September 22, 2014

A divided New Jersey Supreme Court ruled Sept. 22 that requiring a sex offender to wear a satellite tracking device after he has completed his sentence violates the ex post facto clauses of the federal and state constitutions.

The 4-3 decision in Riley v. New Jersey State Parole Board means that an 81-year-old man, convicted in 1986 and released from prison in 2009, will not have to wear a global positioning system monitoring device on his ankle for the rest of his life, as required by a 2007 law, the Sex Offender Monitoring Act (SOMA).

Justices Barry Albin and Jaynee LaVecchia, along with two temporarily assigned appellate judges, determined that the effects of applying SOMA to George Riley 23 years after he committed the offense and after he had fully completed his sentence were so punitive that they negated the civil and regulatory purpose of the law, making it unconstitutional to apply it retroactively.

Riley had to wear the cellphone-sized tracker/transmitter on a band around his ankle 24 hours a day, enabling continuous tracking of his movements, according to the opinion.

Messages such as “call your officer” and “please pay your fines immediately” could be broadcast through the device regardless of where he was, allegedly exposing him to shame in public places, according to the opinion.

Riley complained that wearing the device when he slept caused pain and swelling in his leg and it had to be recharged every 16 hours, restricting movement to the length of the cord during the process, the opinion said. A parole officer could enter his home to perform maintenance and to investigate a report of noncompliance.

Failure to abide by the requirements was a third-degree crime carrying a maximum penalty of five years in prison and a $15,000 fine, the opinion said.

Riley was convicted of attempted aggravated sexual assault of a minor in September 1986 and sentenced to 20 years, based in part on his record of prior sex crimes, the opinion said. When released, in February 2009, he was not subject to any form of parole supervision, but he had to comply with the registration and notification requirements of Megan’s Law.

Following a July 2009 hearing, a state court judge placed him in Tier 3, the highest risk category, requiring Internet registration and the broadest community notification, according to the opinion.

One month later, the opinion said, the state parole board notified Riley he was subject to GPS monitoring under SOMA. Riley objected and was told the program was mandatory for him because of the Tier 3 designation.

The Appellate Division reversed in 2011.

Judges Stephen Skillman and Marianne Espinosa found ex post facto violations, while Judge Anthony Parrillo dissented, allowing the parole board an appeal as of right.

The board argued on appeal that ex post facto concerns were absent because the Megan’s Law classification triggered application of SOMA rather than the 1986 crime.

In addition, it contended that the monitoring presented “relatively minor inconveniences” that were no more onerous than those associated with Megan’s Law, and the Sexually Violent Predator Act, which, when applied retroactively, have been held not to violate the ex post facto prohibition.

The Supreme Court majority rejected those assertions, finding that SOMA was essentially like parole for life or community supervision for life, which it held in 2012 is punitive rather than remedial.

“SOMA looks like parole, monitors like parole, restricts like parole, serves the general purpose of parole, and is run by the parole board,” Albin said.

One major thing SOMA had in common with parole was that Riley could not alter it, in contrast to civil commitment under the Sexually Violent Predator Act, which permits yearly review on the existence of a present danger to the public, Albin said.

Riley was condemned to wear the device for the rest of his life and among other “disabilities and restraints,” could not travel any place where he would be unable to recharge it every 16 hours, a restriction that violated his constitutional freedom to travel, Albin said.

And even though shaming him was not the purpose, if he was to wear shorts, or a bathing suit or go through airport screening, the device would identify him as a sex offender “no less clearly than if he wore a scarlet letter,” Albin added.

Albin said it was significant that Riley had completed his sentence and was not subject to any form of supervised release, because if he had been, the monitoring could be seen as an additional condition to an ongoing probation. 

“We do not suggest that GPS monitoring may not be added as a condition of parole supervision that is ongoing—that is, while the offender is still serving his sentence,” Albin wrote.

Dissenters Chief Justice Stuart Rabner and Justices Anne Patterson and Faustino Fernandez-Vina wrote no opinion but stated they dissented “substantially for the reasons expressed” by Parrillo in the appellate court.

Parrillo said he did not believe the device was “sufficiently punitive to transform its civil remedy into criminal punishment.” He saw it as distinguishable from probation, parole or supervised release and far less intrusive than involuntary commitment as a sexually violent predator or the Megan’s Law registration and notification procedures.

American Civil Liberties Union-New Jersey lawyer Alexander Shalom, representing amici the ACLU-NJ and the New Jersey Office of the Public Defender, said the Supreme Court’s decision recognizes “that to be continuously tracked by the government is a significant intrusion on one’s freedom,” necessitating a warrant or a judicial finding that punishment is appropriate.

Article on Sex Offenders: http://www.njlawjournal.com/id=1202670980774/Court-Finds-PostSentence-GPS-Tracking-Unconstitutional#ixzz3EEvczMG7