New York Times
January 28, 2002
New Jersey to Rule on Keeping Sex Offenders Locked Up After Prison Release
By LAURA MANSNERUS
New Jersey's highest court is to hear a case this morning that is expected to determine which of the state's convicted sex offenders may be involuntarily institutionalized after completing their prison terms.
The case, an appeal of an involuntary commitment by a violent felon whose most recent sentence was for a sex offense, will be particularly closely watched as a result of a ruling last week by the United States Supreme Court. In that case, which involved a similar challenge by a Kansas sex offender, the justices held that the state must prove that a sex offender has "serious difficulty in controlling behavior" before a civil commitment can occur.
It is not clear what effect the Supreme Court decision will have on New Jersey, one of 18 states with "sexually violent predator laws" authorizing the civil commitment of sex offenders upon their release from prison. Like most of those laws, New Jersey's permits the institutionalization of sex offenders who have "a mental abnormality" that makes them likely to commit additional sex crimes.
Lawyers for many of the state's 194 civilly committed sex offenders say that most, if not all, are entitled to new hearings on the basis of last week's Supreme Court decision.
"The immediate impact should be a review of every commitment which has taken place over the last two years," said John S. Furlong, a lawyer who represents several men in the state's two institutions for such offenders, in Kearny and Avenel.
The state's position, said Chuck Davis, a spokesman for Attorney General David Samson, is that New Jersey's application of its violent sexual predator law has been consistent with the Supreme Court decision, and that there is no need for the state to review its sex offender commitment cases.
The case to be heard today by the New Jersey Supreme Court is an appeal by a man identified in court papers only as W. Z., who in 1999 completed a five-year prison sentence for accosting a woman at a train station, lifting her skirt and grabbing her buttocks.
The court will decide whether the state showed that W. Z. had "serious difficulty" controlling his behavior when it ordered him institutionalized after he completed his prison sentence. Its decision is also likely to determine the fate of many of the other civilly committed sex offenders, all of whom are men.
The court could, on the basis of New Jersey's Constitution, set an even higher commitment standard for the state to meet than the Supreme Court did in the Kansas case.
At the least, the New Jersey court could help determine the legal answers to questions that border on the metaphysical: What does it mean to be able to control one's behavior? And what degree of lack of self- control warrants confining someone to an institution?
W. Z. argues that he should not have been civilly committed because he can control his sexual impulses, he simply has chosen not to — an argument that, paradoxically, relies on his history of other violent crimes.
Neither the attorney general's office nor the New Jersey public defender's office, which is representing W. Z., would comment on the case, and the court record, including the briefs, is sealed. But the decision by a lower appellate court that upheld W. Z.'s commitment gave this account:
Now 35, he was first arrested at age 12 and has been convicted of offenses including aggravated assault, burglary, receiving stolen property, terroristic threats, resisting arrest and attempted rape. He served two sentences for violent attacks on women before he was arrested for the buttocks-grabbing incident. He said he was drunk at the time and had no recollection of the incident. When he was due to be released, W. Z. was committed under the sexual predator law, which had been in effect only a few months, after a hearing before a State Superior Court judge.
W. Z. conceded that he has trouble controlling his anger, and that he has had diagnoses of, among other things, "intermittent explosive disorder." But he argued that to commit him, the state had to show that he was totally unable to control his behavior — an argument that the United States Supreme Court also was considering in Kansas v. Crane, the case it decided last week.
The justices rejected that argument, noting that "most severely ill people — even those commonly termed `psychopaths' — retain some ability to control their behavior." The 7-to-2 decision made clear, though, that unless the state could prove that an offender was unable to some degree to control his behavior, extended detention would amount to little more than a second, indefinite prison sentence.
The decision largely left it to the states to determine what constitutes "serious difficulty." The justices did not order Michael T. Crane released, but sent the case back to Kansas for further proceedings.
New Jersey has an especially stringent sexual predator law and petitions to detain a larger percentage of sex offenders after their prison sentences than most states. Since the law took effect in 1999, the state has petitioned to commit about 230 inmates, and only a few of those petitions have been denied.
Because New Jersey keeps no public records about civil commitments, it is hard to know who has been committed or why. Lawyers for those offenders say their clients include the brain damaged and the highly rational, simple exhibitionists and violent rapists.
"The way New Jersey has been operating until now is fairly standardless," said Stephen A. Latimer, who represents another sex offender.
In other states that have such laws (New York and Connecticut do not), prosecutors said they did not expect the Crane decision to result in the release of many offenders.
Kelly Collins, the chief of the bureau that tries such cases for the attorney general in Illinois, said that "people are reacting strongly" to the Supreme Court ruling but that very few of those in custody in Illinois stood much chance of release because the state civilly commits only the most seriously disturbed offenders.
"We really do just go for the worst of the worst," Ms. Collins said.
Still, she said, her office had received "a few" motions for rehearings since the Crane decision was handed down last Tuesday.
In Washington, the first state to enact a civil commitment law for sex offenders, prosecutors are concerned that they might have to retry most of the 160 people now detained, said David J. W. Hackett, senior deputy prosecutor in Seattle. He said the State Supreme Court would probably have to decide what level of review is required.
Michael Lackey, a lawyer in Washington, D.C., who wrote a friend-of- the-court brief in Kansas v. Crane on behalf of the Association for the Treatment of Sexual Abusers, said the ruling might make it harder to commit some of the most violent criminals, while more-disturbed but less-threatening people could be detained.
Mr. Lackey praised the ruling, noting that the purpose of sexual commitment laws is not to punish sex offenders further — only the criminal courts can do that — but to treat them.
"There's no sexually violent predator lobby out there," he said. "If some politician were to say, `Next pedophile gets life in prison,' who would stop that? You could argue that this is a more humane solution."
Copyright © 2002, New York Times Company. All rights reserved.
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