In Re the Civil Commitment of W.X.C., SVP 458-07

Justice ALBIN,

dissenting.

Today, the majority holds that the State can both deny treatment to a prison inmate who suffers from “a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence,” N.J.S.A. 30:4-27.26, and then use the inmate’s failure to receive such treatment as the basis for his civil *206 commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. Denying an inmate treatment for a mental abnormality or personality disorder and then, when he is about to be released after serving his sentence, justifying his civil commitment because of a lack of treatment is not a rational public policy but a charade that violates fundamental rights guaranteed under both the United States and New Jersey Constitutions.

Nevertheless, I would not grant W.X.C. the relief he seeks—his freedom—because his release would present an immediate danger to the public, even if his status as an unrehabilitated sex offender can be laid at the feet of the State. 1 Although the public should not suffer because the State has ignored the rights of this former inmate, this unconstitutional scheme should not be allowed to continue. Going forward, when the State knows or has a reasonable belief that one of its inmates is suffering from a mental abnormality or personality disorder that will likely render him subject to civil commitment under the Sexually Violent Predator Act, in my view, our federal and state constitutions mandate that the State treat or attempt to treat the inmate before initiating civil-commitment proceedings.

I therefore respectfully dissent.

I.

In 1993, W.X.C., then twenty-five years old, pled guilty to committing violent sexual crimes and related crimes against three women on three separate occasions. Among the crimes to which W.X.C. pled guilty were two aggravated sexual assaults, an attempted aggravated sexual assault, kidnapping, two armed robberies, and several burglaries. At the time he entered guilty pleas to those crimes, W.X.C. told the court: “I realize I have a debt to pay back to society for what I have done ... and it is *207 obvious from the crimes that it is repetitive and compulsive, I’m asking I want to be rehabilitated____I want treatment. I don’t want to be released until I am rehabilitated.” The court advised W.X.C. that he first would have to be evaluated to determine whether he was eligible for a sentence to the Adult Diagnostic and Treatment Center (ADTC) at Avenel. At the time, under the Sex Offender Act, if a psychological examination of “the offender’s conduct was characterized by a pattern of repetitive, compulsive behavior,” then the court, “upon the recommendation of the [ADTC],” had the discretion to sentence the offender to the ADTC “for a program of specialized treatment for his mental condition----” N.J.S.A. 2C:47-3(a) (1979) (current version at N.J.S.A 2C:47-3(a)). Any sentence to the ADTC still had to comport with the sentencing provisions of the Code of Criminal Justice. N.J.S.A. 2C:47-3(b) (1979) (current version at N.J.S.A. 2C:47-3(c)). 2

Dr. Mark Frank, the psychologist who evaluated W.X.C. for the Department of Corrections, determined that W.X.C. was a repetitive offender. Dr. Frank, however, believed that W.X.C.’s case presented “diagnostic difficulties” in determining whether his conduct could be deemed “compulsive.” On the one hand, W.X.C.’s sexual misconduct could be considered “motivated by a deviant sexual arousal pattern that reflects repetitive, compulsive sexual pathology.” On the other hand, W.X.C.’s offenses could “be best understood within the broader context of [his] overall antisocial orientation with concomitant hedonistic and exploitive tenden *208 eies.” 3 Because in Dr. Frank’s mind the “preponderance of the evidence” favored the second hypothesis, he ruled W.X.C. ineligible for treatment at the ADTC, although he recommended psychotherapy given “the serious nature of these offenses.”

At sentencing, in 1994, W.X.C. and his attorney asked the court to sentence him to the ADTC for sex-offender treatment. Because of Dr. Frank’s report, W.X.C. was not eligible for such treatment, and the court sentenced him instead to serve a state-prison term of twenty-four years with twelve years of parole ineligibility. From 1994 through July 2007, W.X.C. remained in the custody of the Department of Corrections and received no sex-offender specific treatment.

In 1998, the Legislature enacted the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, “in recognition of the need for commitment of those sexually violent predators who pose a danger to others should they be returned to society.” N.J.S.A. 30:4-27.25(c). To involuntarily commit an offender under the SVPA, the State must prove by clear and convincing evidence that the offender is a “sexually violent predator.” N.J.S.A 30:4-27.32(a). A sexually violent predator is defined as a “person who has been convicted ... of a sexually violent offense ... and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment.” N.J.S.A. 30:4-27.26.

