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

Articles Posted in Sex Offenders

Effective January 1, 2017, Missouri sex offenders guilty of 13 different sex crimes based on acts committed on or after August 28, 2006, are subject to additional security requirements.  They will be required to wear GPS monitoring devices for the rest of their lives.  This includes defendants who were sentenced before this requirement was enacted.  This raises two important issues.  First, many of these defendants resolved their cases prior to the first of this year, and this requirement was not included in their original plea arrangement or sentence.  Additionally, it makes daily functioning in the community as a convicted sex offender that much more onerous and burdensome.  Both of these issues require careful consideration.

The GPS devices at issue alert authorities if an offender “lingers” near a school or park.  When the device activates, the defendant receives directions from a state official to, for example, report immediately to a probation officer.  The devices are also waterproof, and will alert the authorities if a defendant attempts to remove it.  The new rules affect hundreds of sex offenders throughout the state.

The first problem that the implementation of this GPS monitoring technology raises is that it was not contemplated by plea deals agreed to, or sentences imposed, prior to January 1, 2017.  Defendants who resolved their cases prior to the implementation date agreed to plead guilty based upon certain stated terms and conditions, all of which were presumably included in the records of their cases.  At sentencing, the court imposed certain terms and conditions of supervision with which they had to comply prospectively.  They were presumably advised by competent counsel, received notice of all of the requirements of community supervision, and consented to them in connection with the disposition of their cases.  In short, they knew the deal, and consented to it.  Now, after the fact, the rules are being changed with the addition of new, burdensome requirements that are apparently permanent.  How the terms and conditions of a plea arrangement or sentence can be so altered with no discussion or debate runs roughshod over basic concepts of due process, as well as fairness and decency. Continue reading

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

Megan’s Law provides that registrants who have not re-offended within 15 years of their conviction or release from custody, whichever is later, and are unlikely to pose a safety threat to others, can be relieved of their registration and reporting obligations.  Given the burdens of Megan’s Law and the restrictions it places on many aspects of daily living, many registrants “watch the clock”, with an eye toward moving for a court order relieving them of their obligations as promptly as possible.  A recent New Jersey Supreme Court case has, however, made it more difficult to succeed on such a motion.

In the Matter of AD, JB and CM was decided on February 7, 2017.  The case involved three registrants who sought relief from their Megan’s requirements.  AD was convicted of third-degree endangering the welfare of a child, which triggered Megan’s Law reporting and registration obligations.  He moved to be relieved of these restrictions 15 years after his conviction.  Initially, his motion was unopposed, and was apparently successful.  However, while on supervision, he had been convicted of violating a condition of his Megan’s sentence by not notifying his parole officer of a change of address.  The State eventually learned of this and sought reconsideration of the Court’s Order removing him from Megan’s.  AD’s argued that his application should be granted because the offense he committed was not a sex offense, but this was rejected.  Similarly, JB was convicted of second-degree sexual assault.  During his term of supervision, he failed to notify law enforcement of a change of address and, as a result, ultimately pleaded guilty to a fourth-degree offense.  This charge and guilty plea ultimately resulted in the denial of his application to be relieved of registration and reporting requirements.  The Court rejected his argument that the offense he pleaded guilty to during his term of supervision should not bar his application because it was not a sex offense.  Finally, CM pleaded guilty to third-degree aggravated criminal sexual contact and was required to comply with Megan’s Law.  He later applied to terminate his Megan’s obligations, but this application was denied because he violated a final restraining order during his term of Megan’s supervision.  Once again, the trial court rejected the argument that this offense was irrelevant because it was not a sex offense.

The issue before the Supreme Court in each of these cases was whether the term “offense” as used in the relevant provision of the registration and reporting statute referred only to a sex offense, or to a broader category of activities that included crimes, disorderly persons offenses and petty disorderly persons offenses.  Put somewhat differently, did the term “offense” in the registration statute mean sex offense, or any criminal offense? 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

The United States Supreme Court decided Grady v. North Carolina on March 30, 2015.  After completing his prison term for sex offenses, the State determined that Grady was a recidivist sex offender, and wanted to place him on satellite-based monitoring.  Grady argued that the monitoring program, which required him to wear a monitoring device at all times, violated his Fourth Amendment right to be free from unreasonable searches and seizures.  Grady’s argument was based on U.S. v. Jones, where the Supreme Court held that installing a GPS tracking device on a suspect’s car was a “search” within the meaning of the Fourth Amendment.  The State courts rejected Grady’s argument, finding that the monitoring program at issues was not a Fourth Amendment search.  This conclusion was based, apparently in large part, upon the view that the proceeding giving rise to the monitoring was civil in nature, whereas Jones was a criminal case, which entailed different (higher) legal standards.

The Supreme Court rejected the reasoning of the State courts.  First, the monitoring program was a “search” because it enabled the State to “physically intrude on a constitutionally protected area … [A] State conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.”  The fact that the monitoring program was civil in nature was rendered meaningless by settled law establishing “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations [] and the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”

Ultimately, however, the Court observed that the Fourth Amendment protects only against unreasonable searches and seizures.  Thus, it remanded the matter to the North Carolina courts to determine whether the monitoring program was reasonable when viewed as a search. Continue reading

It has been 20 years since New Jersey enacted Megan’s Law, which require convicted sex offenders to register with local authorities in the community where they live.  Whether and to what extent the law has accomplished anything remains a hotly debated subject.

Briefly, the law requires, among other things, that convicted sex offenders undergo an assessment that is supposedly geared towards determining their risk of re-offending.  Offenders in the lowest tier (one) are placed under what is considered to be the most lenient level of supervision.  Offenders in tiers two and three are supervised more strictly, and appear on the New Jersey State Police Internet Sex Offender Registry.  The other States and the Federal system have enacted similar laws.

A State-wide army of parole officers are charged with supervising convicted sex offenders throughout New Jersey.  Once an offender is placed under parole supervision, the parole officer responsible for their case has tremendous latitude over where they can live and work and what kind of job they can have.  An offender’s parole officer can also restrict their ability to socialize with minors, even if the latter are members of the offender’s own family.  It is extremely difficult to challenge the actions of a parole officer.  Typically, the offender must receive a determination from the parole board that denies their request to adjust the terms or conditions of their supervision.  That determination must then be appealed to the Appellate Division of the New Jersey Superior Court.  The overall process of challenging restrictions can easily take a year or more. Continue reading