In re Commitment of WZ

• Court: New Jersey Supreme Court
• Citation: 801 A.2d 205,173 NJ 109
• Parties: In the Matter of the COMMITMENT OF W.Z.
• Decision Date: 11 July 2002

801 A.2d 205
173 NJ 109

In the Matter of the COMMITMENT OF W.Z

Supreme Court of New Jersey.

Argued January 28, 2002.

Decided July 11, 2002.

801 A.2d 206

Joan D. Van Pelt, Assistant Deputy Public Defender, argued the cause for appellant W.Z. (Peter A. Garcia, Acting Public Defender, attorney)

Nancy Kaplen, Assistant Attorney General, argued the cause for respondent State of New Jersey (Peter C. Harvey, Acting Attorney General, attorney; Mary Beth Wood, Deputy Attorney General, on the briefs).

The opinion of the Court was delivered by LaVECCHIA, J.

In 1998 the Legislature passed the New Jersey Sexually Violent Predator Act (SVPA or Act), N.J.S.A. 30:4-27.24 to 27.38; L. 1998, c. 71, effective August 12, 1999. We are informed that since its enactment the State has used the Act to civilly commit approximately 225 sex offenders. This appeal presents our first

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opportunity to consider a challenge to the Act's constitutionality

W.Z. appeals from a judgment finding him to be a sexually violent predator under the SVPA and committing him to the Special Offenders Unit at the Northern Regional Unit (NRU) in Kearny, New Jersey. In its decision below, the Appellate Division rejected W.Z.'s constitutional and other challenges and upheld W.Z.'s commitment. While W.Z.'s appeal to this Court was pending, the United States Supreme Court issued its decision in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). In that case the Court clarified the substantive due process limitations on a state's ability to identify the mental abnormalities that render a sex offender eligible for civil commitment because of his or her dangerousness. Specifically, Crane held that a state may not civilly commit a sex offender without making a determination about the person's "lack of control" over his or her sexually violent behavior. Id. at___, 122 S.Ct. at 870, 151 L.Ed.2d at 862. In so holding, the Court rejected the claim that a sex offender's lack of control must be demonstrated to be total or complete; rather, the Court acknowledged a state's authority to commit those sex offenders who have "serious difficulty in controlling [their] behavior." Ibid.

The substantive due process limitations expressed in Crane inform our consideration of this challenge to the constitutionality of the SVPA.

I.

The facts of W.Z.'s extensive criminal and juvenile record and the expert testimony adduced at his commitment hearing were detailed in the Appellate Division's opinion, IMO Commitment of W.Z., 339 N.J.Super. 549, 556-61, 773 A.2d 97 (App. Div.2001), and are incorporated as if fully set forth herein. We recite only a summary.

Three of W.Z.'s offenses were of a sexual nature and were committed against women. Those are aggravated assault and criminal sexual contact committed in 1982 when W.Z. was 16 years old; aggravated sexual assault, aggravated assault, criminal restraint, and terroristic threats arising from W.Z.'s attempted rape of a woman he met at a bar in 1989; and criminal sexual contact of a woman he accosted in 1994. The parties do not dispute that, based on that criminal record, W.Z. has been convicted of a "sexually violent offense" required as a predicate for civil commitment under the SVPA. N.J.S.A. 30:4-27.26.

Over a period of years, numerous clinicians have evaluated W.Z. to determine whether he poses a threat of committing additional sexual offenses. In 1991, following his first conviction for aggravated sexual assault, W.Z. was evaluated by Dr. Kenneth McNiel at the Adult Diagnostic Treatment Center (ADTC) in Avenel for the purpose of determining his eligibility for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (requiring diagnosis of repetitive and compulsive sexual behavior). That evaluation diagnosed W.Z. as suffering from an antisocial personality disorder with narcissistic features. Dr. McNiel noted concerns about W.Z.'s interpersonal explosiveness, self-indulgence, violent potential, and anger towards women, but opined that the 1989 sexual assault was more an act of antisocial violence and impulsive exploitation than of sexual compulsivity. Therefore, W.Z. was determined to be not eligible for sentencing under the Sex Offender Act.