From 1995 to 2007, W.X.C., while in prison, attended a variety of treatment programs, including alcoholics anonymous, narcotics anonymous, substance abuse counseling, twelve-step relapse prevention counseling, anger management, encounter and peer group *209 counseling, and behavior modification counseling. He also participated in employment training in business management, culinary arts, and furniture building. He had no record of institutional infractions during twelve years of incarceration in state prison. However, W.X.C. was not offered sex-offender specific therapy.

About two years before his scheduled release from prison, W.X.C. was evaluated for civil commitment under the SVPA. In September 2005, Dr. Frank, the same psychologist who found W.X.C. ineligible for sex-offender treatment in 1994, interviewed and evaluated W.X.C. again. Dr. Frank recommended that the Attorney General review W.X.C.’s case for civil commitment under the SVPA. Dr. Frank found that W.X.C. “does not appear to have had any appreciable sex-offender specific psychotherapy guided by a treatment specialist.” In addition, Dr. Frank reported:

[W.X.C.] has apparently yet to work intensively in sex offender specific psychotherapy in either a group or individual modality. Clearly, this type of treatment is indicated, as is continued treatment for substance abuse. If [W.X.C.] is paroled, extremely close supervision and monitoring for substance abuse is recommended, along with mandated sex offender specific psychotherapy.

Still, the Department of Corrections offered W.X.C. no specific sex-offender treatment that might mitigate the need for his civil commitment.

In March 2007, Dr. Wayne Blodgett, a psychologist who interviewed and evaluated W.X.C. in prison, came to the following conclusion: “Clinical and actuarial findings indicated this inmate does meet the criteria as a Sexually Violent Predator who requires formal treatment before being released to the community. Hence this inmate should be referred to the NJ Attorney General’s office for consideration of commitment under” the SVPA. 4

On April 22, 2007, Dr. Neal Brandoff, a psychiatrist employed by the University of Medicine and Dentistry, examined and evaluated W.X.C. at Riverfront State Prison. In support of the State’s *210 petition for involuntary commitment, Dr. Brandoff wrote: “[W.X.C.] had no sex offender specific therapy, saying none was recommended nor available; he studied what written materials he could obtain on his own about sex offending.”

On April 24, 2007, the day W.X.C. was scheduled to be released from prison, a Superior Court judge granted the State’s petition to temporarily commit him to the Special Treatment Unit (STU). On May 17, 2007, in anticipation of the commitment hearing, Dr. Evan Feibusch, on behalf of the State, evaluated W.X.C.’s case, concluding that WXC.’s risk of recidivism was high and that he had “not moderated his risk through treatment. He has not had treatment for his sexually inappropriate behavior.”

Several months later, another Superior Court judge conducted a commitment hearing pursuant to the SVPA. Based on the testimonies of Dr. Feibusch, a staff psychiatrist at the STU (Woodbridge), and Dr. Brian Freidman, a staff clinical psychologist at the STU (Kearney), the judge concluded that W.X.C. is a sexually violent predator who “suffers from abnormal mental conditions and personality disorders” that make it “highly likely that [W.X.C.] will commit sexually violent offenses in the foreseeable future if he is not committed for care and for the protection of the public.”

II.

The justification for the civil commitment of W.X.C. rested, to a great degree, on the sexually violent acts he committed fifteen years earlier and the failure to receive sex-offender specific treatment while in prison. The State should have known at the time of W.X.C.’s sentencing that he was in need of sex-offender specific treatment if he were to successfully transition back to society upon his release from prison. Certainly, the State should have known as much when the SVPA was passed in 1998. Twenty-two months before W.X.C.’s scheduled release, the State unquestionably knew W.X.C. was in need of sex-offender treatment. That is so because the very tests to determine if a person is suitable for civil commitment demonstrated the need for treatment. Almost *211 every evaluation confirmed that W.X.C. was dangerous without sex-offender specific treatment. Yet he received no treatment.

At issue here is not the constitutionality of a civil-commitment statute, such as the Sexually Violent Predator Act, that serves the non-penal objective of institutionalizing sexually violent predators for the purpose of treating their mental abnormalities and personality disorders with the objective of making it likely that they will not re-offend. Rather, the issue is about a larger scheme—the intersection of our penal and civil-commitment systems—that allows the State to deny an inmate, over whom it has total control, treatment for a mental abnormality that will later be the basis for the State’s justification to civilly commit him.

