Today’s post is another guest post by Jeffrey A. Shooman, my colleague at Lite DePalma Greenberg, LLC.
Riley v. New Jersey State Parole Bd., 219 N.J. 270 (2014). In a 4-3 decision, the Supreme Court of New Jersey held that retroactive application of the Sex Offender Monitoring Act (“SOMA”), passed in 2007, violated the Ex Post Facto clauses of both the United States and New Jersey Constitutions. Justice Albin wrote the majority opinion.
George Riley was convicted of a sex offense in 1986. He finished serving his sentence in 2009. Six months after he was released, the Parole Board advised Riley that he was subject to SOMA. He was told that, for the rest of his life, he would have to wear an ankle bracelet that would constantly monitor his movement. The bracelet needed to be recharged periodically and, at those times, Riley’s ability to move freely was restricted, as he could move no further than the length of the cord.
Riley challenged the determination of the Parole Board. The Board’s Chairman rejected his challenge. The Appellate Division, in a 2-1 decision, reversed. The court rejected this form of parole supervision for life because it constituted punitive punishment under both the state and federal Ex Post Facto clauses.
The State appealed as of right. The Supreme Court, in an opinion by Justice Albin, affirmed the Appellate Division. The Court first rejected the Board’s argument that the Ex Post Facto clauses did not apply. The Board argued that what triggered the lifetime monitoring was Riley’s 2009 Tier 3 classification under Megan’s Law. Justice Albin disagreed, holding that the trigger for Ex Post Facto purposes is the date of the original offense. In reaching that conclusion, he relied on United States Supreme Court precedent as well as the Supreme Court of New Jersey’s own ruling decision upholding Megan’s Law.
The Court accepted that the intent of the Legislature in passing SOMA was remedial, but ultimately concluded that the lifetime monitoring of Riley was punitive in nature. Justice Albin concluded that the closest analog to lifetime supervision was parole supervision for life. In contrast to Megan’s Law, SOMA “is similar to a form of supervised release with mandatory conditions that allows a supervising officer . . . to seek revocation of the release for a violation.” Even though the scheme was labeled as remedial, “SOMA looks like parole, monitors like parole, restricts like parole, serves the purposes of parole, and is run by the Parole Board.” Accordingly, the restraint on Riley imposed an affirmative disability on his freedom to travel, rendering it punitive in nature. Unlike Megan’s Law, SOMA’s twenty-four hour surveillance of Riley deprived him of “freedom of movement and the ability to live and work as other citizens, with no supervision.” The retroactive application of SOMA 23 years after the underlying offense, the Court concluded, violated both the federal and state Ex Post Facto Clauses.
Chief Justice Rabner and Justices Patterson and Fernandez-Vina filed a joint dissent. They agreed substantially with the dissenting opinion of Judge Parrillo in the Appellate Division.
This case split both the Appellate Division and the Supreme Court by the narrowest of margins. But this decision marks the end of the line for this case. Given that the Court found an independent state ground on which to invalidate the restrictions on Riley, no appeal to the Supreme Court of the United States is available.