TWO PRECEDENTIAL NJ OPINIONS ON APPEAL RULE AGAINST MEGAN’S LAW REGISTRANTS
In the past month, both the New Jersey Supreme Court and the Appellate Division have issued precedential decisions regarding Megan’s Law. Both decisions ruled against the registrants.
In Matter of Registrant H.D., ___ N.J. ___, 2020 WL 1264027 (Mar. 17, 2020), the Supreme Court construed a Megan’s Law provision which allows registrants to petition the court to terminate their annual registration requirement where they have “not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and [are] not likely to pose a threat to the safety of others.” Id. at *2 (quoting N.J.S.A. 2C:7-2(f)). The issue was whether that provision “permits the termination of sex offender registration for registrants who commit an offense during the fifteen years following conviction or release, but who then remain offense-free for fifteen years.” Id.
In a prior reported decision, the Appellate Division had unanimously held that the provision does permit such termination, finding that its language is ambiguous because its phrase “any term of imprisonment” is an “indefinite term” which could refer to a subsequent offense, and not just to the initial offense requiring registration. Id. at *3 (quoting 457 N.J. Super. 205, 214 (App. Div. 2018). Using “other interpretive aides” to resolve that ambiguity, the court concluded that a contrary holding would be inconsistent with Megan’s Law’s remedial purpose: “the Legislature never intended to forever bar relief from Megan’s Law registration requirements to every person who commits an offense, however minor, within the first fifteen years following conviction of a sex offense or release from custody after that conviction.” Id. (quoting 457 N.J. Super. at 218).
However, the Supreme Court unanimously disagreed and reversed, finding that the provision’s language is “unambiguous” and “plainly refers to the conviction or release that triggers the registration requirement ….” Id. at *5. The Court also disagreed as to legislative intent, noting that other statutes instead permit termination from registration upon remaining offense-free for 15 years following “the last conviction or release” and finding that such “precise terms” demonstrate “that the Legislature knows how to tie Megan’s Law requirements to non-Megan’s Law offenses when it chooses; it did not choose to so under subsection (f).” Id. at 6 (quoting N.J.S.A. 2C:43-6.4(c)) (emphasis added in H.D.). The Court concluded that “[u]nder the plain language of subsection (f), the fifteen-year period during which an eligible registrant must remain offense-free to qualify for registration relief commences upon his or her conviction or release from confinement for the sex offense that gave rise to his or her registration requirement.” Id. The Court added that it was considering only an issue of “statutory interpretation – the meaning of subsection (f),” not “a due process challenge,” and thus declined to address “whether requiring the continued registration of a hypothetical registrant who is offense-free for more than fifteen years and poses no likely danger to the public would pass constitutional muster.” Id. at *7.
Just yesterday, in Matter of Registrant J.G., ___ N.J. Super. ___, 2020 WL 1845102 (App. Div. Apr. 13, 2020), the Appellate Division considered two registrants who had each been convicted of a single offense of child pornography distribution and classified as moderate (Tier Two) risks for re-offense under the Registrant Risk Assessment Scale (RRAS), which quantifies sex offenders’ risks of re-offense and, based on that quantification, determines the extent of their Megan’s Law registration and community notification requirements. Id. at *1. Both registrants argued that the use of the RRAS was improper, as applied either to them specifically or to one-time child pornography offenders generally, and relied primarily on the testimony of Dr. Phillip Witt, a psychologist who was qualified as an expert in the evaluation, treatment and risk assessment of sex offenders and who had not only evaluated both registrants but served on the Attorney General’s task force that developed the RRAS 25 years ago. Id. at **1-3.
Dr. Witt testified that child pornography – and especially the internet’s effects on child pornography – was not considered when the RRAS was developed in 1995 and that several RRAS factors “were inaccurate in assessing the risk of one-time child pornography offenders.” Id. at *2. He thus opined that such offenders should not be subject to the RRAS at all, or alternatively should be subject to the RRAS but not those inaccurate factors, or alternatively should be subject to both the RRAS and those factors but allowed to argue that they should be classified as low risk (Tier One) for re-offense. Id. The trial courts nevertheless rejected Dr. Witt’s testimony, found both registrants to be moderate risk (Tier Two) for re-offense, and imposed registration and community notification requirements consistent with that classification. Id. at **2-3.
The Appellate Division affirmed those rulings. The court held that both registrants “failed to present evidence demonstrating that as applied to them the use of the RRAS was improper,” finding support for the trial courts’ findings that Dr. Witt’s opinion that they presented low risks for re-offense was “unreliable” and that “there was clear and convincing evidence that [they] posed moderate risks of sexual re-offending,” even though the only evidence cited was the nature of their offenses and not any subsequent conduct. Id. at *6. The court also rejected Dr. Witt’s opinions as to the inappropriateness of applying the RRAS to one-time child pornography offenders generally, noting that the two alternative standards he proposed – the Child Pornography Offender Risk Tool (CPORT) and the Juvenile Risk Assessment Scale (JRAS) – lacked “sufficient studies or data to support modifying or replacing the RRAS ….” Id. at *7. Absent any “evidence that experts in the area of assessing the risk of re-offense of sex
offenders generally agree that one-time child pornography offenders are different, and should be evaluated differently, from other sex offenders,” the court concluded that the two registrants failed to present any “evidence that warranted a rejection of, or modification to, the RRAS when applied to one-time child pornography offenders,” without precluding “the possibility that a registrant could develop the record” with such evidence in a future case. Id.
Both rulings are disappointing to those who believe that the registration and community notification requirements of Megan’s Law are too harsh and/or too inflexible. The particular problems with the statute highlighted by these decisions will apparently have to be addressed by the Legislature, if at all.