The constitutionality of a civil-commitment statute, such as the SVPA, requires that the state offer treatment to those who are willing to receive and benefit from it. See Kansas v. Hendricks, 521 U.S. 346, 367-69 , 117 S.Ct. 2072, 2084-85 , 138 L.Ed.2d 501, 518-19 (1997) (Thomas, J., plurality opinion) (noting that treatment must be one purpose of valid civil-commitment statute so as not to run afoul of ex post facto clause); see also id. at 371-72 , 117 S.Ct. at 2087 , 138 L.Ed.2d at 521 (Kennedy, J., concurring) (noting that provision for treatment in civil-commitment statute may not be “sham or mere pretext” to conceal “forbidden purpose to punish”). It is understood that some, if not many, sexually violent predators may be untreatable and that even the state’s best efforts will not be sufficient to allow their release into society. Nonetheless, treatment must be offered to those who are treatable.

New Jersey’s SVPA is non-penal in nature and does not offend the substantive due process provisions of the federal and state constitutions because the Act provides for treatment of sexually violent predators. See In re Commitment of W.Z., 173 N.J. 109, 133-34 , 801 A.2d 205 (2002). The SVPA declares that “[cjertain individuals who commit sex offenses suffer from mental abnormalities or personality disorders which make them likely to engage in repeat acts of predatory sexual violence if not treated for *212 their mental conditions.” N.J.S.A, 30:4-27.25(a) (emphasis added). The SVPA specifically provides that “[t]he Department of Corrections shall be responsible for the operation of any facility designated for the custody, care and treatment of sexually violent predators ____” N.J.S.A. 30:4-27.34(a) (emphasis added). The Department of Human Services is required to “provide or arrange for treatment for a [sexually violent predator] committed” under the SVPA, and that treatment must “be appropriately tailored to address the specific needs of’ that person. N.J.S.A, 30:4-27.34(b). Treatment of the offender lies at the very core of the SVPA.

The State, which confined W.X.C. in prison for more than twelve years without providing him with sex-offender specific treatment, now is responsible for providing him the very “care and treatment” it denied him—treatment that may have made his civil commitment less likely. Because the State determined during WXC.’s imprisonment that he would be subject to civil commitment under the SVPA and because the State had complete control over every aspect of his life, it had the obligation to provide him with sex-offender specific treatment directed at his “mental abnormality or personality disorder.” That obligation arises from the State’s special relationship with those who are stripped of their freedom and confined in custodial institutions, and who therefore cannot obtain treatment for themselves.

In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989), the United States Supreme Court held:

[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.

[Id. at 200, 109 S.Ct. at 1005-06 , 103 L.Ed.2d at 261-62 (emphasis added) (internal citations omitted).]

*213 As noted in DeShaney , the State’s affirmative duty to a prisoner is, in part, grounded in the Eighth Amendment’s prohibition against cruel and unusual punishment. U.S. Const. amend. VIII; see Estelle v. Gamble, 429 U.S. 97, 104-05 , 97 S.Ct. 285, 291 , 50 L.Ed.2d 251, 260 (1976) (holding that Eighth Amendment prohibits State from acting with deliberate indifference to serious medical need of inmate). 5 “[H]aving stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials” are under a constitutional obligation to “ensure that [they] receive adequate clothing, shelter and medical care....” Farmer v. Brennan, 511 U.S. 825, 832-33 , 114 S.Ct. 1970, 1976-77 , 128 L.Ed.2d 811, 822-23 (1994). Clearly, an inmate suffering from a “mental abnormality or personality disorder” that renders him a sexually violent predator and subject to civil commitment is in need of “medical care.”

Although generally the State may not be obliged to provide sex-offender specific therapy to those imprisoned, the deprivation of treatment takes on constitutional significance when it is used to civilly commit a person. Surely, the withholding of treatment may be considered “sufficiently serious” when it “result[s] in the denial of the minimal civilized measure of life’s necessities”—the ability of a convicted person to be released after serving his prison sentence. See id. at 834 , 114 S.Ct. at 1977 , 128 L.Ed.2d at 823 (internal citations and quotation marks omitted); see also In re Commitment of J.M.B., 197 N.J. 563, 598 , 964 A.2d 752 (2009) (“[W]hen addressing application of the SVPA, we have emphasized that [c]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”) (internal citations and quotation marks omitted); cf. Youngberg v. Romeo, 457 U.S. 307, 317-18 , 102 S.Ct. 2452, 2459 , 73 L.Ed.2d 28, *214 37-38 (1982) (stating that because “there is a constitutionally protected liberty interest in safety and freedom from restraint, training may be necessary to avoid unconstitutional infringement of those rights” possessed by involuntarily committed, mentally retarded patients).

