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Special Hearings

Fletcher Duddy, Chief Counsel

The following is a summary of the operation of The Registration and Notification of Release of Certain Offenders Act, commonly referred to as "Megan's Law. N.J.S.A. 2C:7-1, et seq. This summary is not intended to serve as legal advice. It is intended solely as a summary for the general public. If you have questions about your situation you should seek the assistance of an attorney.

The independent Special Hearings Unit was created in January 1996 to provide mandated representation in Megan's Law "tier classification" hearings. The purpose of these hearings is to determine what type of community notification should be disseminated for Megan's Law registrants.

Under Megan's Law - the collective name given to a series of laws governing sex offenders who are living in the community or are about to be released from imprisonment-- law enforcement and the community are notified about the
presence of a sex offender. The process of notification begins with registration of offenders. Persons committing one of the list of offenses covered by the Act are required to register with local law enforcement. The registration process
involves providing law enforcement with information about an offender's background, address, and name of employer.

Based upon the registration background information, local county prosecutors classify registrants as either Tier 1 (low risk), Tier 2 (moderate risk), or Tier 3 (high risk). Once a proposed Tier level and scope of notification is determined, a hearing is scheduled. Community notification is permitted to be disseminated only after a hearing in which a Superior Court Judge determines whether the State's proposed Tier level and scope of notification has been proven "by clear and convincing evidence."

The State provides two types of notification simultaneously for many offenders. The first type of notice is that which is disseminated directly by the State to law enforcement, schools, community groups and/or to individual community members. The second type of notification is that which is disseminated over the Internet via the State's Sex Offender Internet Registry.

Under the direct form of notification, for Tier one offenders, notification is given only to the local police. Tier 2 offenders have direct notification go, in addition to local law enforcement, to schools, daycare centers and other community organizations that provide care for children or adults. Notification under this system can only go to those schools and organizations deemed by a court to be "likely to encounter the registrant." For Tier 3 offenders direct notification goes to all persons and groups receiving Tier 2 notice and to all neighbors of the registrant in the community who a court determines are "likely to encounter" him. Each time a registrant moves to a new residence s/he must re-register with local law enforcement authorities and the direct notification process, following a new hearing, is repeated.

In addition to notice going to persons "likely to encounter" an offender, notification is also disseminated under the State's Sex Offender Internet Registry Act (N.J.S.A. 2C:7-12, et seq.) for offenders who fall into several categories. The Internet Registry contains information pertaining to Tier 3 (high risk) offenders and, with certain exceptions, information pertaining to Tier 2 (moderate risk) offenders for whom a court orders community notification. The Internet Registry contains no information about offenders determined to be a Tier 1 (low risk) and for those Tier 2 (moderate risk) offenders as to whom a court ordered no notification (i.e., Tier 2 offenders with Tier 1 scope of notification). The Internet Registry Act also contains three exceptions. It excludes Tier 2 offenders whose sole offense was committed as 1) a juvenile, 2) an incest offense, or 3) an offense where the victim consented but was underage (e.g. statutory rape). The law also provides for an override that would allow the inclusion on the Internet Registry of a Tier 2 offender who falls under one of the above three exceptions where the State proves by clear and convincing evidence that the risk posed to the general public posed by the offender is substantially similar to that posed by offenders whose risk of re-offense is moderate.

The particular information contained on the Internet Registry is similar but not identical to the information provided in the community notification flyers distributed to those "likely to encounter" an offender. The information currently provided under the Internet Registry includes: the offender's name and any aliases used by the offender; any Megan's Law sex offenses committed by the offender, including a brief description and the date and location of disposition of any such offense; a general description of the offender's modus operandi, if any; the determination of whether the risk of re-offense by the offender is moderate or high; the offender's age, race, sex, date of birth, height, weight, hair, eye color and any distinguishing scars or tattoos; a photograph of the offender and the date on which the photograph was entered into the registry; the make, model, color, year and license plate number of any vehicle operated by the offender; and the county in which the offender resides. The Internet Registry information does not include an offender's street address, zip code, or municipality as the result of an injunction obtained by the Public Defender's Office. In addition the Internet Registry does not include information about an offender's place of employment or schooling which is contained in the State's notification system provided to those "likely to encounter" the offender.

The Special Hearings Unit operates from four regional offices: Trenton (covering Burlington, Hunterdon, Mercer, Somerset and Warren counties); Newark (covering Bergen, Essex, Hudson, Morris, Passaic, and Sussex counties);
Monmouth (covering Middlesex, Monmouth Union and Ocean counties); and Camden (covering Atlantic, Camden, Cape May, Cumberland, Gloucester and Salem counties).

The Unit has also handled class action constitutional challenges to Megan's Law since its inception. These cases include E.B et al. v. Verniero, 119 F.3d 1077 (3d Cir 1998), which held that the State has the burden of proofing a registrant's tier level by clear and convincing evidence in Megan's Law hearings. In addition, the Unit handled the case of Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999), wherein the U. S. Court of Appeal for the Third Circuit held that all New Jersey residents have a protected privacy interest in their home address. As a result of this litigation the State has developed a series of safeguards designed to protect against disclosures of Megan's Law information to persons unauthorized to receive them. Recently, in A.A. v. State of New Jersey, 176 F. Supp. 2d 274 (D.N.J. 2001) a legal challenge to the State's Internet Registry Act, the Public Defender obtained a preliminary injunction excluding all home address information from the Internet Registry.

In addition, Special Hearings Unit attorneys also have addressed the issue of Community Supervision for Life, a provision of Megan's Law which has resulted in registrants being unable to leave the State for any reason, to obtain employment, attend school, or live with family members.