SVP Law Memo revised 7-31-12

NEW JERSEY PUBLIC DEFENDER
DIVISION OF GUARDIANSHIP AND MENTAL HEALTH ADVOCACY
ALTERNATE COMMITMENT UNIT
SEXUAL VIOLENT PREDATOR COMMITMENT IN
NEW JERSEY
THE CURRENT STATE OFNJ CASE LAW ON SIGNIFICANT ISSUES IN SVP COMMITMENT
LEWIS P. SENGSTACKE, ASSISTANT DEPUTY PUBLIC DEFENDER
(Third Revision) 7/31/12
THIS MEMORANDUMADDRESSES CERTAIN SIGNIFICANTISSUESIN THECOMMITMENTANDRELEASEOF
SEXUALVIOLENTPREDATORSUNDERN.J.S.A.30:27. 24 ET SEQ. It doesnot necessarily reflect the view of
the N.J.Officeof the Public Defender.

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................3
PROCEDUREAND STANDARDS:
PROCEDURE FOR SVPA COMMITMENT ...............................................................4
STANDARD FORCOMMITMENT............................................................................6
N.J.S.A. 30:4-27.26(b), THE “CATCHALL PROVISION”...................................8
NOTICE OF TEMPORARY COMMITMENT...........................................................11
STANDARD OF PROOF...........................................................................................12
THE RIGHT TO JURY TRIAL ..................................................................................14
EX POST FACTO .....................................................................................................16
SHACKLING OFA RESPONDENT IN THE COURTROOM……………………17
PRISON - LIKE CONDITIONS……………………………………………………19
SHAM TREATMENT………………………………………...................................27
RELEASE ……………………………………………………..…………………. 31
RETURN TO CUSTODY AND COMMITMENT OF
A CONDITIONALLY RELEASED PERSON…………………………………….34
SVP PSYCHOLOGY:
PSYCHOLOGY IN SEXUAL VIOLENT PREDATOR LITIGATION ………….36
THE ADMISSABILITY OFACTUARIALS ………………………………………47
ONLY PSYCHIATRISTS QUALIFIED TO DETERMINE
IF COMMITMENT NECESSARY……………………………………………… 54

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RECORDING OF PSYCHIATRIC INTERVIEWS .................................................56
REFUSAL TO BE INTERVIEWED BY STATE PSYCHIATRIST........................57
TRIAL PRACTICE:
HEARSAY IN THE SVP CONTEXT………………………………………………59
INEFFECTIVE ASSISTANCE OF COUNSEL.........................................................69
CONCLUSION..........................................................................................................72
APPENDIX A (Hearsay Rules) ...................................................................................73

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INTRODUCTION
This memo summarizes the controlling case law on various important and frequently recurring
issues in New Jersey SVP litigation. It is fair to say that the relevant bodyof law is dismal, from the
defendat’s perspective. I have included some limited commentary and a few suggestions on
circumventing or challenging the negative holdings, but I have mainly sought only to set forth the
controlling law. For the most part, I have limited myself to published opinions. As of July 30, 2012,
there were, by my count, 559 SVP-related New Jerseyappellate decisions, published and unpublished.
There are also a number of Federal Court SVP Habeas decisions out of New Jersey
which are relevant to certain issues. The order of the issues discussed is not intended to
suggest the relative significance of any particular one. Where a case is cited under
different subject headings, I have included the full citation each time. I have quoted
significant segments of relevant opinions so that counsel may refer to the court’s
language while making argument and because of the importance of context.
I would like to thank legal intern and law student Alison Lynch for her excellent
work cite-checking and Shepardizing the many cases cited herein.

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PROCEDURE FOR SVPA COMMITMENT
The following is an outline of SVPA commitment procedures taken from an excellent
summary in Fournier v. Corzine, 2007 U.S. Dist. LEXIS 54110 (D.N.J. 2007):
When it appears that a person may meet the criteriaof a SVP, the "agency
with jurisdiction" [an "agency with jurisdiction" refers to the agency which
releases a person who is serving a sentence or a term of confinement. This
term includes the NJDOC. N.J.S.A. 30:4-27.26]must provide notice to the
New Jersey Attorney General ninety (90) days, or as soon as practicable,
before the anticipated release of a person who has been convicted of a
sexually violent offense. N.J.S.A. 30:4-27.27(a)(1). If the Attorney General
determines that public safety warrants the involuntary civil commitment of
a SVP, the Attorney General may initiate a court proceeding by presenting
to a judge for immediate review the certificationof two doctors, one of
whom must be a psychiatrist, who have examined the person no more than
three days before the petition for commitment. N.J.S.A. 30:4-27.28;30:4-
27.26; see also In the Matter of Commitments of M.G. and D.C., 331 N.J.
Super. 365, 373, 751 A.2d 1101 (2000). Once these documents are received
by the court, the court must determine whether there is probable cause to
believe that the person is a SVP. N.J.S.A. 30:4-27.28(f). If the court so
finds, the court will issue an order authorizing temporary commitment to a
secure facility designated for the care, control and treatment of SVPs
pending a final hearing, and a final hearing date will be scheduled within
twenty (20) days of the temporary commitment. N.J.S.A. 30:4-27.28(f) and
30:4-27.29(a). The SVPA mandates that the person deemed to be a SVP
shall not be released from confinement before the final hearing. N.J.S.A.
30:4-27.28(f).
The person deemed to be a SVP and his/her counsel shall be provided
with the following at least ten (10) days before the final hearing: (1) copies
of the clinical certificates and supporting documents, (2) the temporary
court order, and (3) a statement of the SVP's rights at the final hearing.
N.J.S.A. 30:4-27.30(a).
[A SVP is afforded the following rights at his/her court hearing: (1) the
right to be represented by counsel or, if indigent, by appointed counsel; (2)
the right to be present at the court hearing unless the court determines that
because of the person's conduct at the court hearing the proceeding cannot
reasonably continue while the person is present; (3) the right to present
evidence; (4) the right to cross-examine witnesses; and (5) the right to a
hearing in camera. N.J.S.A. 30:4-27.31.]
At the final hearing, the court must find by clear and convincing
evidence that the SVP is in need of continued involuntary commitment to

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issue an order of involuntary commitment. N.J.S.A. 30:4-27.32(a). The
SVP is not permitted to appear at the hearing without counsel, and he will
be appointed counsel if indigent. N.J.S.A. 30:4-27.29(c). The psychiatrist
on the SVP's treatment team who has conducted a personal examination of
the SVP within five (5) days of the final hearing, shall testify at the hearing
as to the clinical basis for involuntary commitment as a SVP. N.J.S.A. 30:4-
27.30(b). Other members of the person's treatment team and other witnesses
with relevant information, offeredby the SVP or by the Attorney General,
are permitted to testify at the final hearing. Id.
Those persons committed under the SVPA shall receive annual review
hearings. N.J.S.A. 30:4-27.35. A SVP may be released from involuntary
civil commitment upon recommendation of the DHS or by the SVP's own
petition for discharge. N.J.S.A. 30:4-27.36.
Id. at 17-20.

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STANDARD FOR COMMITMENT
The SVPA authorizes the State, through civil commitment proceedings, to
involuntarily commit a person who is found to be a sexually violent predator, which
requires proof that the person has been convicted, adjudicated delinquent, or found not
guilty by reason of insanity of a sexually violent offense and that the person "suffers from
a mental abnormality or personality disorder that makes the person [highly] 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, I/M/O Commitment of W.Z., 173 N.J. 109, 120, 801
A.2d 205, 2002 N.J. LEXIS 905 (2002)
According to W.Z., under the SVPA, a sex offender’s mental abnormality or
personality disorder must affect his ability to control his sexually harmful conduct. There
need not be a complete loss of control, but a substantial inability to control conduct. Id. at
128.
The "dangerousness" finding requires that the offender be "[highly] likely to engage
in acts of sexual violence." A person poses a threat to the health and safety of others if
found by clear and convincing evidence to have “serious difficulty in controlling his or
her harmful behavior such that it is highly likely that the individual will not control his or
her sexually violent behavior and will reoffend.” Id. at 132. An SVPA committee should
be released when a court finds he will not have serious difficulty controlling sexually
violent behavior and will be highly likely to comply with a plan for safe reintegration into
the community. Id. at 130.
A trial court should consider the likelihood of reoffense within the reasonably
foreseeable future and need not make a more specific finding concerning precisely when

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the person will recidivate. It is present serious difficulty with control that is significant.
Id. at 132-133.
Highly Likely to Reoffend
In addition, to be within the class of persons who may be committed under
the SVPA, one must be "likely to engage in acts of sexual violence." That
aspect of the "dangerousness" prong of the Act is explained to mean that
"the propensity of a person to commit acts of sexual violence is of such a
degree as to pose a threat to the health and safety of others." One's
likelihood to commit such acts obviously relates to the control
determination that the trial court must make. Although the "likelihood"
requirement is not defined further in the Act, we import into that analysis
the "serious difficulty" standard. An individual may be considered to pose a
threat to the health and safety of others if he or she were found, by clear and
convincing evidence, to have serious difficulty in controlling his or her
harmful behavior such that it is highly likely that the individual will not
control his or her sexually violent behavior and will reoffend.
Id. at 129-130. (Emphasis added).

