{"id":4148,"date":"2025-04-16T19:04:21","date_gmt":"2025-04-16T19:04:21","guid":{"rendered":"https:\/\/aielloharris.com\/?p=4148"},"modified":"2025-05-29T20:48:27","modified_gmt":"2025-05-29T20:48:27","slug":"ley-megan-2025-impugnando-la-evaluacion-de-riesgo","status":"publish","type":"post","link":"https:\/\/aielloharris.com\/es\/megans-law-2025-challenging-risk-assessment\/","title":{"rendered":"Ley Megan 2025 \u2013 Impugnaci\u00f3n de la Evaluaci\u00f3n de Riesgos"},"content":{"rendered":"\n<div>\n<div class=\"gb-element-562368d8\">\n<p class=\"wp-block-paragraph\">When a convicted sex offender is placed on the <a href=\"\/practice-areas\/criminal-law\/sex-crimes\/sex-offense-laws\/megans-law\/\">Megan\u2019s Law Registry<\/a> there is a process to determine exactly who within the general public- if anyone; receives notification. If a Registrant disagrees with the scope of notification, they have an absolute right to a hearing in Superior Court. If there is an unfavorable outcome, the Registrant has a right to a reasonably swift Appellate Division review.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">If a Registrant loses that appeal, there may be other ways to revisit the scope of notification.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">For example, if a Registrant &nbsp;relocates to a new residence, or is &nbsp;incarcerated, or if a substantial time has elapsed they may be entitled to a second or even third look at the risk assessment. This may even include removal from the Internet registry.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">This article looks closely at the current state of risk assessment law, mostly through the lens of a recent unpublished decision, Matter of M.J.B., No. A-3963-21, 2023 WL 8801152, at 1 (N.J. Super. Ct. App. Div. Dec. 20, 2023), cert. denied, 258 N.J. 409, 320 A.3d 1102 (2024)<\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><u>BACKGROUND<\/u><\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">Megan\u2019s Law, enacted in New Jersey in 1994, mandates the registration of sex offenders and facilitates community notification to enhance public safety. This legislation emerged following the tragic case of seven-year-old Megan Kanka, who was <a href=\"\/practice-areas\/criminal-law\/sex-crimes\/sexual-assault\/\">sexually assaulted<\/a> and <a href=\"\/practice-areas\/criminal-law\/violent-crimes\/murder\/\">murdered<\/a> by a neighbor with a history of sex offenses.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The law requires individuals convicted of most sex offenses to register with local law enforcement agencies, and it establishes a system for community notification based on the Registrant\u2019s risk of re-offense. The primary objective is to provide communities with information about potentially dangerous sex offenders residing in their vicinity, thereby enabling citizens to take appropriate precautions.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The prosecutor in the county of residence completes a risk assessment using a tool called the Registrant Risk Assessment Scale (RRAS).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The RRAS is based on 13 factors in four areas, including the seriousness of the offense, the Registrant\u2019s offense history, and their personal characteristics.&nbsp;The Registrant\u2019s score on the RRAS determines their <a href=\"\/practice-areas\/criminal-law\/sex-crimes\/sex-offense-laws\/megans-law\/tier-classification-hearing\/\">tier, or category of risk<\/a>. There are three potential risk categories:&nbsp;<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li><strong>Tier 1<\/strong>:&nbsp;Low risk, with a score of 0\u201336.<\/li>\n\n\n\n<li><strong>Tier 2<\/strong>:&nbsp;Moderate risk, with a score of 37\u201373.<\/li>\n\n\n\n<li><strong>Tier 3<\/strong>:&nbsp;High risk, with a score of 74 or higher.<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">The risk finding determines the scope of notification- including whether there is publication on the Internet. The higher the risk, the greater community notification. The Registrant has the right to challenge their tier at a hearing, and it may be possible to have their tier reduced. The prosecutor\u2019s burden of proof is \u201cpreponderance of the evidence\u201d.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">It is noteworthy that New Jersey Courts have concluded Megan\u2019s Law, requiring registration and concomitant community notification, is a regulatory scheme designed to protect the public from recidivistic sexual offenders.