The latest decision from the NJ Appellate Division involving sex offenders, State v. F.W., consists largely of a rather complex discussion concerning the interrelationship of Community Supervision for Life (“CSL”), Parole Supervision for Life (“PSL”), The Sex Offender Monitoring Act (“SOMA”), and the Ex Post Facto clauses of the Federal and New Jersey State Constitutions. That part of the decision is for attorneys and academics. However, the decision is noteworthy because it reviews significant elements of the regimen used to supervise sex offenders living in the State. Offenders subject to CSL or PSL and related requirements such as GPS monitoring need to understand the array of rules and restrictions governing their movements in the community, and their rights if they are accused of a violation.
Sex offenders in New Jersey, like most States, are subject to a bewildering array of regulations. Sex offender supervision in New Jersey began with CSL, which was enacted in 1994 as part of Megan’s Law. The Legislature enacted the current supervision law, PSL, in 2003. The number of defendants sentenced under CSL is dropping with the passage of time, but there are still many CSL offenders in the parole supervision system. F.W. was sentenced under CSL.
The decision reminds us that CSL and PSL differ in several significant ways. A violation of CSL is a crime and must be handled as any criminal case. Thus, the matter is heard by a Superior Court judge, and the defendant is represented by competent defense counsel and has all of the procedural protections typically afforded a criminal defendant. In sharp contrast, PSL offenders who violate the terms and conditions of their supervision can have their matters prosecuted as a criminal case involving a fourth degree charge or, alternatively, have their matters disposed of as parole violations. If the latter course is adopted, the matter will be heard by the Parole Board. The offender will have a relatively cursory administrative hearing before the Board that lacks all of the procedural protections available in a regular criminal case. As to punishment, the Board can revoke parole and return the offender to prison. Additionally, a CSL defendant adjudicated guilty of a violation and sentenced to a prison term can ultimately be released on parole. PSL defendants who are imprisoned as a result of violations (even if the violation stems from an offense identical to that committed by a CSL defendant) may not be released on parole. Thus, with respect to violations, a PSL offender will have fewer procedural protections than a CSL offender, but could face the same or even greater punishment. Continue reading