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N.J.S.A. 30:4-27.26(b), THE “CATCHALL PROVISION”
N.J.S.A. 30:4-27.26(a) defines certain crimes which may serve as predicate
offenses for SVP commitment:
(a) aggravated sexual assault; sexual assault; aggravated criminal sexual
contact; kidnapping pursuant to subparagraph (b) of paragraph (2) of
subsection c. of N.J.S.2C:13-1; criminal sexual contact; felony murder
pursuant to paragraph (3) of N.J.S.2C:11-3 if the underlying crime is sexual
assault; an attempt to commit any of these enumerated offenses; or a
criminal offense with substantially the same elements as any offense
enumerated above, entered or imposed under the laws of the United States,
this State or another state[.]
The “catchall provision” is N.J.S.A. 30:4-27.26(b), which adds, as a separate
category of "sexually violent offenses," "any offense that, based on the circumstances of
the case, the person's offense should be considered a sexually violent offense."
In re Commitment of J.M.B., 197 N.J. 563, 578, 964 A.2d 752 (2009) is the
controlling case. Basically, J.M.B. held that section(b) allows the court to find that a
person who has not been convicted of a section (a) offense committed a “substantially
equivalent” offense, based on the facts underlying a non-enumerated convicted offense.
The convicted offense need not possess all the elements of any enumerated section(a)
offense, but must have sufficient indicia of sexual motivation or content so as to
constitute substantial equivalence to those offenses enumerated in section (a). With that
attempt at explanation, I leave you to the court’s own language:
The legislative history of the SVPA itself gives little guidance on the
application of N.J.S.A. 30:4-27.26(b)'s definition of a sexually violent
offense. However, the plain language, purpose, and internal logic of the Act
all signal that it was intended to grant courts the authority to approve the
involuntary commitment of an individual who does not have a conviction

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for a sexually violent offense as defined in subsection (a) . . . It is
significant that, although subsection (a) contains a provision intended to
encompass federal crimes, and crimes of "this State or another state" that
have "substantially the same elements as any offense enumerated" in
N.J.S.A. 30:4-27.26(a), the Legislature also included the authorization in
subsection (b) for a court to make its own "finding on the record, based on
the circumstances of the case," that a "person's offense should be
considered a sexually violent offense." N.J.S.A. 30:4-27.26(b). That
provision would be rendered a nullity were it to be read as simply a
reiteration of the concept in subsection (a), that a court may find a crime
having "substantially the same elements as an enumerated offense" to be a
sexually violent offense. . . . Applying [statutory construction] principles to
subsection (b) requires that it be read to confer additional authority on a
court to determine an offense, which is not listed in subsection (a) and
which does not have substantially the same elements as an enumerated
offense, to be, nevertheless, a sexually violent offense. . . . That the SVPA
permits involuntary commitment of individuals who pleaded guilty to
predicate offenses without notice is consistent with the holding that
subsection (b) authorizes a court to determine, post-conviction, whether a
person's conduct in connection with a conviction for an offense not listed in
subsection (a) nevertheless may be found to constitute a sexually violent
offense. . . . The open-ended definition in subsection (b) must be interpreted
in the light of the scope of the associated specific definitions in
subparagraph (a). . . . When read together, the rational construction of
these two paragraphs shows that the Legislature considered it appropriate to
expand "sexually violent offense" to also include conduct which
demonstrates the elements of the enumerated sexually violent offenses
delineated in subsection (a), even though the conviction may be for an
offense other than those specifically listed. The specific findings
requirement in subsection (b) assures that not just any conduct suffices; the
demonstrated conduct must be in the nature of the type of sexual offenses
enumerated . . . We hold therefore that when faced with an application for
civil commitment under subsection (b), a court may consider the
circumstances that led to the qualifying prior conviction. When that
conduct is substantially equivalent to the sexually violent conduct
encompassed by the offenses listed in subsection (a), then that prior
conviction may provide the predicate for a commitment application under
subsection (b). We further hold that that determination may be made by the
committing court, on application by the Attorney General. The SVPA
clearly contemplated that such a determination might be made after the fact
of conviction and at the time commitment is sought because the SVPA
plainly applies to persons whose convictions preceded the SVPA's
enactment . . . . To prove the "fact" of the prior conviction, and the "fact"
that the circumstances of the individual's case satisfy the substantially
equivalent standard for sexually violent conduct, both of which are

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necessary for civil commitment, the SVPA provides the applicable standard
of proof: clear and convincing evidence is required.
Id. at 572-578.
I would suggest that the court’s explanation does little to clarify the difference
between section (a)’s provision that includes, besides the enumerated offenses, crimes of
"this State or another state" that have "substantially the same elements as any offense
enumerated" and section(b)’s provision for "any offense that, based on the circumstances
of the case, the person's offense should be considered a sexually violent offense." That
will have to be evaluated on a case-by-case basis. What is clear is that section (b) casts a
somewhat wider, though undefined, net.

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NOTICE OF TEMPORARY COMMITMENT
I/M/O Commitments of M.G. and D.C., I/M/O Commitment of H.H., 331 N.J.
Super. 365; 751 A.2d 1101; 2000 N.J. Super. LEXIS 225 (App. Div. 2000) held that
persons in custody have a right to seven days notice of temporary commitment. The
Public Defender does not have a right to a general list of persons to be transferred to the
STU.
We conclude, therefore, that the State must provide notice to individuals
who are in a state facility on CEPP status before a temporary commitment
hearing. Upon receiving such notice, the alleged SVP may challenge
whether the documentation submitted to the court for temporary
commitment meets the requirements of N.J.S.A. 30:4-27.26. Such challenge
shall not involve testimony, which shall be reserved for final hearing. The
notice requirement and ability to challenge the probable cause requirement
shall satisfy any due process concerns. Although the judge ordered two
weeks notice, we are satisfied that seven days notice meets both the needs
of the State and the alleged SVP, and we modify the Law Division's order
accordingly.
Id at 386.

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STANDARD OF PROOF
“Clear and convincing proofis required for commitment.” I/M/O Commitment of W.Z.,
173 N.J. 109, 120, 131, 133, 801 A.2d 205, 2002 N.J. LEXIS 905 (2002)
The standard has been frequently challenged, with appellants claiming that the proper standard is
“beyond a reasonable doubt.” That position has been rejected repeatedly by the Appellate
Division. See, I/M/O Commitment of G.G.N., 372 N.J. Super. 42, 855 A.2d 569, 2004 N.J.
Super. LEXIS 342 (App. Div. 2004):
[W]e find no basis to alter the burden of proof from that which is set out in
the statute and which was approved by our Supreme Court in In re
Commitment of W.Z., 173 N.J. 109, 130-131, 801 A.2d 205, 217 (2002);
accord J.H.M., supra, 367 N.J. Super. at 607, 845 A.2d 143; N.J.S.A. 30:4-
27.32a. The standard of proof is clear and convincing evidence.
Id. at 46.
The Federal courts have refused to disturb the clear and convincing standard in
SVP Habeas applications. E.G., Aruanno v. New Jersey, 2009 U.S. Dist. LEXIS 74127
(D.N.J. 2007), affirmed by Aruanno v. Hayman, 2010 U.S. App. LEXIS 12082 (3d Cir.
N.J., June 14, 2010).
With regards to the evidentiary issue, the SVPA explicitly provides for the
clear and convincing evidence standard. N.J.S.A. 30:4-27.32(a). As recently
explained by the New Jersey Supreme Court in In re Commitment of
J.M.B., 197 N.J. 563, 578, 964 A.2d 752 (2009), the SVPA "involve[s]
findings of guilt beyond a reasonable doubt because that is the standard for
a criminal conviction. Once a conviction occurs, the beyond a reasonable
doubt standard drops out of the case. It is then that the SVPA itself
becomes operative."
Id. at 14.
The U.S. Supreme Court’s reasoning on the point in traditional commitment matters is relied
upon as sufficient justification for requiring no more.

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We have concluded that the reasonable-doubt standard is inappropriate in
civil commitment proceedings because, given the uncertainties of
psychiatric diagnosis, it may impose a burden the state cannot meet and
thereby erect an unreasonable barrier to needed medical treatment.
Similarly, we conclude that use of the term "unequivocal" is not
constitutionally required, although the states are free to use that standard.
To meet due process demands, the standard has to inform the fact-finder
that the proof must be greater than the preponderance-of-the-evidence
standard applicable to other categories of civil cases.
Addington v. Texas, 441 U.S. 418, 432-33, 99 S. Ct. 1804, 1812-13, 60 L. Ed. 2d 323,
335 (1979), quoted in I/M/O Commitment of JHM, 367 N.J. Super. 599, 845 A.2d 139,
(App. Div. 2003), certif. denied, 179 N.J. 312, 845 A.2d 137 (2004).

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THE RIGHT TO JURY TRIAL
There is no equal protection issue where a civil commitment statute treats
both sex offenders and other mentally ill persons the same in denying a jury
trial. . . For a committee to have a right to a trial by jury, "it must arise
under a statute or our State Constitution." . . . Article 1, paragraph 9 of the
New Jersey Constitution specificallyprovides: "The Legislature may
authorize the trial of the issue of mental incompetency without a jury." It
also provides that "[t]he right of trial by jury shall remain inviolate,"
preserving the right to a jury trial only for those cases where this right
existed at the time of the adoption of the State Constitutions in 1776, 1844,
or 1947, or where the right was created with the enactment of the State
Constitution . . .The New Jersey Constitution of 1844 was interpreted to
preclude a right to a trial by jury in a commitment hearing . . . and no such
right was created by the current New Jersey Constitution of 1947.
I/M/O Commitment of JHM, 367 N.J. Super. 599, 606-607, 845 A.2d 139, (App.
Div. 2003, certif. denied, 179 N.J. 312, 845 A.2d 137 (2004). (Citations omitted),
accord, I/M/O Commitment of G.G.N., 372 N.J. Super. 42, 46, 855 A.2d 569, 2004
N.J. Super. LEXIS 342 (App. Div. 2004).
The Federal courts have denied the jury trial claim in SVP Habeas proceedings.
Aruanno v. Hayman, 2010 U.S. App. LEXIS 12082 (3d Cir. N.J., June 14, 2010); Sigman
v. Rogers, 2008 U.S. Dist. LEXIS 71127 (D.N.J 2008);Meyers v. New Jersey, 2006 U.S.
Dist. LEXIS 51394 (D.N.J 2006)(Lengthy discussion of state and federal grounds for
denying jury trials in SVP matters).
In Poole v. Goodno, 335 F.3d 705 (8th Cir. 2003), the Court of Appeals for
the Eighth Circuit pointed out that the Supreme Court has permitted states
to make their own procedural rules for commitment cases. See id. at 711
(citing Addington v. Texas, 441 U.S. 418, 431, 99 S. Ct. 1804, 60 L. Ed. 2d
323 (1979)). The Eighth Circuit noted that, "[a]lthough the Court did not
speak directly about juries in Addington, it certainly left it open to states to
employ their own preferred procedures. It ruled that a reasonable doubt
standard is not required to meet the 'constitutional minimum' for civil
commitments, and the same type of reasoning could be applied to the type
of jury trial issue we face." Id. at 709. Therefore, where there is no clearly
established Supreme Court law holding that due process requires a jury trial

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in civil commitment proceedings or that incorporates the Seventh
Amendment right to a jury trial in such cases, see Poole, 335 F.3d at 710-
11, this Court concludes that there is no federal constitutional right to a jury
trial in state SVP civil commitment proceedings, and Sigman's claim for
relief on this ground will be denied for failure to state a claim of federal
constitutional deprivation.
Sigman, supra, at 39, 40.