Here, the State maintained physical custody of and control over W.X.C. as an inmate. In prison, W.X.C. did not have access to an appropriate therapeutic program to treat sex offenders unless the State provided it to him. 6 In denying him appropriate treatment, the State maximized the likelihood that W.X.C., upon his release from prison, would be deprived of his freedom on the ground that he was an untreated sexually violent predator. 7 The irony is that the Department of Corrections controlled every aspect of W.X.C.’s life while he was imprisoned for twelve years and now it is responsible for the operation of the facility designated for W.X.C.’s “custody, care and treatment” as a sexually violent predator. See N.J.S.A. 30:4-27.34(a). This bizarre scheme of denying an imprisoned inmate treatment for a mental abnormality or personality disorder and then committing him as an untreated sexually violent predator cannot be justified under either the federal or state constitution.

*215 III.

I cannot agree with the majority that “the Sex Offender Act and the SVPA represent a carefully constructed framework for maximizing the goals of both treatment and punishment....” Ante at 200, 8 A.3d at 186. Rather, as Justice Holmes once famously said, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 , 41 S.Ct. 506, 507 , 65 L.Ed. 963, 983 (1921). It is the historical development of our law that best elucidates the asymmetrical approach to treatment of inmates. Logic does not explain why a sex offender driven by repetitive, compulsive behavior is eligible for a sentence to the Adult Diagnostic and Treatment Center but a sex offender who suffers from “a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence” is not.

The Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (as successor to N.J.S.A. 2A:164-1 to -12), pre-dates the Sexually Violent Predator Act, N.J.S.A 30:4-27.24 to -27.38, by almost a half century. At the time of the enactment of the Sex Offender Act, and the establishment of the Adult Diagnostic and Treatment Center, the Legislature obviously concluded that only those offenders whose “conduct was characterized by ... [a] pattern of repetitive, compulsive behavior” should be eligible for “a program of specialized treatment for [their] mental and physical aberrations.” N.J.S.A. 2A:164-5(a), (c) (1956) (current version at N.J.S.A. 2C:47-3). The purpose of a sentence to the ADTC was the rehabilitation of the offender, treating him so that he was “capable of making an acceptable social adjustment in the community.” N.J.S.A. 2A:164-8 (1951) (current version at N.J.S.A 2C:47-5). When the Sex Offender Act was passed, civil commitment for sexually violent predators was not an option, unless such sexual offenders met the general test for civil commitment. See N.J.S.A. 30:4-26.1 (1953) (current version at N.J.S.A. 30:4-27.1 to -27.23).

The enactment of the Sexually Violent Predator Act was ushered in during a different age, when the Legislature had greater *216 knowledge and a better understanding of the grave threat that an unrehabilitated sex offender posed to society. That Act, presumably, reflects the current state of psychological and behavioral science pertaining to sexually violent predators. But the failure of the Legislature to provide for treatment of those imprisoned who suffer “a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence” is not evidence of an intelligent design, but more likely oversight. As a result of the current irrational and therefore unconstitutional scheme, potentially treatable sex offenders in the general prison population of our State will be civilly committed because they have not been treated while incarcerated.

The anomalous outcomes from the two statutory schemes led Judge Stern in his concurring opinion in In re Civil Commitment ofW.X.C. to suggest “that the Legislature should revisit the Sex Offender Act ... in light of subsequent developments concerning the treatment of sex offenders.” 407 N.J.Super. 619, 643 , 972 A.2d 462 (App.Div.2009). Judge Stern understood that there may be no valid reason “to delay the treatment of sex offenders who do not now fall within the purview of [the Sex Offender Act]” and that “[o]ur sentencing and treatment of sex offenders may well benefit from legislative review____” Ibid.

The statistics that the majority asserts demonstrate the constitutionality of the current legislative scheme, I believe, prove just the opposite. According to a 2003 study relied on by the majority, thirty-one persons released from the ADTC were civilly committed under the SVPA whereas twenty-five inmates released from the general prison population were similarly committed. Ante at 197-98, 8 A.3d at 184-85. That means that of the fifty-six persons committed under the SVPA in 2003, the State did not provide sex-offender specific treatment for forty-five percent of prison inmates—the twenty-five who came from the general prison population.

A constitutional success story is not when nearly half of prison inmates civilly committed as sexually violent offenders were de *217 prived of sex-offender specific treatment and the lack of treatment played a role in the justification for their civil commitment. The constitutional right to substantive due process—the right to be free from unnecessary governmental restraint—should be available to every person, however disfavored or despised he may be. Constitutional rights are not rationed based on a utilitarian theory that when a majority of some subject class receives the benefit of a right, those who do not should be equally content.