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Accordingly, most of the protections afforded criminal defendants arising from both the New Jersey and US Constitutions are not applicable when evaluating Megan\u2019s Law cases. On the other hand, the simultaneously enacted sex offense specific supervision laws: Parole Supervision for Life (PSL)and its earlier legislative analogue, Community Supervision for Life (CSL)&#8211; have long been found to be punitive.<a id=\"_ftnref1\" href=\"#_ftn1\">[1]<\/a><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Thus, the courts treat Megan\u2019s Law and <a href=\"\/practice-areas\/criminal-law\/sex-crimes\/sex-offense-laws\/megans-law\/parole-supervision-for-life-psl-csl\/\">PSL\/CSL<\/a> as distinct legal frameworks, and the constitutional analysis often reflects these distinctions. Ex post facto analysis, for example, is applied in PSL\/CSL cases while Registration laws can apply retroactively.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><u>IN THE MATTER OF REGISTRANT M.J.B<\/u><em>.<\/em><\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">On December 20, 2023, the Appellate Division decided In the Matter of Registrant M.J.B. MJB involved a registered sex offender (Registrant)seeking a change in his risk assessment score. While the unpublished MJB opinion doesn\u2019t break new ground, it does highlight some noteworthy legal issues, and touches upon two interesting questions.<\/p>\n\n\n\n<ol class=\"wp-block-list\">\n<li>Once a Registrant\u2019s Tier designation is confirmed as either T2 or T3 (and there is no appeal or an unfavorable appellate ruling), can they seek a reduction in the future?<\/li>\n\n\n\n<li>Can the RRAS be updated, and if so, after 30 years, is it time for an empirical review of its validity?<\/li>\n<\/ol>\n\n\n\n<h3 class=\"wp-block-heading\"><u>REVISITING A REGISTRANT\u2019S TIER DESIGNATION<\/u><\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">Originally the Court found MJB to be a Tier 2. This would include probable notification to schools and institutions, and possibly internet publication. MJB appealed and was unsuccessful in reducing his risk assessment score. MJB did not <a href=\"\/practice-areas\/criminal-law\/sex-crimes\/sex-offense-laws\/megans-law\/removals-and-appeal\/\">appeal to the New Jersey Supreme Court<\/a>. That, however, did not end MJB\u2019s attempts to reduce his score. Within a short time MJB was back in Court So how was his case reviewed relatively quickly?<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">MJB later moved to a different residence and changed jobs. When a Registrant moves, he is entitled to a new assessment. That is exactly what happened in MJB\u2019s case. His experience begs the question\u2014 what circumstances permit a Registrant to have their score, and scope of notification reviewed for a potential modification, that is, &nbsp;can a Registrant ask the Court for a review where they have not relocated or been released from jail?<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">There are no reported cases where a Registrant, other than those who relocated or returned to their residence after release from custody, applied for a reduction in their RRAS score. But see In re T.H., <a>431 N.J. Super. 529, 533-34 (App. Div. 2013).<\/a><a href=\"#_ftn2\" id=\"_ftnref2\">[2]<\/a> The issue arises infrequently probably because once notification occurs, \u201cthe bell cannot be unrung\u201d. That is, the schools, daycare centers, and community organizations already received the notification\u2014 thus there is a disincentive to return to court.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Nevertheless, a Registrant\u2019s right to a modification of their tier designation seems doubtless if there is evidence of a material change in circumstances that demonstrates reduced risk to the community. There is value, even though the \u201cbell has been rung\u201d, because there may be removal from Internet publication and the sex offender bulletins may be ordered destroyed. It is within this context that our courts have provided some guidance.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Accordingly, upon evidence of a material change in Registrant\u2019s circumstances that demonstrates reduced risk to the community, and unquestionably&#8211; &nbsp;upon relocation, the judge must again review the prosecutor\u2019s proposed scope of notification, the dynamic factors in the RRAS, and any other evidence relevant to the risk of re-offense. In re H.M., N.J. Super. (App. Div. 2001).