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EX POST FACTO
The courts have consistently taken the position that the SVPA and similar statutes are not
ex post facto because they are civil, not criminal statutes.
“[C]ivil commitment, from a constitutional perspective, nonetheless
remains civil.” Kansas v. Hendricks, 521 U.S. 346, 380, 117 S. Ct. 2072,
2091, 138 L. Ed. 2d 501 (1997) (Breyer, J., dissenting) (citing Allen v.
Illinois, 478 U.S. 364, 369-70, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986)).
New Jersey's treatment of sex offenders is no different. One of the SVPA's
primary objectives is treatment for the sex offender . . . These same
principles prompt rejectionof committee's double jeopardy and ex post
facto claims. See Hendricks, 521 U.S. at 360-71, 389-90, 117 S. Ct. 2072,
138 L. Ed. 2d 501 (there could be no finding of any double jeopardy or ex
post facto violation as the Kansas Sexually Violent Predator Act did not
establish "criminal proceedings"; thus involuntary confinement pursuant to
Act was not punitive).
I/M/O Commitment of JHM, 367 N.J. Super. 599, 608, 845 A.2d 139, (App. Div.
2003, certif. denied, 179 N.J. 312, 845 A.2d 137 (2004).
The Federal court for the District of New Jersey has made short shrift of the claim:
In Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501
(1997), the United States Supreme Court held that the Double Jeopardy and
Ex Post Facto Clauses apply only to criminal statutes where punishment is
imposed. As discussed above, the SVPA qualifies as a civil statute,
precluding Aruanno's constitutional challenge.
Aruanno v. Hayman, 2010 U.S. App. LEXIS 12082 (3d Cir. N.J., June 14, 2010), at 15.

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SHACKLING OFA RESPONDENT IN THE COURTROOM
There are three cases addressing the issue of the shackling of respondents in the
courtroom, all unpublished: I/M/O Commitment of F.D., 2009 N.J. Super. Unpub. LEXIS
3026 (App. Div. 2009); I/M/O Commitment of R.D., 2009 N.J. Super. Unpub. LEXIS
363 (App. Div. 2009); and I/M/O Commitment of R.X.K., 2005 N.J. Super. Unpub.
LEXIS 161 (App. Div. 2005). The R.D. panel found that there was an insufficient record
to decide the issue; the R.X.K. panel merely found that the reasons given by Judge Freedman
were sufficient and that there was no prejudice, given the absence of a jury:
The judge stated that the hearing was being conducted at the STU in the
presence of an armed guard, and that the purpose of the shackles in these
cases was "to inhibit anyone from being able to rush the person with a
firearm." The judge noted that the security policy of the Department of
Corrections within its facility was being uniformly applied and did not
affect his decision in any way concerning the merits of the case . . . These
circumstances are in contrast to those in a criminal proceeding where the
credibility of a defendant or witness who testifies in shackles before a jury
could be improperly impugned. See State v. Smith, 346 N.J. Super. 233,
238-39, 787 A.2d 276 (App. Div. 2002). Accordingly, we find no
misapplication of discretion by Judge Freedman in denying the request by
counsel for R.X.K. that the shackles be removed.
R.X.K., supra, at 10.
The F.D. court, while reaching the same conclusion as in R.X.K., engaged in thirteen
pages of analysis, which is here presented in sharply summarized form:
Appellant argues that it was inappropriate for him to be shackled at the
2002 and 2003 hearings before Judge Freedman. He argues that he was not
an inmate at a prison, nor was he a criminal defendant. He contends that he
was protected under the Patient's Bill of Rights, which were codified at
N.J.S.A. 30:4-24.2(d). . . Appellant alludes to proposed N.J.A.C. 10:36A-2.3
[This proposed rule was not adopted. Ed.] for the proposition that he had
"the right to be free from unnecessary physical restraint except for
situations where a substantial or imminent threat to harm himself or others"
was shown. (Citing 38 N.J.R. 1984(a)). He urges that the relevant rule
applying to criminal trials, although discretionary, limits the use of
restraints to "exceptional circumstances" that must be explained on the
record . . . The State correctlyargues that the SVPA was specifically

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exempted from the Patient's Bill of Rights . . . The proper focus is on
administrative regulation. N.J.A.C. 10:36A-2.3(a) grants substantial
deference to the Department of Corrections to set restrictions necessary to
protect the safety of both patients and non-patients and to use physical
restraints in those situations where "other good cause exists indicating that
less restrictive means of restraint are not feasible[.]" We will affirm an
agency's decision if "'any fair argument in support of the course [taken by
the agency] or any reasonable ground for difference of opinion among
intelligent and conscientious officials'" exists. We will not substitute our
judgment for that of the administrative agency and will intervene only
where a decision was arbitrary or capricious . . . We find no basis to
conclude that the Department of Correction's initial decision to physically
restrain appellant was arbitrary or capricious. By definition, appellant was a
violent sex offender who was in the early stages of his treatment. For the
safety of Judge Freedman and others in the courtroom, placing physical
restraints on appellant was eminently reasonable. While other feasible
alternatives may have been available, we are acutely aware of the "volatile
environment" of the hearing and will defer absent a demonstration of abuse
of the discretion residing in the agency . . . This determination, however,
does not end our analysis. Although not a criminal proceeding, "the SVPA
has been called 'almost pseudo-criminal in nature' because of 'its very real
threat of lengthy incarceration.'" The quasi-criminal nature of the SVPA
commitment proceeding justifies an analysis of the New Jersey courts'
treatment of the use of physical restraints in criminal cases. [The court here
engages in a lengthy analysis of criminal cases involving courtroom
restraint] . . . While we are satisfied that the reasons for shackling were
sound here, we urge a fuller exploration of factors relevant to a Department
of Corrections' initial decision to shackle or a judge's decision on review.
Even if we were to conclude that the judge failed to make the requisite
findings to support the shackling here, we conclude that such error was
harmless.
F.D., supra, at 4-10.

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PRISON-LIKE CONDITIONS
A recurring complaint among SVPs is that they are subject to restrictive rules and
regulations which render the circumstances of their confinement similar to, or identical to, prison
conditions. At what point, if any, do DOC policies so impinge on SVPs’ rights so as to render
the conditions of confinement punitive and therefore prohibited?
The term “secure facility” is used in the SVPA statute to describe the environment in
which SVPs are to be held. It is not specifically defined, but, in light of the caselaw, the term
appears to be a synonym for prison or jail:
"Special Treatment Unit (STU)," "facility" or "unit" means a secure facility for
involuntarily civilly committed residents, operated by the Department of
Corrections, with custodial care provided or arranged for by the Department of
Corrections, and sex offender treatment services provided by, or arranged for by
the DMHS in the Department of Human Services.
N.J.S.A. § 10:36A-1.4. (Emphasis added).
If the court finds that there is probable cause to believe that the person is a
sexually violent predator in need of involuntary commitment, it shall issue an
order setting a date for a final hearing and authorizing temporary commitment to a
secure facility designated for the custody, care and treatment of sexually violent
predators pending the final hearing. In no event shall the person be released from
confinement prior to the final hearing.
N.J. S.A. § 30:4-27.28. (Emphasis added)
“County correctional facility" means any prison or other secure facility managed
and operated by any county of this State in which adult offenders are incarcerated.
N.J.S.A.§ 2C:29-10. (Emphasis added).
I have not found an opinion or statute that distinguishes “secure facility” from “prison.”
I searched the caselaw and SVP statutes in all states and found that, although that exact term is
often used in relation to juvenile offenders, there is essentially no definition of any kind where it
is applied to SVP committees. The Iowa Code is unusual in that it makes a reference to the
issue, but only to clarify that “‘appropriate secure facility’ means a state facility that is designed
to confine but not necessarily to treat a sexually violent predator.” I.C.A. § 229A.2.2.
There are a number of cases which hold that SVP committees should have better, more
lenient conditions of confinement than prisoners. See, E.G., Youngberg v. Romeo, 457 U.S.

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307, 321-22, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (“Persons who have been involuntarily
committed are entitled to more considerate treatment and conditions of confinement than
criminals whose conditions of confinement are designed to punish.”). "[D]ue process requires
that the conditions and duration of confinement [for civilly confined persons] bear some
reasonable relation to the purpose for which persons are committed." Seling v. Young, 531 U.S.
250, 265(2001). The substantive due process protections of the Fourteenth Amendment apply to
SVPs. Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001)(applying the Fourteenth
Amendment's "objective reasonableness" standard to excessive force claims brought by civilly
committed SVPs).
Notwithstanding all the language holding that civil committees should not be treated as
prisoners, the courts have paid little more than lip service to that proposition when it comes to
SVPs. Many cases make clear that detention itself does not necessarily constitute punishment.
The State may restrict the freedom of the dangerously mentally ill. “This is a legitimate
nonpunitive governmental objective and has been historically so regarded.” United States v.
Salerno, 481 U.S. 739, 747, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). (Emphasis added)
Youngberg itself articulated a basis for treating SVPs like prisoners. The Court held that
a balancing test should be applied in determining what are acceptable restraints on committees,
holding that civilly committed persons do have constitutionally protected interests, but that these
rights must be balanced against the reasons put forth by the State for restricting their liberties.
Youngberg, 457 U.S. at 305. “The Constitution is not concerned with de minimis restrictions on
patients' liberties.” Id. at 320. In practice, this has meant that nearly any kind of impingement
upon committees’ rights can be justified by considerations of security, safety and/or treatment
even where the practical effect of such impingements has been the creation of a prison-like
environment.
For instance, In, the Federal District Court of New Jersey has found that:

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Here, this Court likewise finds that it is beyond dispute that the staff at EJSP,
where plaintiff and other SVP residents are newly housed, has a legitimate
interest in both the safety of its facility and rehabilitating its patients. As noted
above, these civilly committed persons are convicted sexual predators, which
makes safety at EJSP a very important concern. . . . Consequently, as set forth by
the Supreme Court and the Third Circuit, the Court must defer to the prison
officials when it comes to issues of managing a safe and operational prison
facility.
Cooper v. Sharp, 2011 U.S. Dist. LEXIS 29823, 31-32 (D.N.J. Mar. 23, 2011) (Emphasis added).
[T]his Court finds that Mercado's placement and confinement in a Special
Treatment Unit for SVP residents that is a segregated unit in the East Jersey
State Prison, does not, in and of itself, violate the U.S. Constitution's Due Process
Clause or the Eighth Amendment's prohibition against cruel and unusual
punishment. Accordingly, Mercado's claim that his continued confinement in a
segregated unit within a prison facility is unconstitutional must be dismissed for
failure to state a cognizable claim of a constitutional deprivation.
Id. at 16-17. (Emphasis added)
Mercado v. Sharpe, et al., 2011 D.N.J., Lexis 66674, unpublished (June 21, 2011)
The Mercado court clearly understood the STU to be a part of EJSP and refers to the
complex as a “prison facility,” requiring deference to prison officials regarding its safe
operation.
Similarly, the United States Court of Appeals for the Ninth Circuit has held that, because
SVPs have been civilly committed subsequent to criminal convictions and have been adjudged
to pose a danger to the health and safety of others, they are subject to "[l]egitimate, non-punitive
government interests" such as "maintaining jail security”, and effective management of [the]
detention facility." Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004). The Third Circuit has said
that holding a civilly committed SVP in segregated confinement does not violate due process
unless the deprivation of liberty is extreme. Deavers v. Santiago, 243 Fed. Appx. 719, 721 (3d
Cir. 2007).
Thus, Mercado's general allegation that movement by the residents in the general
prison facility is monitored and restricted, without more, fails to articulate a
cognizable claim of constitutional magnitude, in light of Deavers. Mercado fails
to allege any facts to show that movements within the EJSP facility are unduly
extreme and unrelated to the purposes for which such restrictions are imposed.