The majority does not explain why at the time of sentencing— for treatment purposes—psychological experts and courts are able to determine that an offender is repetitive and compulsive, but not that an offender suffers from a mental abnormality or personality disorder that would make him eligible for commitment as a sexually violent predator. Certainly a court has no trouble making the sexually violent predator determination at the time of civil commitment. The majority does not give a satisfying reason why offenders most likely to be subject to civil commitment will not receive treatment during their incarceration. A scheme that is unconstitutional should not have greater currency because—as the majority suggests—no court has said so yet.

IV.

Under the present statutory scheme, inmates who do not satisfy the criteria for placement under the Sex Offender Act, but who do meet the definition of a sexually violent predator, are denied the very treatment that may save them from civil commitment at the end of their criminal confinement. When the State knows or has a reasonable belief that an inmate in its custody suffers a mental abnormality or personality disorder that makes him eligible for civil commitment under the SVPA, the State must offer the inmate sex-offender specific therapy before it commences civil-commitment proceedings. That is because an inmate has a fundamental liberty interest in securing his freedom after serving his sentence. The State cannot deny an inmate sex-offender specific treatment and then use his failure to receive such treatment as the basis for *218 his civil commitment under the SVPA, consistent with the due-process guarantees of our federal and state constitutions.

I therefore respectfully dissent.

For affirmance—Chief Justice RABNER and Justices LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS—5.

For reversal—Justices LONG and ALBIN—2.

Whether W.X.C. should be able to seek other relief under either the federal civil rights statute, 42 U.S.C. § 1983 , or our State’s cognate civil rights provision, N.J.S.A. 10:6-1 to -2, is not a matter before us.

Since WXC.’s sentencing, the Sex Offender Act has been amended several times. See L. 1994, c. 130, § 6; L. 1994, c. 134, § 2; L. 1998, c. 72, § 3. The Act now provides that if a psychological examination conducted by the Department ol Corrections concludes that "the offender's conduct was characterized by a pattern of repetitive, compulsive behavior and that the offender is amenable to sex offender treatment and is willing to participate in such treatment," NJ.S.A. 2C:47-3(b) (emphasis added), and the court makes the same determination, then, “upon the recommendation of the [Department],” the court must order the defendant to serve his sentence at the ADTC, ibid. Therefore, a precondition for treatment at the ADTC is that the offender be "amenable to sex offender treatment” and "willing to participate in such treatment. .. ”

Among other materials reviewed by Dr. Frank was a post-arrest statement of W.X.C. in which he admitted that (1) he had burglarized the homes of two of the victims before returning to rape them; (2) burglarizing homes made him masturbate a lot; (3) he frequently masturbated to a movie that depicted "dead actors”; (4) he was aroused because the victims were scared of him; and (5) he had a sexual problem and knew he needed help.

A month after submission oí Blodgett’s report, Dr. Susan Uhrich, a psychiatrist, conducted an evaluation of W.X.C. and concluded that he did not meet the criteria for commitment under the SVPA.

Analogous protections are found in our State Constitution. W.X.C. has a liberty interest under the substantive-due-process guarantee of Article I, Paragraph 1, see Lewis v. Harris, 188 N.J. 415, 434-35 , 908 A.2d 196 (2006), as well as a right to be free from "cruel and unusual punishments" under Article I, Paragraph 12.

A person engaged in a sex-offender specific treatment program progresses through phases or stages in which he must demonstrate increasing responsibility and positive behavioral changes. See John Kip Cornwell, John V. Jacobi & Philip H. Witt, The New Jersey Sexually Violent Predator Act: Analysis and Recommendations for the Treatment of Sexual Offenders in New Jersey, 24 Seton Hall Legis. J. 1 , 17-18 (1999). These programs are typically conducted in group settings and require evaluation from medical professionals and other institutional staff. Id. at 17-19 .

The treatment offered at the ADTC consists of cognitive-behavioral treatment and relapse prevention intended to minimize future sexually harmful behavior. Sabrina R. Haugebrook & Kristen M. Zgoba, Prison Group Counseling, in Correctional Counseling & Treatment 149, 161 (Albert R. Roberts, ed., 2007). These therapies are associated with a reduction in sexual recidivism. Id. at 162 . To the extent that these therapies have the potential for success, treatment is liberty protecting.