Criminal Injustice System

A Truly Odious Ruling
 by Joe Power
ACCORDING TO WIKIPEDIA, “a Catch-22, coined by Joseph Heller in his novel Catch-22, is a logical paradox arising from a situation in which an individual needs something that can only be acquired by not being in that very situation; therefore, the acquisition of this thing becomes logically impossible. Catch-22s are often spoken with regard to rules, regulations, procedures, or situations in which one has knowledge of being or becoming a victim but has no control over it occurring.”

In early November the New Jersey Supreme Court perpetrated its very own Catch 22 when it ruled the state was within its rights to refuse a prisoner sex offender treatment while in prison and then civilly commit him because he had not had sex offender treatment.

The sex offender in this case -- referred to only by his initials W.X.C. -- was accused of raping two women while burglarizing their homes in 1992. He was arrested while sexually attacking a woman in a nursing home and pled guilty in 1993 to two counts of aggravated sexual assault, one count of attempted aggravated sexual assault and other offenses including kidnapping and robbery. At sentencing, W.X.C. asked to be sent to the Adult Diagnostic and Treatment Center, the state's only prison specifically for sex offenders, to receive therapy. However, the state's evaluation said he did not meet the criteria because, as a sex offender, he was only repetitive, not compulsive (both are required under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10).

After 12 years in prison, W.X.C. reached parole eligibility. In New Jersey, under the Sexually Violent Predator Act (SVPA - enacted in 1998), sex offenders may be civilly committed at the end of their prison sentences when the state determines that they are highly likely to commit new sex crimes. The same psychologist who said W.X.C. was ineligible for treatment at ADTC recommended that the state review his case for possible civil commitment, because he “does not appear to have had any appreciable sex-offender specific psychotherapy."

W.X.C was civilly committed in 2007. One doctor wrote that he had “not moderated his risk through treatment. He had not had treatment for his sexually inappropriate behavior.” W.X.C. argued in his appeal that the state's denial of treatment during his prison sentence was being used against him.

In a 5-2 decision, the state's highest court rejected his argument, saying the laws governing placement within the prison system and those governing civil commitment cannot be equated. Just because some offenders do not meet the criteria for treatment at ADTC does not mean they cannot be civilly committed, wrote Justice Helen Hoens in the majority decision.

"The fatal flaw in defendant’s argument lies in its failure to appreciate that the two statutes are designed to serve different purposes and strive to achieve them through different regulatory mechanisms," wrote Justice Hoens. "The operation of the SVPA is neither punitive nor fundamentally unfair and we therefore reject defendant’s arguments that it is unconstitutional as applied to him and other offenders like him."

Hoens was joined in her decision by justices Stuart Rabner, Jaynee LaVecchia, John Wallace and Roberto Rivera-Soto. Justices Barry Albin and Virginia Long dissented. They criticized the state's handling of his case (though they also said W.X.C. should not be released). They questioned how the state could say W.X.C did not need sex offender treatment while in prison, but then civilly commit him years later by saying he needs treatment.

"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," Albin wrote. "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."

As I contemplate the majority decision in this case, I cannot help but hear the echoes of what Major Sanderson says to Yossarian, the protagonist of Heller's book: “You have no respect for excessive authority or obsolete traditions. You're dangerous and depraved, and you ought to be taken outside and shot!”

From NAMBLA Updates, Vol. 5, no. 4, Pg. 1, Dec. 2010
Copyright © NAMBLA, 2011


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