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Mercado, Supra at 20-21. (Emphasis added.).
It is clear that the courts, including the Supreme Court, are quite well aware that SVPs
may be subject to prison-like conditions and to prison-like rules and it is equally obvious that
this is considered necessary because of their dangerousness. See Serna v. Goodno, 567 F.3d
944, 948 (8th Cir. 2009)(noting that pretrial detainees are kept in custody because there is cause
to believe they are dangerous; similarly, commitment under Minnesota law as a sexually
dangerous person requires a finding of dangerousness), cert. denied, 130 S. Ct. 465, 175 L. Ed.
2d 312 (2009). New Jersey also requires a dangerousness finding. In United States v.
Comstock, No. 08-1224, U.S. , 130 S.Ct. 1949, 176 L. Ed. 2d 878 (May 17, 2010), The
Court, although aware that civilly committed persons remained confined at a federal prison
(Butner), did not address the constitutionality of civil confinement within a prison environment..
In Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447, (1979) the Court
held that whether a condition of confinement of pretrial detainees violated their constitutional
rights turned on whether the disability is imposed for the purpose of punishment or whether it is
but an incident of some other legitimate government purpose. Id. at 535-39, (emphasis added);
Cooper v. Sharp, 2011 U.S. Dist. LEXIS 29823 at p. 16 fn. 3. The caselaw reflects that “jail
security” is one such legitimate governmental purpose. Essentially, the test for punitiveness of
the committees’ environment is the intent of the committing authority; that is, whether the
restrictions which impinge on personal rights of residents are intended to be punitive or not.
This is essentially the same reasoning as has been used to determine whether
commitments constituted double jeopardy or were ex post facto. “[C]ivil commitment, from a
constitutional perspective, nonetheless remains civil.” Kansas v. Hendricks, 521 U.S. 346, 380,
117 S. Ct. 2072, 2091, 138 L. Ed. 2d 501 (1997) (Breyer, J., dissenting) there could be no finding
of any double jeopardy or ex post facto violation as the Kansas Sexually Violent Predator Act did

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not establish "criminal proceedings"; thus, involuntary confinement pursuant to the Act was not
punitive. Kansas v. Hendricks, 521 U.S. 346, 380, 117 S. Ct. 2072, 2091, 138 L. Ed. 2d 501
(1997); I/M/O Commitment of JHM, 367 N.J. Super. 599, 608, 845 A.2d 139, (App. Div. 2003,
certif. denied, 179 N.J. 312, 845 A.2d 137 (2004).
The intent of the legislature or the agency administering the facility is virtually
dispositive. Security concerns are usually identical for a “secure facility” and for a jail or prison.
Actions taken to insure security at a “secure facility” may render it identical to a prison, yet if the
intent of restrictive measures is rationally related to a legitimate penological or therapeutic
objective, they are not deemed to be punitive.
In Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003) it was held that SVPs may be
subjected to conditions that advance goals such as preventing escape and assuring the safety of
others, even though they may not technically be "punished." cert. denied, 540 U.S. 985, 124 S.
Ct. 486, 157 L. Ed. 2d 377 (2003). (Emphasis added) . Waterman v. Farmer, 183 F.3d 208, 215
(3d Cir. 1999)("[I]t is beyond dispute that New Jersey has a legitimate penological interest in
rehabilitating its most dangerous and compulsive sex offenders." (Emphasis added.)) Mercado,
Supra, at 30-31. The Ninth Circuit Court of Appeals has held that, because SVPs have been
committed subsequent to criminal convictions and have been adjudged to pose a danger to the
health and safety of others, they are subject to "[l]egitimate, non-punitive government interests"
such as "maintaining jail security, and effective management of [the] detention facility." Jones v.
Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (Emphasis added); McKune v. Lile, 536 U.S. 24, 36,
122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002) ("[R]ehabilitation is a legitimate penological interest
that must be weighed against the exercise of an inmate's liberty.") (emphasis added); Turner, 482
U.S. at 91 (rehabilitation and maintaining security are legitimate penological interests); Allison,
332 F.3d at 1079 (preventing escape and assuring safety of others are legitimate institutional
interests) (emphasis added). Facilities that house and deal with residents who have been

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involuntarily committed for sexual disorders are "'volatile' environments whose day-to-day
operations cannot be managed from on high." Thielman v. Leean, 282 F.3d 478, 483 (7th Cir.
2002). Courts must presume that the judgment exercised by the appropriate professionals in
these facilities is reasonable. Although restrictions burdening a fundamental right generally
receive strict scrutiny, in Youngberg, the Supreme Court found that this sort of rigorous analysis
would unduly burden the ability of states, specifically their professional employees, to administer
mental health institutions. Youngberg at 322. Consequently, the Court concluded that "the
Constitution only requires that the courts make certain that professional judgment was in fact
exercised." Because
[i]t is not appropriate for the courts to specify which of several professionally
acceptable choices should have been made, id. at 321 . . . a decision, "if made by
a professional, is valid; liability may be imposed only when the decision by the
professional is such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person responsible actually did
not base the decision on such judgment."
Id. at 323.) A less stringent standard can hardly be imagined.
In New Jersey, as a practical matter, the Wolfish “balancing test” means balancing the
requirements of safety and security - as articulated by DOC - against the impingement upon
residents’ or prisoners’ lives. The vast discretion granted to DOC in that regard has resulted in a
long line of decisions in which safety and security requirements overbalance the impingements
on prisoners’/ residents’ rights.
In the correctional context where constitutional rights are implicated, such as in the handling
of inmate legal mail, the standard of review is whether the rule, action or regulation bears a
reasonable relationship to legitimate penological interests. Overton v. Bazzetta, 539 U.S. 126,
132, 123 S. Ct. 2162, 2167, 156 L. Ed. 2d 162, 170 (2003). In Turner v. Safley, 482 U.S. 78,
107 S.Ct. 2254, 96 L.Ed. 64 (1987), the Supreme Court articulated a four-prong test to determine

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whether a legitimate penological interest is being served by a particular agency decision. The
four-factor Turner test asks:
First, is there a valid, rational connection between the prison regulation and the
legitimate governmental interest put forward to justify it? Second, are there
alternative means of exercising the right that remain open to prison inmates?
Third, what impact will accommodation of the asserted constitutional right . . .
have on guards and other inmates, and on the allocation of prison resources
generally? And, fourth, are ready alternatives for furthering the governmental
interest available?
Turner, supra, 482 U.S. at 89-91, 107 S. Ct. at 2262, 96 L. Ed. 2d at 79-80).
Of course, the decisions of any administrative agency are historically accorded great
deference by the courts:
Courts have a limited role in reviewing a decision of an administrative agency.
Ordinarily, an appellate court will reverse the decision of the administrative
agency only if it is arbitrary, capricious or unreasonable or it is not supported by
substantial credible evidence in the record as a whole.
Henry v. Rahway State Prison, 81 N.J. 571, 580; 410 A.2d 686; 1980 N.J. LEXIS 1310
(1979).
In dealing with the DOC, the courts are especially deferential:
In crafting the appropriate standard of review for prisoners' constitutional claims,
the Court observed that "running a prison is an inordinately difficult undertaking."
Turner, 482 U.S. at 85. Moreover, the Court noted that "'courts are ill equipped to
deal with the increasingly urgent problems of prison administration and reform.'"
Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405, 40 L. Ed. 2d 224, 94 S. Ct.
1800, 71 Ohio Op. 2d 139 (1974)). Thus, "prison administrators should be
accorded wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security."
Bell v. Wolfish, 441 U.S. 520, 547, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (emphasis
added); Carter v. Dragovich, 292 F.3d 152; 2002 U.S. App. LEXIS 10301(3d Cir. 2002).
There have been many unpublished New Jersey Federal District Court matters in which
the plaintiffs (STU residents) claim they are being treated like prisoners in violation of the
Constitution. Numerous recent cases (2011) have generated decisions dismissing complaints,
very similar to those in Mercado, for failure to state a cognizable claim. These are unpublished

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cases, but they all rely on published decisions, many of which have been discussed above, and all
exhibit identical reasoning. Some of those cases are:
Belton v. Singer, Civil Action No. 10-6462 (SDW), UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY, 2011 U.S. Dist. LEXIS 74550, July 8, 2011,
Decided, July 8, 2011, Filed, NOT FOR PUBLICATION (allegations including placement in a
segregated unit within a prison facility, being treated like a prisoner and subjected to prison
rules, mail restrictions, strip searches, leaking toilets and ceilings, bed bug infestation and the
confiscation of electronic equipment, all dismissed for failure to state a claim)
Graham v. Sharp, Civil Action No. 10-5563 (SRC), UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY, 2011 U.S. Dist. LEXIS 66675, June 20, 2011,
Filed, NOT FOR PUBLICATION (transferred to a prison facility, subjected to prison security
rules, unlawful cell searches, strip searches, interference with mail, confiscation of electronic
devices, denial of medical treatment, verbal abuse by staff, all dismissed for failure to state a
claim)
Graham v. Main, Civil Action No. 10-5027 (SRC), UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY, 2011 U.S. Dist. LEXIS 65467, June 9, 2011, Filed, NOT
FOR PUBLICATION, Related proceeding at Graham v. Sharp, 2011 U.S. Dist. LEXIS 66675
(D.N.J., June 20, 2011) (transferred to a prison facility, subjected to prison security rules,
unlawful cell searches, strip searches, interference with mail, confiscation of electronic devices,
denial of medical treatment, verbal abuse by staff, ineffective assistance of counsel, retaliation,
all dismissed for failure to state a claim)
Anderson v. DaCosta, Civil Action No. 10-5835 (PGS), UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY, 2011 U.S. Dist. LEXIS 61776, June 1, 2011,
Decided, June 1, 2011, Filed, NOT FOR PUBLICATION (Transfer to prison facility and
subjected to prison conditions, mail restrictions, pat and cell searches, a leaking ceiling, bed bug
infestation, and the confiscation of electronic equipment, all dismissed for failure to state a
claim)
Wolfe v. Velez, Civil Action No. 10-2083 (PGS), UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY, 2011 U.S. Dist. LEXIS 40624, April 4, 2011,
Decided, April 4, 2011, Filed, NOT FOR PUBLICATION (transfer to a prison facility,
subjected to prison regulations, punitive conditions of confinement, denied law library access,
denial of treatment, dismissed for failure to state a claim.)
It is clear that the courts are comfortable with SVPs being treated substantially like
prisoners. Given the decisions discussed above, it is hard to conceive what sort of deprivation
would be sufficient for a resident to succeed in tipping the scales in the Wolfish “balancing test”
favorably toward residents. It seems unlikely in the extreme that anyone will succeed in
challenging conditions as punitive within the foreseeable future. As long as the State’s apparent
intent (punitive or not) in impinging upon a resident’s rights carries such weight, then almost

