In a well-reasoned unanimous decision, Justice Albin held that the irrebuttable presumption that a juvenile sex offender can never be rehabilitated and therefore is subject to a lifetime Megan’s Law notification requirement is unconstitutional. State in the Interest of C.K., ___ N.J. ___ (2018).
Although N.J.S.A. 2C:7-2(f) subjects all sex offenders (adults and juveniles) to lifetime Megan’s Law registration and notification requirements, it does permit a registrant to apply for termination of these requirements 15 years after conviction, or juvenile adjudication, if the defendant “is not likely to pose a threat to the safety of others.”
However, N.J.S.A. 2C:7-2(g) does not permit any such termination if the juvenile is adjudicated delinquent of more than one sexual offense or of aggravated sexual assault. Thus Justice Albin, in striking down this provision, pointed out that this statute “imposes an irrebuttable presumption that juveniles … are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.”
The facts in this case clearly support the court’s observation that defendant should have the opportunity to establish that he is rehabilitated and therefore entitled to termination of the Megan’s Law notification requirements. From the time defendant C.K. was 15 to 17 years old he performed oral sex on his brother, A.K., while A.K. was 7 to 9 years old, which A.K. reported to his priest and the police when he was 16 years old. Defendant was sentenced to three years probation, conditioned upon his receiving sex offender treatment, and was required, pursuant to Megan’s Law, to register annually with the law enforcement agency where he resided. In the 14 years since being sentenced (and 20 years since the offenses), C.K. has been offense-free, has complied with all notification requirements, has graduated from college with a degree in psychology, has obtained a Master’s degree in counseling, and has worked for many years for a nonprofit agency as a counselor for adults suffering from mental illnesses.
Medical evidence presented at C.K.’s post conviction hearing established that, because C.K.’s conduct with his younger brother was not part of a broader sexual pattern, he was a low risk to reoffend and was now a productive, healthy and sexually adjusted adult. In addition, four clinical psychologists, who were experts in the treatment of both adult and juvenile sex offenders, testified that juvenile sex offenders are: (1) more amenable to rehabilitation and less likely to reoffend than adults, and (2) more likely to commit sex acts impulsively and out of curiosity rather than due to sexual deviant behavior. The medical evidence at the hearing also established that: (3) juvenile sex offenders who reoffend generally do so within the first few years following their last offense, therefore the longer a juvenile remains offense-free, the lower the risk that he will reoffend; and (4) registration requirements not only do not necessarily reduce recidivism, but inflexible lifetime registration requirements impede the juvenile’s ability to become rehabilitated.
The court pointed out that our system of jurisprudence properly treats juveniles differently than adults because their mistakes and wrongdoings are often the result of their youthfulness and immaturity rather than criminality, and therefore they are more likely to be rehabilitated. For this reason the purpose of the Juvenile Code (N.J.S.A. 2A:4A-20) is to replace criminal sanctions with “an adequate program of supervision, care and rehabilitation.”
In rendering its decision, the court had to balance the goal of Megan’s Law (“to alert the public about sex offenders who may pose a danger to children”) against the rights of every person, provided by New Jersey’s constitution, “to enjoy life, liberty, and property, and to pursue happiness” (Art.1, par.1), which rights “cannot be abridged by arbitrary government action.” The court recognized that lifetime notification requirements certainly affect a juvenile’s ability, as he or she becomes an adult, to gain employment, to gain acceptance in the community, to develop self respect, and to form personal relationships with others, i.e., “the juvenile registrant will forever remain a social pariah.”
The court pointed out that in order to pass constitutional muster a statute must have “a rational basis in furthering some legitimate state interest.” However, this statute did not have such a basis because it did not consider the individual defendant’s conduct subsequent to his or her adjudication, and whether the juvenile continued to pose a risk of committing another sex offense. The court pointed out that the medical evidence at the hearing noted that “the risk assessment is really a reflection of commonsense.”
For these reasons, the court held that N.J.S.A. 2C:7-2(g) deprived a juvenile of due process of law.
Kudos to Justice Albin for using legal logic and “commonsense” to establish that “a one size fits all approach does not (and, in this author’s opinion, should not) apply in the juvenile justice system.”
Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.