We have commented previously upon Megan’s Law and Community Supervision for Life (“CSL”), now known as Parole Supervision for Life (“PSL”). The two ongoing problems with the regime that these laws create for the supervision of sex offenders still exist. First, there is little, if any, empirical evidence that the laws accomplish anything positive, which is particularly troublesome in light of the substantial administrative costs they generate, which are borne by the taxpayers. Further, these laws are fundamentally unfair. They stem from a belief that the best way to manage sex offenders is to have them live in the community subject to terms and conditions of supervision. However, at the same time, many of the terms and conditions pursuant to which they must conduct themselves are so burdensome that they make life incredibly difficult, and the parole officers who supervise them frequently act in a manner that can only be described as sadistic. The end result is that parolees are whipsawed – they are directed to live in the community, but their daily lives are made almost impossible by unreasonable restrictions and abusive parole officers.
We can all agree that Internet access is a staple of modern life. Imagine life with restricted Internet use or, worse, a complete ban. Internet usage by sex offenders is frequently regulated by the terms and conditions of their parole supervision. In many cases, those restrictions go far beyond what is necessary to manage a parolee’s conduct in a way that ostensibly protects the community and satisfies other necessary goals. On March 21, 2017, our Supreme Court decided JI v. New Jersey State Parole Board, which addresses this problem. The JI Court considered two issues: whether a total ban on a parolee’s internet usage is so overbroad that it serves no meaningful purpose, and whether the parole board must grant the parolee a hearing to challenge those restrictions.
JI, a sex offender, was sentenced to, among other things, CSL in 2003. Upon release from custody in 2009, the parole board prohibited him from accessing social networking sites or chat rooms. In 2010, it was discovered that he had visited websites that depicted child pornography. He was not charged with violating his parole, but his sex offender treatment provider opined that the viewing of this material would not further his rehabilitation. The board then prohibited him from using any device that could access the Internet. Later in 2010, he was arrested for possessing a phone with which he accessed the Internet, and a board panel found him guilty of violating his terms and conditions of supervision. He was imprisoned in 2011, and released in 2012.
At or around the time of his release, JI was instructed to refrain from using a computer or other device to access social networking sites or chat rooms without prior permission. Except for these restrictions, JI had full Internet access. In 2013, he sought permission to access LinkedIn so he could search for work. This request was granted, but he was prohibited from accessing the Internet for any purpose other than seeking employment. This almost-total Internet ban was based upon the alleged prior incidents of non-compliance described above. A board panel affirmed this restriction. JI was later warned about visiting non-work-related websites, and appealed to the board. He was subsequently warned again, this time for visiting his church’s website, as well as “Rent-to-Own”. He was again instructed that he could not use the Internet at all without prior permission, and that any Internet use could only be related to seeking employment. Because he continued to go to websites having nothing to do with employment, he was barred from using a computer or the Internet for any purpose. A board panel affirmed this decision, and denied his request for a hearing.
On appeal, the Appellate Division upheld this decision. That court somehow concluded that the conditions were a reasonable way to reduce the likelihood of JI’s recidivism, as well as necessary to protect the community. The New Jersey Supreme Court granted JI’s request for certification.
In reversing, the Supreme Court held that arbitrary Internet restrictions that are unrelated to public safety, reducing recidivism or helping the parolee to integrate into the community are inconsistent with the CSL (and, presumably, PSL) regime. Further, the total denial of Internet use implicates a liberty interest, as well as associated due process concerns. As such, JI should have been granted a hearing after the imposition of the complete Internet ban.
Expanding upon this, the Court noted that Internet access is a basic need. Further, the purpose of CSL/PSL is to help offenders reintegrate into society, and any imposed terms and conditions of supervision must reduce the likelihood of recidivism, as well as promote public safety and rehabilitation. Internet conditions must be tailored to the facts and circumstances surrounding the individual sex offender. A total Internet ban is unnecessary when less restrictive terms and conditions can achieve the goals of supervision. For this reason, the ban imposed in this case was overbroad. It was not tied to JI’s original criminal conduct which had nothing to do with Internet usage, and did not promote rehabilitation or public safety. Indeed, such a ban could effectively undermine JI’s rehabilitation, as well as his chances of success as a productive citizen. Finally, given the important interests at stake, JI could not be denied a hearing at which he could challenge this ban. Against this backdrop, the Court remanded the case to the full parole board for a hearing to determine whether the total Internet and computer ban imposed in JI’s case served any legitimate goal.
This decision is important not only because of what it does to protect the rights of parolees to use the Internet, but also because it reminds us that all terms and conditions of CSL/PSL supervision must be reasonable and serve legitimate, case-related, offender-specific goals.
New Brunswick criminal defense attorney James S. Friedman represents defendants charged with crimes in the New Jersey Superior Court, all New Jersey municipal courts, The New York State criminal courts in Manhattan and Brooklyn, and the United States District Courts in New Jersey and New York City. The firm also represents parolees who are subject to CSL/PSL. Contact us today to discuss your case and your options.