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any action, if it is interpreted to be rationally related to a legitimate penological or therapeutic
objective, will be permitted.
SHAM TREATMENT
What kind of treatment, if any, SVPs should receive is far from clear. The caselaw is
not completely consistent, but it is accurate to say that that not much is required. For those who
have a condition for which there is no known effective treatment, none is required.
In Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), a
closely divided Supreme Court held that there was no impediment, at least under
the federal Constitution, to a state "civilly detaining those for whom no treatment
is available, but who nevertheless pose a danger to others." Id. at 366, 117 S.Ct. at
2084, 138 L.Ed.2d at 517. In his critical concurring opinion, Justice Kennedy
observed that "[i]f the object or purpose of the Kansas law had been to provide
treatment but the treatment provisions were adopted as a sham or mere pretext,
there would have been an indication of the forbidden purpose to punish," the
hallmark of an ex post facto law. Id. at 371, 117 S.Ct. at 2087, 138 L.Ed.2d at
521. However, Justice Kennedy found that the Kansas law, with its various
protections, including yearly review, fell within the tradition of permitting
confinement of persons who "by reason of a mental disease or mental
abnormality, constitute a real, continuing, and serious danger to society." Id. at
372, 117 S.Ct. at 2087, 138 L.Ed.2d at 521.
In re Commitment of E.S.T., 371 N.J. Super. 562, 577 (App.Div. 2004).
The Kansas Supreme Court, in In re Care & Treatment of Hendricks, 259
Kan. 246, 258 (Kan. 1996), said:
It is clear that the overriding concern of the legislature is to continue the
segregation of sexually violent offenders from the public. Treatment with the goal
of reintegrating them into society is incidental, at best. The record reflects that
treatment for sexually violent predators is all but nonexistent. The legislature
concedes that sexually violent predators are not amenable to treatment under
K.S.A. 59-2901 et seq. If there is nothing to treat under 59-2901, then there is no
mental illness. In that light, the provisions of the Act for treatment appear
somewhat disingenuous.

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The Supreme Court of the United States, in reviewing the Kansas high court’s
decision, came to an entirely different conclusion:
We have explained that the States enjoy wide latitude in developing treatment
regimens. Youngberg v. Romeo, 457 U.S. 307, 317, 73 L. Ed. 2d 28, 102 S. Ct.
2452 (1982) (observing that the State "has considerable discretion in
determining the nature and scope of its responsibilities"). In Allen, for example,
we concluded that "the State serves its purpose of treating rather than punishing
sexually dangerous person by committing them to an institution expressly
designed to provide psychiatric care and treatment." 478 U.S. at 373 (emphasis
in original omitted). By this measure, Kansas has doubtless satisfied its
obligation to provide available treatment.
Kansas v. Hendricks, 521 U.S. 346, 368 fn. 4; 117 S. Ct. 2072; 138 L. Ed. (1997).
As to the propriety of committing individuals for whom there is no known effective
psychiatric treatment, the Hendricks court was clear:
Accepting the Kansas court's apparent determination that treatment is not possible
for this category of individuals does not obligate us to adopt its legal conclusions.
We have already observed that, under the appropriate circumstances and when
accompanied by proper procedures, incapacitation may be a legitimate end of the
civil law. Accordingly, the Kansas court's determination that the Act's "overriding
concern" was the continued "segregation of sexually violent offenders" is
consistent with our conclusion that the Act establishes civil proceedings,
especially when that concern is coupled with the State's ancillary goal of
providing treatment to those offenders, if such is possible. While we have upheld
state civil commitment statutes that aim both to incapacitate and to treat, we have
never held that the Constitution prevents a State from civilly detaining those for
whom no treatment is available, but who nevertheless pose a danger to others.
Id. at 365-66. (Citations omitted)
So, in Hendricks, the court found that treatment offered was sufficient, notwithstanding
that the Kansas Supreme Court had found that “the provisions of the Act for treatment appear
somewhat disingenuous.” Apparently, the record had been expanded, as to the available
treatment, on certiorari. Further, the Hendricks court held that the unavailability of an effective
treatment for a disorder which rendered an individual dangerous to the community did not rule
out commitment; it was proper to incapacitate that person for the good of the community alone.
That does not mean that sham treatment can never be proven and remedied. However, the
analysis adopted by the Supreme Court relies rather more on whether there was a legislative

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intention to provide treatment than on how much and what kind of treatment is actually
delivered. For instance, as a threshold matter, an SVP statute is analyzed under statutory
construction rules to determine whether it is civil or criminal:
The categorization of a particular proceeding as civil or criminal "is first of all a
question of statutory construction." Allen, 478 U.S. at 368.We must initially
ascertain whether the legislature meant the statute to establish "civil" proceedings.
If so, we ordinarily defer to the legislature's stated intent. Here, Kansas' objective
to create a civil proceeding is evidenced by its placement of the Sexually Violent
Predator Act within the Kansas probate code, instead of the criminal code, as well
as its description of the Act as creating a "civil commitment procedure." Kan.
Stat. Ann., Article 29 (1994) ("Care and Treatment for Mentally Ill Persons"), §
59-29a01 (emphasis added). Nothing on the face of the statute suggests that the
legislature sought to create anything other than a civil commitment scheme
designed to protect the public from harm.
Kan. v. Hendricks, 521 U.S. 346, 361 (U.S. 1997).
Once the statute has been determined to be civil, the legislative intent is further analyzed:
Indeed, we have been informed that an August 28, 1995, hearing on Hendricks'
petition for state habeas corpus relief, the trial court, over admittedly conflicting
testimony, ruled that: "The allegation that no treatment is being provided to any of
the petitioners or other persons committed to the program designated as a sexual
predator treatment program is not true. I find that they are receiving treatment."
App. 453-454. Thus, to the extent that treatment is available for Hendricks'
condition, the State now appears to be providing it. By furnishing such treatment,
the Kansas Legislature has indicated that treatment, if possible, is at least an
ancillary goal of the Act, which easily satisfies any test for determining that the
Act is not punitive.
Kan. v. Hendricks, 521 U.S. 346, 368 fn.4 (U.S. 1997)(emphasis added.)
So, in terms of required treatment, the legislative intent is a significant part of the
determination whether the statute is unconstitutional for failing to provide for treatment.
Treatment is deemed to be intended when statutory language requires or recommends it.
Treatment does not have to be the primary goal of an SVP statute; it may be an ancillary goal.
Hendricks did little to provide a yardstick for how much treatment is sufficient. It appears that
the Supreme Court has no intention of trying to evaluate the type, amount or efficacy of SVP
treatment regimens. Generally, no treatment is unacceptable (unless there is no known

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efficacious treatment for a particular condition), but a little treatment is probably enough. What
the constitutionally minimum amount and type of treatment are remains unclear. There is,
however, some guidance on this issue:
In Turay v. Seling, the U.S. District Court for the Western District of Washington
determined that the Center did not provide constitutionally adequate treatment to
its residents. The Center's staff lacked the necessary certification to provide sex
offender treatment, the units in which residents were housed were not appropriate
for individuals who needed mental health treatment, and obtaining release from
the Center was not possible. A court-appointed resident advocate and
psychologist concluded that because the conditions at the Center had not changed
over a substantial number of years, he suspected that the Center was "designed
and managed, either overtly or covertly, to punish and confine [individuals] to a
life sentence without any hope of release to a less restrictive setting.
Promises to Keep: The Continued Denial of Constitutional Rights to Sexually Violent
Predators, Amy Jurgensmeier, 41 Washburn L.J. 667, 683.
The Turay litigation resulted in an injunction against the State and court oversight
of its SVP program. This oversight generated a number of opinions related to the nature
and sufficiency of the treatment provided. See, e.g., Turay v. Seling, 108 F. Supp. 2d
1148 (W.D. Wash. 2000). The Turay court addressed the sufficiency of treatment issue
on a number of occasions over more than a decade and a close review of that record
would be worthwhile if litigation on the treatment issue is contemplated.

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RELEASE
§ 30:4-27.32. Order authorizing continued involuntary commitment
b. If the court finds that the person is not a sexually violent predator, the court
shall so order. A person who is serving a term of incarceration shall be returned to
the appropriate State, county or local authority to complete service of the term of
incarceration imposed until released in accordance with law, and any other person
shall be discharged by the facility within 48 hours of the court's verbal order or by
the end of the next working day, whichever is longer, with a discharge plan
prepared pursuant to section 14 [C.30:4-27.37] of this act.
In re Civil Commitment of E.D., 353 N.J. Super. 450, 803 A.2d 166, 2002 N.J.
Super. LEXIS 378 (App.Div. 2002), remanded by In Re E.D., 183 N.J. 536, 874 A.2d
1075, 2005 N.J. LEXIS 608 (2005), held, among other important things, that the court
had inherent authority to order the conditional release of a committee without the
recommendation of the Department of Human Services.
The statute does not contain language which allows the judge to impose
conditions upon discharge once a person is determined by the court to no
longer be a sexually violent predator. In this respect, the SVPA does not
mirror the statute which was upheld in Kansas v. Hendricks, 521 U.S. 346,
117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), which expressly gives the trier of
fact the right to conditionally release a committee. See Kan. Stat. Ann., §§
59-29(a)(8) and 59-29(a)(18). Given the statutory language of the SVPA,
the State does not argue that the act provides the authority for the hearing
judge to order a conditional discharge. Rather, the State submits that the
right to conditionally discharge a person who has been committed under the
SVPA is an inherent power of the court. We agree.
Id. at 453.
Importantly, in the course of its discussion of conditional release, the E.D. court
approved the position (for the first time in a published case) that a sexually violent
predator was not entitled to less restrictive conditions of confinement than the STU.
E.D. further argues that our unpublished decisions in In re Commitment of
S.R., No. A-923-00 (App.Div. February 6, 2000), and In re Commitment of
R.W., No. A-1230-00 (App. Div. January 30, 2002), limit the alternatives to

