evidence to convince us that the factors used in the Scale are reliable predictors of recidivism and are weighted in the Scale according to their relative effectiveness as predictors. The greater weight attached to the static categories is in accord with expert opinion on criminal sexual behavior. Cf. W.P. v. Poritz, [ 931 F. Supp. 1199, 1222 (D.N.J. 1996) (finding that higher weight accorded to past offenses does not violate due process)].
More recent studies continue to demonstrate that static factors,
such as offense history, are better predictors of long-term
recidivism. R. Karl Hanson & Andrew J.R. Harris, Where Should We
Intervene? 27 Criminal Justice & Behavior 6 (2000) (citing R.
Karl Hanson & Monique T. Bussiere, Predicting Relapse: A Meta-
Analysis of Sexual Recidivism Studies, 66 Journal of Consulting &
Criminal Psychology, 348-362 (1998).
The Court also approved another weighted aspect of the
RRAS's design, which is the emphasis placed on assessment of the
seriousness of the prior offenses:
The Scale was therefore appropriately
designed so that people who are very likely
to recommit their offense, but whose offenses
are low in seriousness, such as
exhibitionists, would not be ranked as high
on the Scale as people who commit fewer, but
more serious, offenses such as rapists or
sexual thrill killers. The Attorney General's
decision to include factors in the Scale that
relate to the quality or nature of a
re-offense is consistent with the RCNL and
Doe v. Poritz.
[In re C.A., supra, 146 N.J. at 102 (emphasis
added) (citation omitted).]
The Court's reference to “exhibitionists” was not
gratuitous. In understanding and approving the RRAS's weighted
approach to static factors generally and, then again, with the
weighted factor of “seriousness of offense,” the Court noted the
expert panel's express use of the offense of lewdness in its
example of proper weighting when using the RRAS to evaluate risk
of re-offense. The expert panel and the Attorney General clearly
envisioned prior criminal history to include assessment of, among
other sexual offenses, acts of lewdness, adjusting the scoring of
such offenses to reflect the panel's view of the lower risk
presented by such behaviors even if the registrant were
compulsive:
The criteria listed in the “seriousness of
offense” category have been given the most
weight, to be multiplied by five. The
panel's reasoning is twofold. First, it is
intended that the violent, predatory offender
be rated higher than those who have not
committed such offenses. Giving the highest
weighting score to the “seriousness of
offense” characteristics accomplishes this
goal. Second, the panel wishes to have those
with lower level offenses, in particular,
lewdness crimes, such as exhibitionism, rated
as lower risk even though the registrant
might be quite compulsive, so as to reflect
the lower risk of harm to the community.
This goal, too, is accomplished by the heavy
weighing of these criteria. These goals
mirror both the relative severity of
statutory penalties as well as the intent of
the notification statue itself.
[Registrant Risk Assessment Scale Manual at 4
(emphasis added).]
See also Registrant Risk Assessment Scale Manual at 6 (setting
forth examples of use of criteria: “Degree of Force” detailing
Low Risk example to include “offender exposes self to child,” and
“Degree of Contact” detailing “exhibitionism” as low risk
example).
Thus, the Court in In re C.A., supra, contemplated lewdness,
or exhibitionist offenses, as appropriate for consideration and
weighting under all of the criminal history factors of the RRAS.
Although not squarely confronted with an argument that such
offenses could not be so considered because they do not fit the
RCNL's definition of “sex offenses,” the Court's acceptance of
the RRAS's design of heavily weighted static factors as best
predictors of the risk of re-offense is consistent with our
approach to that specific argument now. The RRAS should operate
to serve at its optimum in predicting risk of re-offense, for
that is the very purpose of the RCNL. The Attorney General and
his experts determined that all offenses of a sexual nature are
best assessed, when evaluating risk of re-offense, under the
various factors of “criminal history,” and not confined to the
one factor of anti-social acts. To restrict their consideration
as registrant would prefer thwarts the design of the RRAS.
Aside from its apparent inconsistency with the Court's
approval of the RRAS's design, the registrant's argument is
inconsistent with the scope of the Attorney General's delegated
authority to devise an assessment tool for use in reliably and
uniformly predicting risk of re-offense. In In re C.A., supra,
147 N.J. at 89, the Court concluded that the use of nonconviction
offenses was intended by the Legislature to be part of the
statutory factors of “criminal history” and “other criminal
history” that were meant to be considered in the assessment of
risk of re-offense. See N.J.S.A. 2C:7-8b(3) and (4). Even if
not perceived to fall within the reasonable contemplation of
those statutorily identified factors, the Court determined that
including information concerning nonconviction offenses was
within the scope of the Attorney General's delegated power, which
was not limited to consideration of only enumerated factors.
