Riley v. New Jersey State Parole Bd., 423 N.J. Super. 224 (App. Div. 2011). The Constitutions of both the United States and New Jersey contain provisions that ban ex post facto laws. Few cases arise under those provisions. Here, however, the issue was whether retroactive application of the intensive monitoring and supervision of sex offenders provided under the Sex Offender Monitoring Act, N.J.S.A. 30:4-123.89 to -123.95, violated the Ex Post Facto Clauses. By a 2-1 vote, the Appellate Division held that there was a constitutional violation. In a clash of Appellate Division titans, Judge Skillman wrote the majority opinion, while Judge Parrillo dissented.
Plaintiff, who is now 77 years old, was found guilty of attempted sexual assault committed in 1986. In 2009, at the expiration of his maximum sentence, he was discharged without being subject to parole supervision. Meanwhile, in 2007, the Sex Offender Monitoring Act became effective. That statute directed the Parole Board to establish a program of “continuous, satellite-based monitoring of certain sex offenders.” In 2009, the Parole Board notified plaintiff that he was subject to such monitoring.
The central feature of the monitoring program is that the subject must wear an ankle bracelet GPS device 24 hours a day, seven days a week. There is other, associated equipment that the subject must carry when he leaves home. The equipment must be kept charged, and the subject is responsible for the cost and the obligation of doing that. The GPS device also allows the authorities to contact the subject via text message. If that occurs, the subject is required to read the message, acknowledge receipt, and comply with all instructions contained in such a message. A parole officer may enter the subject’s home at any time “to investigate a report of non-compliance with a condition of the monitoring program.”
Plaintiff appealed his inclusion in the monitoring program to the Parole Board. The Parole Board rejected his appeal. He then appealed to the Appellate Division, supported by the American Civil Liberties Union of New Jersey and the Office of the Public Defender as amici curiae.
Judge Skillman, joined by Judge Espinosa, recognized that the Sex Offender Monitoring Act was intended as a regulatory measure, not as punishment. Relying on Supreme Court of the United States precedent, the majority observed that even a regulatory provision can violate the Ex Post Facto Clauses “despite its regulatory intent, if its adverse effects are so punitive as to negate the State’s intent to deem it only civil and regulatory.” The majority found that to be so here. Of particularly significance to the majority was the fact that the monitoring program involves “affirmative disabilities and restraints” that are similar to ones that “have historically been regarded as a punishment.”
The physical discomfort, including the adverse effect on sleep, of wearing the ankle bracelet 24/7, was one of several reasons underlying the majority’s ruling. Among other things, the fact that plaintiff must pay for some of the costs of the program, such as for keeping the GPS unit charged, the restriction that the need to keep the unit charged poses to travel, including to areas where electricity may be lacking, and the fact that a parole officer may enter plaintiff’s residence in the middle of the night, without a warrant, if the tracking device malfunctions and stops emitting signals, all contributed to the majority’s decision. The majority found persuasive a decision of the Supreme Judicial Court of Massachusetts, which had found that a similar scheme violated ex post facto principles.
Judge Parrillo, in dissent, believed that the monitoring regime was not unduly punitive. It was “certainly far less restrictive than post-incarceration confinement,” which the Supreme Court of the United States had upheld in 1997, and less harsh than actions such as revocation of professional licenses. Judge Parrillo found persuasive a North Carolina appellate decision that had found the wearing of a tracking device at all times not unduly punitive, and he distinguished the Massachusetts case on which the majority had relied.
Given the dissent, this case is on its way to the Supreme Court of New Jersey. That Court will have an interesting and challenging ex post facto issue to decide. Judge Skillman flagged another issue, though, that might allow the Supreme Court to decide the case without reaching the constitutional question that so divided the appellate panel. The Parole Board did not follow the procedures for rulemaking in adopting the details of the monitoring program, and Judge Skillman found it “at least arguable” that those procedures should have been followed. Since plaintiff had not raised that issue, the panel bypassed it in order to address the Ex Post Facto Clause issue. Judge Skillman noted in a footnote, however, that rejecting the program on the basis of the absence of rulemaking procedure would invalidate it not only as to persons whose offenses preceded the statute, but also as to those whose offenses came after the statute. That fact might discourage the Supreme Court from premising its decision on the rulemaking issue.