&nbsp;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">As the Court observed in In re T.H., the passage of time during which a Registrant remains offense free is a dynamic factor demonstrating a diminished risk to the community:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">It is obvious to us that the passage of time after initial assessment without reoffending is as relevant to a reduced likelihood of re-offense as those dynamic criteria which measure progress over time regarding circumstances such as maintaining employment, response to treatment, and residential support. The longer the time within which the Registrant remains incident free, the less likely is the incidence of reoffending. To maintain that this criterion is not reviewable after the passage of time is to ignore the risk categories as defined in criterion seven. Labeling criterion seven as \u201cstatic\u201d under the Supreme Court decision in In re C.A., 146 N.J. 71, 103 (1996), masks the very substance contained within this criterion. . .<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Thus, the risk to the community is diminished, which, correspondingly, may be reflected in the extent of community notification. In re T.H., 431 N.J. Super. at 533, 534.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\"><u>IS THE RRAS ETCHED IN STONE?<\/u><\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">Another issue discussed in MJB is the continuing reliability of the RRAS (Registrant Risk Assessment Scale or RRAS). MJB initially argued that the Attorney General\u2019s risk assessment tool used for the past 30 years, was not reliable. The Court disagreed pointing out that the challenging the validity of the RRAS is not permitted.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Deference is given to the RRAS, and \u201c[o]nly in the unusual case where relevant, material, and reliable facts exist for which the [RRAS] does not account, or does not adequately account, should the [RRAS] score be questioned.\u201d Id. At 82.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">&nbsp;*** *** *** *** *** *** *** *** *** *** ***<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">As we stated in In re Registrant J.G., \u201c[c]hallenges to the [RRAS] itself, or challenges to the weight afforded to any of the individual factors that comprise the [RRAS], are not permitted.\u201d 463 N.J. Super. 263, 276 (App. Div. 2020) (all but first alteration in original) (quoting G.B., 147 N.J. at 85). In J.G., we held challenges to the RRAS might be permitted if \u201cbased on empirical studies or data developed since 1996.\u201d Ibid.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The continuing reliability of the RRAS having been established the MJB court also analyzed whether the Registrant could demonstrate that his risk was meaningfully different from other similarly situated Registrants. This is known as the \u201cheartland\u201d exception.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In seeking a \u201cheartland\u201d exception, a Registrant is required to \u201cestablish that the [RRAS] score for that [particular] Registrant does not accurately reflect the risk of re-offense.\u201d&nbsp;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In \u201cheartland\u201d cases the MJB court reiterated that expert testimony is only allowed in limited circumstances. Nevertheless, the court did permit the Registrant to offer the testimony of Dr. Sean Hiscox.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The court explained that Dr. Hiscox relied on<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u201ca number of actuarial risk assessment tools in [his] report, including the Personality Assessment Inventory (PAI), the Static 99[R], the Stable-2007, the Acute-2007, and the RRAS.\u201d In using these actuarial tools, Dr. Hiscox \u201cscored [M.J.B.] as below-average risk on the Static99[R] and low risk on the Stable-2007 and Acute-2007.\u201d When Dr. Hiscox used the RRAS, he calculated M.J.B. scored forty-three points, which placed M.J.B. \u201cat the low end of the moderate-risk range on that scale.\u201d<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The MJB court was not persuaded: <em>We are satisfied there were no unique circumstances warranting a downward adjustment of M.J.B.\u2019s tier designation under Megan&#8217;s Law \u201cheartland\u201d exception.<\/em><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">What\u2019s interesting is that the court did allow Dr. Hiscox to make a complete record over three days of testimony. They also pointed out that the RRAS could be modified or abandoned, if there is new empirical data. Is this an invitation to make that argument in a future case?<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The tone of the court\u2019s opinion seems to be directed at this very issue. There was significant testimony by Dr. Hiscox regarding arguably more reliable measures of risk. And finally, the Court ended their opinion as follows:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">we note that we are not the Legislature. \u201cWe do not pass judgment on the wisdom of a law or render an opinion on whether it represents sound social policy. That is the prerogative of our elected representatives.