Ibid. The Attorney General's decision to include such
information in the scale was within that delegated discretion so
long as the Attorney General's exercise of discretion did not
plainly transgress the statute. Ibid.
We are unpersuaded that the legislative reference in
N.J.S.A. 2C:7-2b, stating that “for purposes of this act a sex
offense shall include the following,” was meant to constrain the
Attorney General in his construction of a tool for use by law
enforcement agencies in reliably predicting risk of re-offense by
a sex offender. We are inclined to take a less restrictive
approach with RRAS. The Attorney General and his consulting
experts had a difficult task assigned to them. The Legislature
did not prescribe to the Attorney General an exhaustive list of
factors to be used, as noted in In re C.A., supra. It allowed
the administering agent, the Attorney General, and his experts,
latitude in bringing their expertise to bear in determining what
factors are more or less reliable in helping to predict risk of
re-offense. See N.J.S.A. 2C:7-8b (stating “factors relevant to
risk of re-offense shall include, but not be limited to, the
following . . . .”). Indeed, the section of the statute
concerning notification refers generally to both “sex offense”
and “offense” signaling a breadth of information available to the
Attorney General to use and weigh accordingly. N.J.S.A. 2C:7-
8b(3). Other language in that section also supports the
conclusion that the Attorney General was not prohibited from
determining that nonregistrable sexual offenses are best
evaluated, for purposes of assessing risk of re-offense, under
the registrant's “criminal history” on the RRAS. N.J.S.A. 2C:7-
8a provides that the “guidelines shall identify factors relevant
to the risk of re-offense” and some relevant factors that shall
be included are “[c]riminal history factors indicative of high-
risk of re-offense;” “[w]hether the offender's conduct was found
to be characterized by repetitive and compulsive behavior;” and
“[t]he number, date and nature of prior offenses.” N.J.S.A.
2C:7-8b. That language suggests that flexibility be afforded to
the Attorney General to review comprehensively a registrant's
past sexual offense history, not just registrable sex offenses,
when judging the registrant's risk of re-offense. Reading the
definition of “sex offenses,” contained not in a general
definitional section of the RCNL, but rather in the section
specifying to whom the registration requirement will apply, as
controlling the Attorney General in his construction of a RRAS to
reliably assess risk of re-offense, defies common sense and
thwarts the community protection purpose of the RCNL.
Furthermore, we must not lose sight of the fact that
originally the Legislature passed a series of separate acts, all
collectively known as “The Registration and Community
Notification Laws.” The registration requirement, wherein the
“for purposes of this act” language appears, is contained in the
piece of legislation enacted as L. 1994, c. 133. The legislation
containing the requirement for the creation of notification
guidelines, and the factors the Attorney General was to use, was
enacted as L. 1994, c. 128. Those separate, but obviously
complementary, enactments require sensible application consistent
with the Legislature's overarching intent to protect the
citizenry. Sutherland Statutory Construction § 46:05 at 154 (6th
ed. 2000)(stating that statute's overall scheme is to be
considered, and its various parts animated by one general purpose
and intent); Kimmelman v. Henkels & McCoy, Inc.,
108 N.J. 123,
129 (1987) (finding that court should not consider only specific
statute in question, but rather should consider entire
legislative scheme of which it is part).
N.J.S.A. 2C:7-2b does set forth those offenses that the term
“sex offenses” shall include “for purposes of the act.” Lewdness
and attempted criminal restraint where the conviction occurred
before the enactment of the RCNL are not included. N.J.S.A.
2C:7-2, however, concerns the “Registration of Sex Offenders,”
and thus we read that section only as precluding consideration of
either of those offenses to require registration. We will not
import from that section a restriction on the Attorney General in
determining how to assess past criminal conduct of a sexual
nature when assessing risk of re-offense.
The Legislature balanced the public interest with that of
registrants when determining which offenders would have to
register under N.J.S.A. 2C:7-2. See Doe v. Poritz, supra, 142
N.J. at 20 (stating that it has never been explained or
challenged why certain offenders, but not others, must register
under the act). However, once it has been determined that an
offender must register, the analysis changes. Id. at 14 (stating
that Megan's Law has two basic provisions, to register certain
offenders, and secondly to notify the public of “the scope of
that notice measured by the likelihood that such offender will
commit another offense”). The registrant's past offenses that
include a sexual component are relevant in assessing the
registrant's risk of re-offense.
