Copyright 2001 American Lawyer Newspapers Group, Inc.
                          New Jersey Law Journal

                               July 23, 2001

LENGTH: 969 words

HEADLINE: Court Pokes Megan's Law Loophole For Young Offenders Who Reform

BYLINE: MICHAEL BOOTH

BODY:
*Recognizing that Megan's Law had perhaps reached the outer boundaries of
logic by subjecting children -- whom it was intended to protect -- to its
harsh penalties, the state Supreme Court tried to square the statute with
New Jersey's policy favoring rehabilitation of youthful offenders.
*In In the Matter of Registrant J.G., A-18-00, Justice Gary Stein, writing
for a unanimous Court, noted that the Legislature had generally intended to
apply Megan's Law to juveniles adjudicated delinquent based on conviction
of sex offenses.
*But, "we shall attempt to harmonize Megan's Law and the Juvenile Code in a
manner that in our view best reflects the legislative objectives underlying
both statutes," the Court added in its decision (digested in this issue at
page 59).
*Under the ruling, registration and notification will end at the age of 18
for offenders who committed a sex crime under the age of 14 if they can
show by clear and convincing evidence that they are not likely to commit
another offense.
*J.G., 17, who at age 10 sexually molested an 8-year-old relative, will
thus be permitted to demonstrate to a judge when he turns 18 that he has
been rehabilitated and should no longer be subjected to Megan's Law.
*Mercer County Superior Court Judge Andrew Smithson had found the boy to be
at a moderate risk of committing another offense and ordered limited
community notification. The Appellate Division upheld the Tier 2
classification but limited notification to the principal, teachers and
guidance counselors at J.G.'s high school. Its order was stayed pending the
outcome of the Supreme Court review.
*"Were we writing on a clean slate, our inclination would be to exclude
juveniles under age fourteen from the sweeping provisions of Megan's Law,"
Stein wrote. "In many instances, sexually improper behavior by such young
children is more a reflection of inadequate adult supervision, immaturity,
inappropriate media exposure, or a prior history of emotional abuse than it
is of irremediable sexually predatory inclinations.
*"Deferring the legislative judgment, however, we have endeavored to strike
a balance that takes into account the youth and immaturity of this
ten-year-old offender and interprets Megan's Law in a manner that is
faithful to the underlying legislative goals," Stein wrote.
*The Court did not address whether juvenile sex offenders over the age of
14 also could ask to be released from their Megan's Law obligations once
they turn 18. Adult offenders can have their registration obligations
ended, and have notification stopped, after 15 years if they have not
committed another offense.
*One of the youth's attorneys, Craig Hubert, says the ruling fairly
balances the goals of Megan's Law and the Code of Juvenile Justice. "The
code has a certain philosophy, one of rehabilitation," says Hubert, a
partner at Hamilton's Brotman, Graziano & Hubert.
*J.G., says Hubert, has been undergoing extensive therapy and will apply to
have his Megan's Law obligations lifted in several months, after he turns
18.
*"It's a good balancing of competing interests," says J.G.'s other lawyer,
James Graziano, an associate at Roseland's Wolff & Samson. "It gives my
client the benefit of what the juvenile justice system is supposed to
accomplish."
*Deputy Attorney General Jessica Oppenheim says the state does not quarrel
with the Court's ruling. She says she believes the Court chose to draw the
line at age 14 because, under the Code of Juvenile Justice, juvenile
defendants under that age cannot be tried as adults.
*In a second Megan's Law ruling last Tuesday, In the Matter of Registrant
M.F. , A-39-00, the Court said the state can notify certain schools and
institutions about the presence of a sex offender without having to show a
likelihood that the offender will appear there (digested in this issue at
page 56).
*The Court unanimously voted to expand the scope of notification, saying
schools should be notified that a sex offender judged to be at a moderate
risk of committing another crime lives nearby, even though he never has
committed offenses at schools or with children.
*The Appellate Division had said the state had an obligation to prove there
was a likelihood the offender would be encountered at the school.
*During oral arguments in May, Oppenheim admitted that the defendant's acts
-- masturbating at a store and in a parking lot -- did not occur near
schools, but said school officials should be allowed to know he lives
nearby.
*Assistant Deputy Public Defender Michael Buncher argued there was no
evidence that M.F. had ever approached a schoolyard or playground with the
intent of committing a sex offense.
*Justice Jaynee LaVecchia said that requiring the state to prove an
offender is likely to show up at a school would "render meaningless the
presumptive effect of the Legislature's language that decreed that once a
registrant is classified as a Tier 2 offender, notification shall be given
to organizations in the community that are in charge of the actual care or
supervision of women or children unless there are presented limiting
circumstances affecting the presumptive assessment of risk of re-offense."

*LaVecchia said, though, that defendants had to be allowed to demonstrate
such limiting circumstances.
*Oppenheim says the Court acted properly in overturning the Appellate
Division's standard of proof. "That would have been an untenable standard
for us to hold to," she says. "We would have to have a crystal ball to say
where an offender is most likely to be."
*Buncher says he can accept the ruling, adding: "I believe we'll be able to
show in a large number of cases ... that the scope of notification should
not be maintained."

LOAD-DATE: July 23, 2001