In 1994, the New Jersey Legislature enacted a statute, commonly referred to as Megan’s Law, that requires individuals who have been convicted of certain enumerated criminal sexual offenses to register with their local police department. The law also provides for various levels of notification to local law enforcement, local educational institutions, and even public reporting on the New Jersey Sex Offender Internet Registry depending on how the offender is classified.
The calculations underpinning the proposed classification are done by county level prosecutors who often incorrectly calculate the classification. This is why it is critical for people convicted of a sex offense, who are striving to re-build a normal life, make sure they have their Megan’s Law proposed classification reviewed by an experienced attorney who can ensure that there is no more disclosure about their conviction than is required under the law. Challenges to the proposed tiering typically must be made within 14 days of receiving the proposed tiering so it is very important that you contact an experienced attorney in this area shortly after receiving the Notice of Proposed Tiering from the County Prosecutor.
RRAS: Tiering and What It Means
The Registrant Risk Assessment Scale (RRAS) is designed to provide a score for an individual to determine what level of a risk they pose to the community. Megan’s Law offenders fall within one of three classifications:
Tier 1 (Lowest Risk): RRAS = 0-36 points
Level 1 only requires that an individual notify their local police department by registering with them once a year. As this is the lowest classification, it is usually not necessary to dispute the proposal for Tier 1. No notification is made to community groups and the individual is not listed on the internet.
Tier 2 (Moderate Risk): RRAS = 37-73 points
Level 2 also involves notification to law enforcement and adds notifications to local schools and community organizations in which the applicant may come into contact with: including licensed day care centers or summer camps. It also permits an individual to be placed on the internet with a photograph.
Depending on the presence of certain factors in the classification, Tier 2 may also require reporting on the New Jersey Sex Offender Internet Registry, making it critical to consult with an attorney on any proposed Tier 2 classification. As a Tier 2 offender, the individual will often need to register with the police department every 90 days.
Tier 3: (High Risk): RRAS = 74+ points
Level 3 requires community notification with the most wide-reaching implications and triggers the community reporting aspects of the law, including being listed on the New Jersey Sex Offender Internet Registry. Challenging a Tier 3 classification could allow for a reduction to Tier 2 which may not require reporting on the internet registry.
Criteria of The RRAS
The RRAS consists of four categories that provide for a total of thirteen separate criteria evaluated and assigned a point score. The combined points from all criteria determine the final score for tiering purposes:
- The seriousness of the registrant’s offense
- The registrant’s offense history
- Characteristics of the registrant
- Community support available to the registrant.
The 13 categories used on the Registrant Risk Assessment Scale are as follows:
- Degree of Force
- Degree of Contact
- Age of the Victim
- Victim Selection
- Number of Offenses/Victims
- Duration of Offensive Behavior
- Length of Time Since Last Offense
- History of Antisocial Act
- Response to Treatment
- Substance Abuse
- Therapeutic Support
- Residential Support
- Employment/Educational Stability.
When a Notice of Tiering Can be Expected
There are two circumstances in which someone would receive a Notice of Proposed Tiering from a County Prosecutor. There is an initial classification that is first calculated by the County Prosecutor’s Office in the jurisdiction where the convicted person lives soon after the person is sentenced to Megan’s Law (or soon after the person is released from any prison sentence that implicated Megan’s Law). The County Prosecutor in the County where the convicted person lives will send the notice of proposed tiering via mail and often this can be confusing as it may not be the same County Prosecutor’s Office that actually prosecuted the case if the underlying case was prosecuted in a different County than the one the convicted person resides in. It is important to challenge this initial classification as it can establish a precedent for reclassification in the future.
A person may also receive a Notice of Proposed Tiering even if they have already been Tiered. This occurs when a person who has to register on Megan’s Law moves to another county in the State or who has moved into the State of New Jersey from another State where they had been placed on Megan’s Law. In such a circumstance the County Prosecutor in the jurisdiction where the convicted person has moved to will issue a new Notice of Proposed Classification. This is in effect a re-classification and it is not uncommon for individuals who were initially classified as Tier 1 to receive a proposed reclassification of Tier 2 or Tier 3.
Grounds For Challenging a Proposed Tiering
Whether challenging an initial Megan’s Law classification or challenging a reclassification under Megan’s Law the basis for challenging the proposed classification stem from an enumerated set of factors pursuant to N.J.S.A. 2C: 7-8. In order to determine if the Prosecutor’s score over-counts certain factors, the experienced attorneys at our firm will thoroughly review of the discovery in the case that led to the conviction, review the personal circumstances of the Megan’s Law registrant including any treatment history, and cross reference this information with the enumerated factors and the Prosecutor’s proposed scoring. We have had numerous cases where we were able to obtain a lower Tier for our clients. Call us today to see if we can do the same for you or your loved one.
What Information is Disclosed to the Public?
The information which upon proper judicial review upon proper notice to the individual which may be disclosed is:
- Recent photo
- Physical description
- Description of offense
- Address of individuals place of employment
- Address of individual school
- Vehicle description and license plate
If the Megan’s Law file contains any materials rendered confidential by statute or court rule, for example, DYFS records, those documents should not be turned over to the offender until the Megan’s Law judge has reviewed them in camera. Following the in camera review, the judge will determine whether the materials should be turned over, in complete or redacted form, or withheld. The following is a non-exclusive list of records which may fall within this limitation.
Examples of Confidential Records
Autopsy and Medical N.J.A.C. 13:49-3.1 – may only be disclosed by Examiner Reports County Prosecutor or Attorney General once a death is referred for criminal investigation.
Child Abuse and Child N.J.S.A. 2A:82-46a – the name, address and Sexual Assault Victims identity of a victim under the age of 18 shall not appear on the indictment, complaint or any other public record.
N.J.S.A. 2A:82-46b – it is a disorderly persons offense to disclose a report containing a child victim’s name, address or identity. N.J.S.A. 9:6-8.10a – requires that all DYFS reports released to law enforcement be kept confidential. Criminal Investigation Executive Orders 123 and 69 – provide that these records are not subject to public disclosure.
Domestic Violence N.J.S.A. 2C:25-33 – provides all records maintained pursuant to this act shall be confidential and shall not be made available to any individual or institution except as otherwise provided by law.
Electronic Surveillance N.J.S.A. 2A:156A-19 – provides that it is a third degree crime to knowingly use or disclose the existence of an intercept order or the contents of an intercept, except as authorized by statute or court order.
Grand Jury Information N.J.S.A. 2B:21-10 – provides that any person who, with the intent to injure another, makes an unauthorized disclosure of Grand Jury information commits a fourth degree crime.
Internal Affairs Attorney General’s Internal Affairs Policy and Investigations Procedures – provides that contents of internal investigation case files are confidential. (Law Enforcement Guidelines page 11-20)
Juvenile Delinquency N.J.S.A. 2A:4A-60a – records pertaining to juveniles charged as a delinquent shall be strictly safeguarded from public inspection.
N.J.S.A. 2A:4A-60h – disclosure is a disorderly persons offense. Juvenile-Family Crisis N.J.S.A. 2A:4A-60a – records pertaining to (Runaways, Truancy, etc.) juveniles found to be part of a juvenile-family crisis shall be strictly safeguarded from public inspection.
The Supreme Court of New Jersey found that although the RRAS scale is generally binding upon the court as to tiering, the registrant may present expert testimony concerning the psychological state in assessing the accuracy of the registrant’s tier classification. The court may use this expert testimony to justify departure from the RRAS that the court calls “outside the heartland.