Waterman v. Verniero, Civ.A. 98-1398.

• Decision Date: 22 July 1998
• Docket Number: No. Civ.A. 98-1398.,Civ.A. 98-1398.
• Citation: 12 F.Supp.2d 378
• Parties: Richard WATERMAN, et al., Plaintiffs, v. Peter VERNIERO, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

12 F.Supp.2d 378

Richard WATERMAN, et al., Plaintiffs, v. Peter VERNIERO, et al., Defendants.

No. Civ.A. 98-1398.

United States District Court, D. New Jersey.

July 22, 1998.

Lawrence S. Lustberg, Mark A. Berman, Laura K. Abel, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, for Plaintiffs.

Ronald L. Bollheimer, Deputy Attorney General, Trenton, NJ, for Defendants.

OPINION

WOLIN, District Judge.

On June 29, 1998, the Court preliminarily enjoined New Jersey from enforcing N.J.S.A. 2C:47-10, which prohibits inmates at the Adult Diagnostic and Treatment Center ("ADTC") from possessing or obtaining "sexually oriented materials," because Richard Waterman and Michael Curtis ("plaintiffs"), who are inmates at the ADTC, had shown that they were likely to succeed on the merits, that they would suffer irreparable harm if the Court did not issue the injunction, that New Jersey would not be injured if the Court issued the injunction, and that the public interest weighed in favor of plaintiffs. The Court must now determine whether N.J.S.A. 2C:47-10 is constitutionally infirm.

The Court reiterates that it is sensitive to society's concern and interest in defending against and punishing sex offenders. Moreover, the Court is cognizant of the public outrage that the preliminary injunction created. The Court's disapprobation of this statute, however, flows from its duty to uphold the Constitution, which protects all citizens, including convicted felons. History teaches that when society stands idly by as the state violates the rights of one segment of the body politic, the rights of others will eventually be diminished. The flashback of Pastor Martin Niemueller, a Protestant anti-Nazi who was imprisoned in a concentration camp during the war, exemplifies the currency of this principle:

First they came for the Socialists and I did not speak out because I was not a Socialist; Then they came for the trade unionists and I did not speak out because I was not a trade unionist;

Then they came for the Jews and I did not speak out because I was not a Jew;

Then they came for me and there was no one left to speak for me.¹

If this statute is worthy of retention and serves a valid penological interest, then the New Jersey Legislature has the duty to enact it so that it comports with the Constitution.

The Court will permanently enjoin New Jersey from enforcing N.J.S.A. 2C:47-10 because New Jersey has not overcome the insurmountable burdens discussed in the Court's initial Opinion. Furthermore, the Court has determined that plaintiffs' experts' opinion that psychologists should assess the effect of sexually oriented materials on the treatment of the inmates at the ADTC on a case-by-case basis is a more reasonable approach for dealing with the materials than is N.J.S.A. 2C:47-10.

I. Standard for Permanent Injunction

Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, district courts are permitted to consolidate a hearing for a preliminary injunction with the trial on the merits. In this case, New Jersey and plaintiffs have informed the Court that they are willing to rely on their written submissions and that a trial is unnecessary for the adjudication of this case. Thus, according to the parties' decision to forego a trial and Rule 78 of the Federal Rules of Civil Procedure, this Court will decide this case without a trial or oral arguments.

For the Court to issue a permanent injunction, plaintiffs must: (1) succeed on the merits, (2) establish that they will be irreparably injured if the Court does not issue the injunction, (3) show that the issuance of the permanent injunction will not cause greater harm to the defendant, and (4) demonstrate that the injunction is in the public interest. SeeCIBA-GEIGY Corp. v. Bolar Pharm. Co., Inc., 747 F.2d 844, 850 (3d Cir.1984) ("In deciding whether a permanent injunction should be issued, the court must determine if the plaintiff has actually succeeded on the merits (i.e. met its burden of proof). If so, the court must then consider the appropriate remedy.").

At the outset, the Court notes that it will not revisit the facts or all of the arguments and issues raised in its initial Opinion because this Opinion serves as a supplement to the earlier Opinion.

II. Legal Analysis

A. Success on the Merits

1. Overbreadth and Vagueness

In the initial Opinion, the Court stated that "New Jersey's burden on [overbreadth and vagueness] appears to be insurmountable given the Court's analysis and the static nature of N.J.S.A. 2C:47-10's language." New Jersey has not done anything to persuade the Court that its discussion on the overbreadth and vagueness of N.J.S.A. 2C:47-10 was incorrect or should be changed. As currently written, N.J.S.A. 2C:47-10 sweeps far too broadly because it prohibits plaintiffs from reading the Bible, fashion magazines, books, legal documents, and sections of newspapers. In addition, the statute is vague because it fails to define "associated anatomical area." That phrase indicates that the statute bans the inmates from possessing or obtaining materials describing or depicting sexual activities from kissing to intercourse. Thus, the Court finds that N.J.S.A. 2C:47-10 is unconstitutional because it violates the principles of overbreadth and vagueness.

2. Penological Interest

To establish a reasonable relationship, a state must have a "valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it. Thus, a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254, 2262, 96 L.Ed.2d 64 (1987). Although the Court need not address whether New Jersey had a valid penological interest when it passed N.J.S.A. 2C:47-10, it will briefly discuss the issue because the parties have hotly contested the issue and because the Court's analysis may aid the New Jersey Legislature if they decide to rewrite the statute.

As stated in the prior Opinion, New Jersey contends that sexually oriented materials will disrupt its treatment of the sex offenders at the ADTC. Thus, New Jersey argues that rehabilitating sex offenders is a valid penological interest. Plaintiffs vehemently counter that New Jersey does not have a legitimate penological interest because sexually oriented materials may aid their treatment by helping them refocus their deviant sexual desires to normal sexual wants.

New Jersey did not have a valid penological interest when it enacted N.J.S.A. 2C:47-10 because rehabilitation does not appear to be the true reason why the New Jersey Legislature passed N.J.S.A. 2C:47-10. The legislative history does not mention rehabilitation, and Dr. Nancy Graffin, the Director of Psychology at the ADTC, did not testify before either the Assembly or Senate, and learned about the statute after it was enacted. Most importantly, the Department of Corrections formally opposed the statute before Governor Whitman signed it because the Department believed that adult pornography for inmates at the ADTC was a step in the right direction. Thus, the true reason for the enactment of N.J.S.A. 2C:47-10 appears to be public outrage over some of the heinous, pedophiliac crimes that occurred in New Jersey.

Moreover, although the Court recognizes that rehabilitation is a valid penological interest, no rational relationship exists between N.J.S.A. 2C:47-10 and rehabilitation. The experts in this case disagree on the effect that the materials will have on the treatment of the inmates at the ADTC. For the reasons stated infra, the Court finds that plaintiffs' experts are more convincing.

New Jersey's experts include the current Director of Psychology at the ADTC, Dr. Graffin, and a psychologist who works with sex offenders in Philadelphia, Dr. Timothy Foley. Graffin opines that sexually oriented materials hinder the treatment of the inmates at the ADTC because they will interfere with the concept of victim empathy and the sex offenders' understanding of deviant sexual behavior. She adds that the materials will lead inmates to "normalize the objectification of others," which is contrary to the treatment the ADTC espouses. Foley asserts that empirical studies show that sexually oriented materials advance sexual offenders' masturbatory fantasies,...