The State initiated the present commitment proceeding in December 1999 when W.Z. was approaching the expiration of his

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sentence for the 1994 criminal sexual contact conviction. The petition for civil commitment was supported by clinical certificates prepared by Leonard B. Archer, M.D., and James R. Varrell, M.D. Each certified that W.Z. was a person "suffer[ing] from a mental abnormality (as defined by the Act) or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment." Based on the petition and accompanying certifications, the trial court found reasonable cause to commit W.Z. temporarily to the NRU pending a final hearing

At the final hearing conducted in April 2000, the State presented the testimony of Dr. Jackson T. Bosley, a psychologist at the NRU, and Dr. Stanley R. Kern, a NRU psychiatrist. Dr. Anthony V. D'Urso, a licensed clinical psychologist and professor of graduate psychology at Montclair State University, testified on behalf of W.Z. As noted by the Appellate Division, the testimony of the experts "was surprisingly consistent and raised few issues of fact." IMO of Commitment of W.Z., supra, 339 N.J.Super. at 559, 773 A.2d 97.

Dr. Bosley evaluated W.Z. at the time that the petition for commitment was filed in December 1999. His report stated that W.Z. poses a risk as a violent predator, and that W.Z.'s past behavior indicates that he "can use sexuality as a weapon in his criminal acts." At the hearing, Dr. Bosley testified that he performed the Minnesota Sex Offender Screening Tool Revised (MnSOST-R), the California Actuarial Risk Assessment Table (CARAT), the Adult Sex Offender Risk Assessment Schedule (ASORAS), the Static-99, and the Registrant Risk Assessment Scale (RRAS) on W.Z. and found that all but one of the actuarial tools placed W.Z. within a high range of risk of sexually recidivating. The RRAS placed W.Z. within the moderate risk range. Based on the tests used during his evaluation of W.Z., and the lack of discrepancy in their results, Dr. Bosley opined that W.Z. posed a high to moderate risk to recidivate. In respect of W.Z.'s volitional control over his acts, Dr. Bosley opined that W.Z. did not possess sufficient internal controls to curb his antisocial behavior and expressed concern that if he were to be released from a structured and supervised environment, W.Z. would pose a high or moderate risk of committing another sexual offense.

Dr. Kern likewise issued a report on his evaluation of W.Z. and testified at the hearing. He stated that W.Z. suffers from intermittent explosive disorder, antisocial personality disorder with narcissistic tendencies, and alcohol abuse. Dr. Kern explained that antisocial personality disorder is "characterized by inability to behave to control one's behavior" and that "if that includes sexual acting out, that will include sexual acting out." In Dr. Kern's opinion, W.Z.'s mental disorders affect his emotional and volitional functions, causing him to behave in an antisocial fashion and to pose a danger to society, particularly in a sexual way. Dr. Kern recommended that W.Z. remain at the NRU because he presents a danger to society. In his testimony, and in his written report, Dr. Kern conceded that W.Z.'s compulsive behavior is part of his general criminal behavior, that W.Z. does not have a sexual compulsion, and that although he retains the ability to exert volitional control over his sexual behavior, he does not exercise that control.

W.Z. presented testimony by Dr. D'Urso, who had evaluated W.Z. in February 2000. In his report of that evaluation, Dr. D'Urso diagnosed W.Z. with antisocial personality disorder, substance abuse, and intermittent explosive personality disorder. Dr. D'Urso found that W.Z.'s sexual behavior was more "situational" than compulsive,

801 A.2d 209

and that although W.Z. has a propensity to commit antisocial crimes his criminal history does not reflect a pattern of compulsive sexual conduct. At the civil commitment hearing, Dr. D'Urso testified that W.Z. tends to minimize his prior offenses and is highly impulsive, immature, and hedonistic. Dr. D'Urso also stated that W.Z. does not maintain intimate relationships with people, demonstrates little remorse, and exhibits poor insight into his own behavior. Dr. D'Urso opined that W.Z.'s three sexual offenses "appear to be related to [W.Z.'s] general pattern of antisocial behavior and the violence and aggression he demonstrates against people when he's angry, frustrated." He added that the offenses "also appear to be related to intoxication and severe alcohol abuse." Dr. D'Urso further stated that notwithstanding that W.Z. retains volitional control over his acts, he suffers from an antisocial personality disorder that causes him to ignore the rights of others. Based on the repetitive nature of W.Z.'s criminal offenses, Dr. D'Urso concluded that W.Z. possesses a "great likelihood" of future violent behavior, and that he would anticipate that twenty percent of W.Z.'s future violent behavior would involve acts of sexual violence.

At the commitment hearing W.Z. argued that he did not fall within the purview of the SVPA because he was not diagnosed as suffering from a sexual compulsion or a paraphilia. He also argued that to commit an individual under the SVPA the State must prove that a sex offender has an inability to control dangerous sexual behavior within the reasonably foreseeable future.

The trial court concluded that the SVPA requires a finding that the person is unable to control dangerous sexual behavior and that the risk of sexual recidivism must be reasonably foreseeable. However,...