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release when the term of commitment is completed. Such a reading of these
cases is too narrow. S.R. and R.W. are distinguishable. In both cases we
were presented with the question of whether the court has the authority to
order that a sexually violent predator be placed in a facility less restrictive
than the NRU. S.R. at 28-32; R.W. at 12-15. Relying on the language of
N.J.S.A. 30:4-27.32(a), which requires that sexually violent predators be
housed in a "facility designated for [their] custody, care and treatment" by
the Department of Corrections, we found that the trial judge had no
authority to place the offenders in a less restrictive facility. See also
N.J.S.A. 30:4-27.25(d). Our rulings were predicated upon public safety
considerations. S.R. at 31-32. In S.R. we said: "In our view the legislature
has decided . . . in the interest of public safety, that the appropriate
environment for a committee under the SVPA is a designated secure
custodial facility operated by the Department of Corrections." Id. at 32
(citing N.J.S.A. 30:4-27.34(a) (emphasis added); see also R.W. at 20
(finding that public safety considerations support the security requirement
of having all committees under the SVPA housed in approved facilities).
Here, just as in S.R. and R.W., public safety considerations underpin our
decision to allow the hearing judge to impose conditions on a person
previously confined under the SVPA upon that person's discharge.
Id. at 457-458.
Citing State v. Fields, 77 N.J. 282, 390 A.2d 574 (1978), the court held that “once
the legal standard for commitment no longer exists, the committee is subject to release.”
Following Fields and State v. Carter, 64 N.J. 382, 386, 316 A.2d 449 (1974), overruled
on other grounds by State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975) the court found that
the release “must proceed in gradual stages.” E.D., supra, at 455.
As the level of dangerousness posed by the committee decreases, he should be
afforded the opportunity to demonstrate his ability to cope responsibly with
the stresses of normal everyday life with diminishing degrees of supervision.
Only after the committee has progressed to the point where he has proven that
he can function in normal society with minimal supervision should
consideration be given to unconditional release. This process of gradual de-
escalation will substantially minimize the risk of erroneous determinations of
non-dangerousness and will thus protect the State's compelling interest in
maintaining the safety and security of its citizens. [State v. Fields, 77 N.J. at
303, 390 A.2d 574.] We are convinced that the same rationale applies to
commitment under the SVPA.
Id.

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In In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501, 839 A.2d 922 (App. Div.),
certif. denied, In re Commitment of J.J.F., 179 N.J. 373, 845 A.2d 1255 (2004), the court held
that the respondent has the right to present evidence that, if certain conditions are imposed upon
release, his likelihood of reoffense would fall below the highly likely standard. The trial court’s
consideration of such evidence is mandatory.
The appellant's argument is that although JJF meets the criteria for
continued commitment if he does not receive and comply with treatment, a
properly developed record might possibly support a finding that with
appropriate conditions for treatment and with supervision, he does not meet
the criteria for commitment. That is, with treatment and a sound conditional
release plan, he might not be highly likely to reoffend under the third
prong. We conclude that such conditional release should always be a
consideration, if properly documented and supported. This is an extension
of E.D. but a logical and necessary one in view of the potential alternative
of permanent confinement. The consequences "may be so severe that a
[committee] may be confined for the remainder of his or her life." State v.
Bellamy, 178 N.J. 127, 139, 835 A.2d 1231 (2003) According to JJF, E.D.
requires the judge to consider a conditional release in examining the third
element of a sexually violent predator, the degree of danger to the health
and safety of the community. We disagree with JJF that E.D. directly stands
for this proposition, but we agree with his contention that we should take
the next inferential step which E.D. suggests: the trial judge should
consider conditions imposed on JJF that would substantially reduce the
likelihood of future acts of sexual violence. When the evidence suggests a
potential for defeating this third prong under appropriate conditional release
terms, we conclude the judge has the authority and the responsibility to
consider the conditions, and factor that evidence into a determination of
whether the third prong is met.
Id. at 500-501.
In this matter now on appeal JJF presented no expert testimony or other
evidence of a discharge plan to the judge. Nor did he present any such offer
of proof preserved under R. 1:7-3. See State v. Millett, 272 N.J. Super. 68,
100, 639 A.2d 352 (App.Div.1994). We conclude that the trial judge does
not have to reconsider these consolidated commitment matters, but must act
consistently with this decision in all future review hearings.
Id. at 502.

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RETURN TO CUSTODY AND COMMITMENT OF
A CONDITIONALLY RELEASED PERSON
In I/M/O The Commitment of E.D., 183 N.J. 536; 874 A.2d 1075;2005 N.J.
LEXIS 608 (App. Div. 2005), our Supreme Court addressed the procedure that should be
used when a conditionally discharged person is accused of violating the terms of the
discharge. The court defined the specificity and timing of notice to the returned person, after he
has been returned to the facility. It also held that a mere violation of a condition of discharge is
not a sufficient basis for recommitment. The court may commit, continue the current terms, or
modify the terms. The court did not otherwise interpret the statutory scheme for returning a
conditionally released person to custody and committing him, but merely quoted it with
approval:
The Act expressly directs that the court should be notified if a person who
has been conditionally discharged fails to meet the terms of the discharge
order. In that event, the court shall issue an order directing that the person
be taken to a facility designated for the custody, care and treatment of
sexually violent predators for an assessment. The court shall determine, in
conjunction with the findings of the assessment, if the person needs to be
returned to custody and, if so, the person shall be returned to the designated
facility for the custody, care and treatment of sexually violent predators.
The court shall hold a hearing within 20 days of the day the person was
returned to custody to determine if the order of conditional discharge
should be vacated. [N.J.S.A. 30:4-27.32(c)(3).]
Id. at 547
We now hold that due process requires the State to give the committee
written notice of each asserted violation, and that prior to recommitment
under the Act the State must prove by clear and convincing evidence the
person is highly likely to reoffend.
Id. at 540.
At a minimum, to comply with the requirements of due process, prior to a
revocation hearing under the Act, the person must be given written notice
of each alleged violation sufficiently in advance of the court proceeding to
provide a reasonable opportunity to prepare a defense. In essence, due

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process requires that notice be given of each alleged violation so the person
may attempt to explain or refute the charges.
Id. at 548.
It should be obvious that clear and convincing proof of a violation of a term
of conditional discharge will not necessarily mean that the State has
satisfied its burden to recommit. The trial court may conclude that despite
the proof of the violation, the same terms should be continued or other
terms of conditional discharge should be imposed, and again place the
committee on conditional discharge. It is the role of the trial court "to 'mold'
an appropriate order based upon" the court's evaluation of the evidence.
Fields, supra, 77 N.J. at 302, 390 A.2d 574.
Id. at 551.

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PSYCHOLOGY IN SEXUAL VIOLENT PREDATOR LITIGATION
In order to commit an alleged sexual predator, the State must prove that he suffers from a
“mental abnormality.” "Mental abnormality" means a mental condition that affects a person's
emotional, cognitive or volitional capacity in a manner that predisposes that person to commit
acts of sexual violence. N.J.S.A. 30:4-27.26. This must be proven through the testimony of a
psychiatrist. Psychiatrists typically refer to the current version of the Diagnostic and Statistical
Manual (DSM)1 in developing a diagnosis. For the most part, in these matters, they use only a
few DSM diagnoses, alone or in combination, to describe the necessary mental abnormality.
The diagnostic criteria for these diagnoses are as follows:
CAUTIONARY STATEMENT FOR DSM IV - TR
The specified diagnostic criteria for each mental disorder are offered as guidelines for making
diagnoses, because it has been demonstrated that the use of such criteria enhances agreement
among clinicians and investigators. The proper use of these criteria requires specialized clinical
training that provides both a body of knowledge and clinical skills.
These diagnostic criteria and the DSM-IV Classification of mental disorders reflect a consensus
of current formulations of evolving knowledge in our field. They do not encompass, however, all
the conditions for which people may be treated or that may be appropriate topics for research
efforts.
The purpose of DSM-IV is to provide clear descriptions of diagnostic categories in order to
enable clinicians and investigators to diagnose, communicate about, study, and treat people with
various mental disorders. It is to be understood that inclusion here, for clinical and research
purposes, of a diagnostic category such as Pathological Gambling or Pedophilia does not imply
that the condition meets legal or other nonmedical criteria for what constitutes mental disease,
mental disorder, or mental disability. The clinical and scientific considerations involved in
categorization of these conditions as mental disorders may not be wholly relevant to legal
judgments, for example, that take into account such issues as individual responsibility, disability
determination, and competency.
1 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text
Revision (DSM-IV-TR), is the current version. DSM V is expected to be published
shortly.

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Paraphilias
 Sexual and Gender Identity Disorders
 mental disorder
These mental disorders are characterized by sexual fantasies, urges, or behaviors involving non-
human objects (coprophilia, Fetishism, Transvestic Fetishism), suffering or humiliation (Sexual
Sadism, Masochism), children (Pedophilia) or other non-consenting person (Voyeurism,
Frotteurism, Exhibitionism).
Members:
 coprophilia
 Exhibitionism
 Fetishism
 Frotteurism
 Sexual Masochism
 Sexual Sadism
 Transvestic Fetishism
 Voyeurism
See also:
 Sexual Deviation
SEXUAL SADISM
 DSM-IV replaced by DSM-IV-TR: changes in diagnostic criteria
 mental disorder
 mental disorder » Sexual Deviation
 mental disorder » Paraphilias
 Sexual and Gender Identity Disorders » Paraphilias
Individuals with this Paraphilia use sexual fantasies, urges, or behaviors involving infliction of
pain, suffering or humiliation to enhance or achieve sexual excitement. Richard von Krafft-Ebing
may have introduced the term.
Diagnostic criteria for 302.84 Sexual Sadism
(DSM IV - TR)
(cautionary statement)
A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual
urges, or behaviors involving acts (real, not simulated) in which the psychological or
physical suffering (including humiliation) of the victim is sexually exciting to the person.
B. The person has acted on these urges with a nonconsenting person, or the sexual urges or
fantasies cause marked distress or interpersonal difficulty.