Under N.J.S.A. 2C:7-2, this registrant's 1987 conviction for
attempted criminal restraint would have required him to register
under Megan's Law but for the fact that the conviction occurred
before the effective date of Megan's Law. Once it was
determined, however, that petitioner was subject to registration
under the RCNL by virtue of his rape conviction, his 1987
attempted criminal restraint conviction as well as his past
lewdness convictions play a different, yet important, role in
assessing registrant's risk of re-offense. Consideration of past
crimes of a sexual nature is crucial to understanding a
registrant's propensity to use force or target children, as well
as understanding the registrant's duration of offensive behavior,
number of victims, and length of time since his last offense.
That information that aids in the assessment and design of the
proper scope of notification is abundantly relevant to the
protection of the public.
Thus, it was entirely reasonable for the Attorney General
and his experts to determine that sexual offenses in a
registrant's past require assessment through the prism of the
seven factors that examine past criminal history from several
aspects, such as degrees of force, contact, age of victim, victim
selection, and length of time since last offense. The one factor
focusing on anti-social acts does not, as fully, examine a past
sexual offense episode.
Registrant's several lewdness offenses also deserve similar
examination to discern their appropriate value when assessing his
risk of re-offense. N.J.S.A. 2C:14-4c provides that “'lewd acts'
shall include the exposing of genitals for the purpose of
arousing or gratifying the sexual desire of the actor or any
other person.” A failure to consider those offenses under the
seven “criminal history” factors undermines the evaluation of his
compulsion, repetitiveness, and victim choice to determine the
scope of notification that should be provided. Fundamentally, it
would thwart the remedial objective of Megan's Law not to
evaluate those offenses under the more complete analysis of the
criminal history factors of the RRAS, as it was designed to do.
Doe v. Poritz, supra, 142 N.J. at 13; N.J.S.A. 2C:7-1.
Accordingly, we conclude that the RCNL does not prohibit the
Attorney General from concluding that nonregistrable sexual
offenses are best evaluated on the RRAS under the criminal
history factors of numbers one through seven. Such past criminal
conduct need not be restricted to the single factor of “anti-
social acts.”
The assessment of registrant's risk of re-offense was flawed by the lower courts' disallowance of consideration of his 1987 conviction for attempted criminal restraint and his three lewdness offenses under criminal history factors one through seven, and therefore the matter must be remanded. Because there is a factual dispute concerning the lewdness offenses, the court also will have to address whether the State can satisfy its burden of proof under In re C.A., supra, when considering those offenses. The matter is reversed and remanded for further proceedings consistent with this opinion.
JUSTICES STEIN, COLEMAN, LONG, and ZAZZALI join in JUSTICE LaVECCHIA's opinion. CHIEF JUSTICE PORITZ and JUSTICE VERNIERO did not participate. APPENDIX A
REGISTRANT RISK ASSESSMENT SCALE
Force no physical force;
no threats threats; minor physical force
violent; use of weapon; significant victim harm 2. Degree of
Contact no contact; fondling over clothing fondling under clothing penetration 3. Age of victim 18 or over 13-17 under 13
Selection household/family member acquaintance stranger 5. Number of
Offenses/
Victims first known offense/victim two known offenses/victims three or more offenses/victims 6. Duration of
Offensive
Behavious less than 1 year 1 to 2 years over 2 years 7. Length of
Time Since
Last Offense 5 or more years more than 1 but less than 5 years 1 year or less 8. History of
Anti-Social
Acts no history limited history extensive history Subtotal: Characteristics of Offender x2 9. Response to
Treatment good progress limited progress prior unsuccessful treatment or no progress in current treatment 10. Substance
Abuse no history of abuse in remission not in remission Subtotal: Community Support x1 11. Therapeutic
Support current/ continued involvement in therapy intermittent no involvement 12. Residential
Support supportive/ supervised setting; appropriate location stable and appropriate location but no external support system problematic location and/or unstable; isolated 13. Employment/
Educational
Stability stable and appropriate intermittent but appropriate inappropriate or none Subtotal: Total:
Scoring: Highest possible total score = 111
Low Range: 0-36 Moderate Range: 37-73 High Range: 74-111
NO. A-142 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF
REGISTRANT J.M.
____________________
DECIDED March 28, 2001
Justice Stein PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY
DISSENTING OPINION BY