\u201d Caviglia v. Royal Tours of Am., 178 N.J. 460, 476 (2004). Registrants should direct requests for implementation of new judicial tools for determining Megan&#8217;s Law tier classifications to the New Jersey Legislature. In so doing, a Registrant would notify the New Jersey&#8217;s Attorney General of their request to modify or eliminate the current tool used for assessing the risk of sexual re- offense and would have an opportunity to present evidence why the RRAS should, or should not, be modified or eliminated.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Revisiting the RRAS was the subject of even greater debate in 2020 in Matter of J.G., 463 N.J. Super. 263, 279\u201380, 232 A.3d 411, 421 (App. Div. 2020). There, the Appellate Division, when evaluating the applicability of the RRAS to Child Sexual Abuse Material (CSAM), stated:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Finally, we do not preclude the possibility that a Registrant could develop the record to challenge the&nbsp;RRAS when it is applied to a&nbsp;one-time&nbsp;child&nbsp;pornography&nbsp;offender. That record, however, was not presented by either J.G. or C.C.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">As the RRAS approaches its 30<sup>th<\/sup> birthday, there should at least be some consideration by the legislature or the Attorney General to revisit the science in this area\u2014 especially in its application to CSAM cases where, by any measure, the RRAS is of minimal utility. Both MJB and Matter of J.G. (2020) discuss this issue in detail.<br><br><\/p>\n\n\n\n<hr class=\"wp-block-separator has-alpha-channel-opacity\"\/>\n\n\n\n<p class=\"wp-block-paragraph\"><a href=\"#_ftnref1\" id=\"_ftn1\">[1]<\/a> Community supervision for life &#8230; is a penal and not a collateral consequence of the sentence.&nbsp; State v. Schubert, 212 N.J. 295, 308, 53 A.3d 1210, 1217 (2012) agreeing with &nbsp;<em>State v. Jamgochian,<\/em>&nbsp;363&nbsp;<em>N.J.Super.<\/em>&nbsp;220, 224, 832&nbsp;<em>A.<\/em>2d 360 (App.Div.2003).&nbsp;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><a href=\"#_ftnref2\" id=\"_ftn2\">[2]<\/a> T.H was incarcerated while his appeal was pending, the appeals court permitted the Registrant to withdraw his appeal and have the trial court re-evaluate his Tier 2 finding expecting that the trial court would recalculate his score because RRAS criterion 7 (length of time since last offense), would have changed. It is not clear if he returned to his original address.<\/p>\n\n\n\n<div>\n<div class=\"bkgd-gradient-light border-m padding-m gb-element-22e0e5d7\">\n<h4 class=\"gb-text gb-text-1620afa4\">Contact Our New Jersey Criminal Lawyers<\/h4>\n\n\n\n<p class=\"wp-block-paragraph\">Contact our New Jersey criminal lawyers today at <strong>(908) 561-5577<\/strong> or submit a request through our <a href=\"\/contact-us\/\">contact form<\/a>.&nbsp;Your initial consultation will take place over the phone, and you can schedule an appointment at one of our <a href=\"\/areas-served\/\">office locations<\/a>&nbsp;across New Jersey.<\/p>\n<\/div>\n<\/div>\n\n\n\n<div style=\"height:40px\" aria-hidden=\"true\" class=\"wp-block-spacer\"><\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>When a convicted sex offender is placed on the Megan\u2019s Law Registry there is a process to determine exactly who within the general public- if anyone; receives notification. If a Registrant disagrees with the scope of notification, they have an absolute right to a hearing in Superior Court. If there is an unfavorable outcome, the &#8230; <\/p>\n<p class=\"read-more-container\"><a title=\"Ley Megan 2025 \u2013 Impugnaci\u00f3n de la Evaluaci\u00f3n de Riesgos\" class=\"read-more button\" href=\"https:\/\/aielloharris.com\/es\/megans-law-2025-challenging-risk-assessment\/#more-4148\" aria-label=\"Leer m\u00e1s sobre Megan\u2019s Law 2025 \u2013 Challenging Risk Assessment\">Leer m\u00e1s<\/a><\/p>","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[107],"tags":[],"class_list":["post-4148","post","type-post","status-publish","format-standard","hentry","category-sex-offenses"],"acf":[],"_links":{"self":[{"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/posts\/4148","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/comments?post=4148"}],"version-history":[{"count":0,"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/posts\/4148\/revisions"}],"wp:attachment":[{"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/media?parent=4148"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/categories?post=4148"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/aielloharris.com\/es\/wp-json\/wp\/v2\/tags?post=4148"}],"curies":[{"name":"buen juego","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}