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PEDOPHILIA
 DSM-IV replaced by DSM-IV-TR: changes in diagnostic criteria
 mental disorder
 mental disorder » Sexual Deviation
This Paraphilia is characterized by sexual activity with a child, usually age 13 or younger, or in
the case of an adolescent, a child 5 years younger than the pedophile.
Diagnostic criteria for 302.2 Pedophilia
(DSM IV - TR)
A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual
urges, or behaviors involving sexual activity with a prepubescent child or children
(generally age 13 years or younger).
B. The person has acted on these urges, or the sexual urges or fantasies cause marked
distress or interpersonal difficulty.
C. The person is at least age 16 years and at least 5 years older than the child or children in
Criterion A.
Note: Do not include an individual in late adolescence involved in an ongoing sexual relationship
with a 12- or 13-year-old.
Specify if:
Sexually Attracted to Males
Sexually Attracted to Females
Sexually Attracted to Both
Specify if:
Limited to Incest
Specify type:
Exclusive Type (attracted only to children)
Nonexclusive Type
PERSONALITY DISORDER

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 mental disorder
Everyone has a personality with character traits such as stinginess, generosity, arrogance and
independence. But when these traits are rigid and self-defeating, they may interfere with
functioning and even lead to psychiatric symptoms. Personality traits are formed by early
adulthood, persist throughout life and affect every aspect of day to day behavior. Individuals
with personality disorders often blame others for their problems.
Although professionals identify distinct personality disorders (anti-social, borderline,
schizotypal, et al), some personality disordered individuals may not fit in a particular category
and yet may clearly deserve this label.
Although classified as mental disorders they may be classified separately and distinguished from
the Axis I Clinical Syndromes for some purposes.
General diagnostic criteria for a Personality Disorder
(DSM IV - TR)
A. An enduring pattern of inner experience and behavior that deviates markedly from the
expectations of the individual's culture. This pattern is manifested in two (or more) of the
following areas:
(1) cognition (i.e., ways of perceiving and interpreting self, other people, and events)
(2) affectivity (i.e., the range, intensity, lability, and appropriateness of emotional
response)
(3) interpersonal functioning
(4) impulse control
B. The enduring pattern is inflexible and pervasive across a broad range of personal and
social situations.
C. The enduring pattern leads to clinically significant distress or impairment in social,
occupational, or other important areas of functioning.
D. The pattern is stable and of long duration and its onset can be traced back at least to
adolescence or early adulthood.
E. The enduring pattern is not better accounted for as a manifestation or consequence of
another mental disorder.
F. The enduring pattern is not due to the direct physiological effects of a substance (e.g., a
drug of abuse, a medication) or a general medical condition (e.g., head trauma).

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ANTISOCIAL PERSONALITY DISORDER
 mental disorder
 mental disorder » Personality Disorder
 Personality Disorder » Cluster B
Individuals with this Cluster B Personality Disorder in their actions regularly disregard and
violate the rights of others. These behaviors may be aggressive or destructive and may involve
breaking laws or rules, deceit or theft.
Diagnostic criteria for 301.7 Antisocial Personality Disorder
(DSM IV - TR)
A. There is a pervasive pattern of disregard for and violation of the rights of others
occurring since age 15 years, as indicated by three (or more) of the following:
(1) failure to conform to social norms with respect to lawful behaviors as indicated by
repeatedly performing acts that are grounds for arrest
(2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for
personal profit or pleasure
(3) impulsivity or failure to plan ahead
(4) irritability and aggressiveness, as indicated by repeated physical fights or assaults
(5) reckless disregard for safety of self or others
(6) consistent irresponsibility, as indicated by repeated failure to sustain consistent
work behavior or honor financial obligations
(7) lack of remorse, as indicated by being indifferent to or rationalizing having hurt,
mistreated, or stolen from another
B. The individual is at least age 18 years.
C. There is evidence of Conduct Disorder with onset before age 15 years.
D. The occurrence of antisocial behavior is not exclusively during the course
ofSchizophrenia or a Manic Episode.
CONDUCT DISORDER
 mental disorder
 Attention-Deficit and Disruptive Behavior Disorders
This mental disorder may be diagnosed when a child seriously misbehaves with aggressive or
nonaggressive behaviors against people, animals or property that may be characterized as

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belligerent, destructive, threatening, physically cruel, deceitful, disobedient, or dishonest. This
may include stealing, intentional injury, and forced sexual activity.
Diagnostic criteria for 312.8 Conduct Disorder
(DSM IV - TR)
(new code as of 10/01/96: 312.xx)
A. A repetitive and persistent pattern of behavior in which the basic rights of others or major
age-appropriate societal norms or rules are violated, as manifested by the presence of three
(or more) of the following criteria in the past 12 months, with at least one criterion present
in the past 6 months:
Aggression to people and animals
(1) often bullies, threatens, or intimidates others
(2) often initiates physical fights
(3) has used a weapon that can cause serious physical harm to others (e.g., abat, brick,
broken bottle, knife, gun)
(4) has been physically cruel to people
(5) has been physically cruel to animals
(6) has stolen while confronting a victim (e.g., mugging, purse snatching, extortion,
armed robbery)
(7) has forced someone into sexual activity
Destruction of property
(8) has deliberately engaged in fire setting with the intention of causing serious damage
(9) has deliberately destroyed others' property (other than by fire setting)
Deceitfulness or theft
(10) has broken into someone else's house, building, or car
(11) often lies to obtain goods or favors or to avoid obligations (i.e., "cons" others)
(12) has stolen items of nontrivial value without confronting a victim (e.g., shoplifting,
but without breaking and entering; forgery)
Serious violations of rules
(13) often stays out at night despite parental prohibitions, beginning before age 13 years
(14) has run away from home overnight at least twice while living in parental or
parental surrogate home (or once without returning for a lengthy period)
(15) is often truant from school, beginning before age 13 years

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B. The disturbance in behavior causes clinically significant impairment in social, academic,
or occupational functioning.
C. If the individual is age 18 years or older, criteria are not met for Antisocial Personality
Disorder.
Specify type based on age at onset:
Childhood-Onset Type: onset of at least one criterion characteristic of Conduct Disorder
prior to age 10 years (new code as of 10/01/96: 312.81)
Adolescent-Onset Type: absence of any criteria characteristic of Conduct Disorder prior to
age 10 years (new code as of 10/01/96: 312.82)
(new code as of 10/01/96: 312.89 Unspecified Onset)
Specify severity:
Mild: few if any conduct problems in excess of those required to make the diagnosis and
conduct problems cause only minor harm to others
Moderate: number of conduct problems and effect on others intermediate between "mild"
and "severe"
Severe: many conduct problems in excess of those required to make the diagnosis or
conduct problems cause considerable harm to others
SUBSTANCE ABUSE
 mental disorder
 mental disorder » Substance-Related Disorders
 mental disorder » Substance Use Disorder
 mental disorder » Substance-Related Disorders » Substance Use Disorder
When repeated use of alcohol or other drugs leads to problems but does not include compulsive
use or addiction, and stopping the drug does not lead to significant withdrawal symptoms the
term substance abuse applies. This, and Substance Dependence, are considered substance use
disorders.
Harmful use of a specific psychoactive substance. The term also applies to one category of
psychoactive Substance Use Disorder. While recognizing that "abuse" is part of present
diagnostic terminology, ASAM recommends that an alternative term be found for this purpose
because of the pejorative connotations of the word "abuse."
Excerpts with permission from Graham, Allan W. & Schultz, Terry K. (Editors) (American
Society of Addiction Medicine):Principles of Addiction Medicine

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Diagnostic criteria for Substance Abuse
(DSM IV - TR)
A. A maladaptive pattern of substance use leading to clinically significant impairment or
distress, as manifested by one (or more) of the following, occurring within a 12-month
period:
(1) recurrent substance use resulting in a failure to fulfill major role obligations at
work, school, or home (e.g., repeated absences or poor work performance related to
substance use; substance-related absences, suspensions, or expulsions from school;
neglect of children or household)
(2) recurrent substance use in situations in which it is physically hazardous (e.g.,
driving an automobile or operating a machine when impaired by substance use)
(3) recurrent substance-related legal problems (e.g., arrests for substance-related
disorderly conduct)
(4) continued substance use despite having persistent or recurrent social or
interpersonal problems caused or exacerbated by the effects of the substance (e.g.,
arguments with spouse about consequences of Intoxication, physical fights)
B. The symptoms have never met the criteria for Substance Dependence for this class of
substance.
SUBSTANCE DEPENDENCE
 mental disorder
 mental disorder » Substance-Related Disorders
 mental disorder » Substance Use Disorder
 mental disorder » Substance-Related Disorders » Substance Use Disorder
When an individual persists in use of alcohol or other drugs despite problems related to use of
the substance, substance dependence may be diagnosed. Compulsive and repetitive use may
result in tolerance to the effect of the drug and withdrawal symptoms when use is reduced or
stopped. This, along with Substance Abuse are considered Substance Use Disorders.
Diagnostic criteria for Substance Dependence
(DSM IV - TR)
A maladaptive pattern of substance use, leading to clinically significant impairment or distress,
as manifested by three (or more) of the following, occurring at any time in the same 12-month
period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of the substance to achieve Intoxication or
desired effect
(b) markedly diminished effect with continued use of the same amount of the substance

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(2) Withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for the substance (refer to Criteria A and B
of the criteria sets for Withdrawal from the specific substances)
(b) the same (or a closely related) substance is taken to relieve or avoid withdrawal
symptoms
(3) the substance is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control substance use
(5) a great deal of time is spent in activities necessary to obtain the substance (e.g., visiting
multiple doctors or driving long distances), use the substance (e.g., chain-smoking), or
recover from its effects
(6) important social, occupational, or recreational activities are given up or reduced because
of substance use
(7) the substance use is continued despite knowledge of having a persistent or recurrent
physical or psychological problem that is likely to have been caused or exacerbated by the
substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or
continued drinking despite recognition that an ulcer was made worse by alcohol
consumption)
Specify if:
With Physiological Dependence: evidence of tolerance or withdrawal (i.e., either Item 1 or
2 is present)
Without Physiological Dependence: no evidence of tolerance or withdrawal (i.e., neither
Item 1 nor 2 is present)
Course specifiers (see text for definitions):
Early Full Remission
Early Partial Remission
Sustained Full Remission
Sustained Partial Remission
On Agonist Therapy
In a Controlled Environment
IN A CONTROLLED ENVIRONMENT
Criteria for In a Controlled Environment specifier
(DSM IV - TR)

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This specifier is used if the individual is in an environment where access to alcohol and
controlled substances is restricted, and no criteria for Dependence or Abuse have been met for at
least the past month. Examples of these environments are closely supervised and substance-free
jails, therapeutic communities, or locked hospital units.
***
Antisocial Personality Disorder and Substance Abuse or Dependence, alone, do not
predispose one to sexual offense. However, when diagnosed in tandem with paraphilia, they are
said to enhance the likelihood of inappropriate sexual behavior. Conduct Disorder is a required
predicate to a diagnosis of Antisocial Personality Disorder. Other diagnoses are only rarely seen
in SVP proceedings.2
Typically, the courts accept these diagnoses as sufficient to establish a mental
abnormality, particularly if there is evidence of relatively recent criminal or simply inappropriate
sexual acting out. However, depending on the nature of the offense, recent acting out is not
considered necessary, particularly if the defendant has not received, or effectively participated in,
sexual offense specific therapy (SOST). Offenses as distant as twenty or more years in the past
have been found to be sufficient evidence of likely reoffense when considered in the context of a
paraphilia diagnosis.
In my experience, which includes representing defendants in hundreds of SVP
proceedings, effective cross-examination of State psychiatrists and psychologists is extremely
difficult. Psychiatry and psychology are social, not physical, sciences and far from exact. Two
psychiatrists can, and often do, arrive at diametrically opposed conclusions and both can usually
justify their conclusions within the context of their discipline. Therefore, it is difficult, and very
2 See, Generally, Use of DSM Paraphilia Diagnoses In Sexually Violent Predator Commitment
Cases, Michael B. First, M.D. And Robert L. Halon, Ph.D., J Am Acad Psychiatry Law
36:4:443-454 (2008).

