New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Parole and Related Issues

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. Continue reading

One of the most frustrating aspects of prison life concerns inmate efforts to enroll in classes and programs offered within the prison system.  Virtually every prison system offers inmate programs that are designed to train inmates for re-entry into society.  These programs, which are designed to address many of the issues that caused the inmate to offend and be incarcerated, include drug and alcohol counseling, anger management, general societal skills, and vocational training.  It is believed, and hoped, that participation in such programs ultimately reduces recidivism by enhancing an inmate’s ability to contribute to the community in a positive and productive way upon release.  The programs are also important because successful completion in as many of them as possible can increase the likelihood of an earlier release on parole.  Earlier inmate release reduces prison costs, and frees prison resources for use elsewhere.

The issue that causes frustration relative to inmate programs is that there are not enough of them, and most of the existing ones are too small to meet the demand.  Many inmates try to enroll in programs during their term of incarceration, only to be placed on a waiting list because there is insufficient space to accommodate everyone.  It is not unusual for inmates to appear at parole hearings with a prison record showing the attempt to enroll in programs to which they were not admitted because the program was already full.  Many inmates – particularly non-violent offenders with relatively minimal records, or those with mental health or drug or alcohol issues – could benefit from such programs if there were more of them, and if the programs could hold more people.  Once again, the issue is cost.  We needs to ask where we want to spend our prison dollars.  Do we want to spend money on simply incarcerating people only to release them exactly as they were when they entered the criminal justice system thereby increasing their risk of re-offending or, alternatively, do we want to devote resources to training and education that will hopefully equip inmates to succeed upon release?

This is not a “feel-bad-for-the-poor-inmate” argument; rather, this has to do with spending large amounts of real taxpayer dollars in the most efficient and effective manner possible.  Spending money on just locking people up in a cage is patently silly and ultimately accomplishes nothing; spending money on training them to succeed after they are released is smart.  It is noteworthy that we are coming out of an election season.  Government spending and costs are issues frequently discussed in every federal and state election cycle.  Every candidate for every executive position wants to cut costs, and they each seem to have this endless list of proposed cuts that they will make if elected.  I cannot remember any candidate for any executive office ever discuss cutting a prison budget while they were on the campaign trail.  In light of the size of our national prison bill, stemming largely from the fact that that the US incarcerates more people than any other country on the planet, this issue clearly merits more attention.  The prison system is almost certainly one of the largest line items in the federal budget and in every state budget, and we can lower that number by, among other things, providing inmate training and education geared toward reducing recidivism.  Continue reading

In 1963, just two weeks after his 17th birthday, Henry Montgomery killed Charles Hunt, a Louisiana deputy sheriff.  Montgomery was originally sentenced to die but, on retrial in 1970, received a mandatory sentence of life without parole.  Montgomery is now 69 years of age and, by all accounts, became a model member of the prison community over the last 46 years.

In 2012, a divided United States Supreme Court ruled in Miller v. Alabama that the Eighth Amendment forbids mandatory life without parole sentences for juvenile murderers.  Montgomery, who received such a sentence, sought release from prison based upon, among other things, the Supreme Court’s ruling in Miller.  However, the Louisiana Supreme Court refused to apply Miller retroactively and, in 2014, denied Montgomery’s petition.  In fact, Louisiana was one of several states that refused to apply Miller retroactively.  As a result, juveniles in these states whose cases were no longer subject to direct review could not challenge their mandatory life without parole sentences, notwithstanding the holding in Miller.  Montgomery’s attorneys subsequently sought review in the US Supreme Court.

The Court heard oral argument in Montgomery v. Louisiana on October 13, 2015, and issued its decision on January 25, 2016.  The majority opinion addressed two issues.  First, the Court discussed whether its prior ruling in Miller was a substantive rule of law which should be applied retroactively.  The Court also considered whether the rule could be applied in a case like Montgomery’s which was on collateral, as opposed to direct, review. Continue reading

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