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rare, to succeed in undermining a stated diagnosis. For instance, psychiatrists have referred to
the DSM as the “bible” of diagnosis, or as merely a set of “guidelines” for diagnosis, depending
upon which description furthers their diagnostic conclusions. These experts are slippery
characters indeed.
The best approach to cross-examination of these experts is to pursue any factual errors in
their reports or testimony. A series of such errors can combine to make the witness seem
negligent. Cross-examination on the diagnosis itself is difficult since the expert can typically
interpret the DSM, or even depart from it, to support his diagnosis, and still seem plausible.
Long cross-examinations are contraindicated, since they give the expert the opportunity to
further explain and expand upon his direct testimony. I recommend a relatively short cross,
using leading questions which you are sure will elicit positive responses. Try to make your case
through your own experts.

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THE ADMISSABILITY OFACTUARIALS
In 2005, when the Illinois Supreme Court approved the use of actuarials such at the Static
99 and the MnSoST, nineteen states had approved their use and no state outside of Illinois had
deemed inadmissible expert testimony based upon such instruments. See, In re Traynoff, 358 Ill.
App. 3d 430, 446 (Ill. App. Ct. 2d Dist. 2005).
In New Jersey, the Controlling case is In re R.S., 173 N.J. 134 (N.J. 2002), which
adopted the reasoning of In re Commitment of R.S., 339 N.J. Super. 507 (App. Div. 2001). That
opinion included a nineteen-page comprehensive analysis of the testimony, the case law in New
Jersey (particularly prior Megan’s Law decisions), the law in other states and admissibility under
the Frye standard and under N.J.R.E. 702. In re R.S., 173 N.J. 134 (N.J. 2002) and In re
Commitment of R.S., 339 N.J. Super. 507 (App. Div. 2001) have been cited and/or followed in
dozens of subsequent New Jersey appellate decisions, without any criticism. For those inclined
to challenge the use of actuarials in the assistance of psychological/psychiatric predictions of
future dangerousness, a close reading of the court’s meticulous opinion is absolutely necessary.
Although a detailed analysis of the court’s reasoning is beyond the scope of this memorandum,
in deference to those who wish to understand the outlines of the court’s ruling, a number of
excerpts are provided here:
On this appeal, R.S. raises only the issue of the admissibility of the
actuarial assessment instruments. We uphold their admissibility. Our de
novo review of the recordestablishes that the State has met its burden to
demonstrate the tests are reliable for use in this context as an aid in
predicting recidivism.
Id. at 512.
The trial judge had ordered an evidentiary hearing to determine the admissibility
of actuarial predictors of recidivism. The hearing was a battle of heavyweight experts.
Besides Dr. Glenn Ferguson, an STU psychologist, Dr. Dennis Doren testified on behalf

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of the State. On R.S’s behalf appeared Dr. Randy Kurt Otto, Dr. Kay Jackson and Dr.
Frederick Berlin. Extensive testimony was taken. The trial judge found that the Frye standard
had been met and any residual prejudice was dissipated because of the absence of a jury.
The Appellate court, having determined that it would undertake a de novo review
of the issue, began by analyzing prior New Jersey Supreme Court Megan’s Law opinions
allowing the use of actuarials:
Two recent decisions of our Supreme Court, Matter of Registrant G.B., 147
N.J. 62, 685 A.2d 1252 (1996), and Matter of Registrant C.A., 146 N.J. 71,
679 A.2d 1153 (1996), address the use of RRAS assessments in the tier
hearing process under Megan's Law . . . In C.A., the Court held that the
RRAS "is an appropriate and reliable tool" whose use is consistent with the
requirements of the statutes and case law. Id. at 107, 679 A.2d 1153.
Although C.A. involved a proceeding where the rules of evidence did not
apply, the Court's reasoning in C.A. is instructive as to its view of actuarial
instruments in general . . . In G.B., the Court again soundly endorsed the
RRAS, holding that a registrant could not present evidence at a tier hearing
to challenge its predictive validity . . . the Court reasoned that the RRAS "is
only a tool, albeit a useful one" that serves as "a guideline for the court to
follow in conjunction with other relevant and reliable evidence in reaching
an ultimate determination of the risk of reoffense. . . .".
Id. at 531-533.
The court rejectedR.S.’s assertion that the standard should be higher because
SVP commitment was fundamentally more invasive than Megan’s Law registration and
the evidentiary standards were different:
[T]he [G.B.] Court appeared to say that the same evidentiary standards for
admissibility apply whenever a liberty interest is at stake. Under this
reasoning, if the RRAS is "presumptively reliable" at a Megan's Law tier
hearing, it is also presumptively reliable at an SVPA commitment hearing,
especially when used only in conjunction with respectable clinical
testimony, and indeed as merely ancillary thereto . . . In C.A. and G.B., the
Court took notice of the fact that the use of actuarial predictors is at least as
reliable, if not more so, than clinical interviews . . . [a]lso, the Court found
it highly desirable to have a method which provides consistency in risk
determinations . . . For these reasons, we uphold the admissibility and use

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of actuarial instruments at SVPA hearings as a factor in the overall
prediction process under the precedent of C.A. and G.B.
Id. at 533 (citations omitted).
For us to find that the RRAS is not admissible at all in SVPA commitment
hearings would disregard the Court's holdings in C.A. and G.B.
Furthermore, because the testimony before Judge Freedman was
uncontroverted that the RRAS is the least widely used and least
experimentally supported of the relevant actuarial instruments, we conclude
that the other risk assessment tools are admissible as well.
Id. at 534.
The court went on to analyze the applicability of N.J.R.E. 702 and State v. Harvey:
Both parties agree that the experts presented at the hearings in this matter
were properly qualified to offer testimony regarding sex offender risk
assessment. Both parties also agree that the experts' specialized knowledge
was beyond the ken of the average juror and helpful to the court in deciding
the issue of admissibility of actuarial instruments. The sole question, then,
is whether actuarial instruments as indicators of sex offender recidivism
have achieved a state of the art so that an expert's testimony based in part
upon them is sufficiently reliable . . . Although the expert testimony at issue
involves behavioral science, which is concededly subjective and less
tangible than the techniques of physical science, our Court has applied the
same test to its admissibility . . . New Jersey has long recognized that in
order to be admitted into evidence, a novel scientific test must meet the
standard articulated in Frye . . . The test, which has been applied in criminal
and civil cases alike, is whether the specific scientific community generally
accepts the evidence . . . A proponent of a newly-devised scientific
technology can prove its general acceptance in three ways: (1) by expert
testimony as to the general acceptance, among those in the profession, of
the premises on which the proffered expert witness based his or her
analysis; (2) by authoritative scientific and legal writings indicating that the
scientific community accepts the premises underlying the proffered
testimony; and (3) by judicial opinions that indicate the expert's premises
have gained general acceptance. The burden to "clearly establish" each of
these methods is on the proponent. [State v. Harvey, 151 N.J. at 170, 699
A.2d 596 (citations omitted).] . . . To establish that a technology is generally
accepted in the profession, a party need not necessarily show there is a
unanimous belief in the absolute infallibility of the techniques that underlie
the scientific evidence . . . The burden on the proponent of the evidence is
to prove that it is a "non-experimental, demonstrable technique that the

50 | P a g e
relevant scientific community widely, but perhaps not unanimously, accepts
as reliable." Harvey, 151 N.J. at 171, 699 A.2d 596.
Id. at 535 (some citations omitted).
Despite strong opposition from many mental health professionals, the United
States Supreme Court has held that the testimony of psychiatrists and
psychologists bearing on the future dangerousness of an individual is
admissible. . . [The Barefoot v. Estelle] reasoning was followed by the New
Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1, 34, 662 A.2d 367 (1995),
when it found that there is nothing quintessentially inscrutable about a
prediction of future criminal conduct . . . In this matter now before us, the
experts agreed that substantial research has shown that actuarial instruments
may be better predictors of future violence than clinical predictions. The New
Jersey Supreme Court has found as fact that actuarial instruments are at least
as reliable, if not more so, than clinical interviews.
Id. at 537-538 (citations omitted).
With regard to the Frye test standard, the State established that the use of
actuarial instruments is generally accepted by professionals who assess sex
offenders for risks of reoffense . . . There is no question that a substantial
amount of reliability must be assured before scientific evidence may be
admitted. The extensive expert testimony in this matter concerning
validation studies, cross-validation studies, reliability studies, correlation
coefficients, and clinically-derived factors attests to such reliability in this
context, where the actuarials are not used as the sole or freestanding
determinants for civil commitment. They are not litmus tests. There is no
requirement that the actuarial instruments be the best methods which could
ever be devised to determine risk of recidivism. What is required is that
they produce results which are reasonably reliable for their intended
purpose.
Id. at 539 (citations omitted).
The court found no prejudice in using actuarials in a bench trial and rejected the claim
that psychologists were violating their own ethical rules by using them:
SVPA commitment hearings are tried before a judge, not a jury. The court
understands that it is the ultimate decision maker and must reach a
conclusion based upon all of the relevant evidence "psychiatric or
otherwise--according each type such weight as [it] see[s] fit." An
experienced judge who is well-informed as to the character of the actuarial
instruments and who is accustomed to dealing with them is much less likely
to be prejudiced by their admission than a one-case, fact-finding jury would
be. The judge can accord appropriate weight to actuarial assessments in any

SVP Law Memo revised 7-31-12

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SVP Law Memo revised 7-31-12