Riley v. N.J. State Parole Bd.

• Decision Date: 22 September 2014
• Citation: 219 N.J. 270,98 A.3d 544
• Parties: George C. RILEY, Appellant–Respondent, v. NEW JERSEY STATE PAROLE BOARD, Respondent–Appellant.
• Court: New Jersey Supreme Court

219 N.J. 270

98 A.3d 544

George C. RILEY, Appellant–Respondent,

v.NEW JERSEY STATE PAROLE BOARD, Respondent–Appellant.

Supreme Court of New Jersey.

Argued Jan. 7, 2014.

Decided Sept. 22, 2014.

Unconstitutional as Applied

N.J.S.A. 30:4–123.92, 30:4–123.94.

Lisa A. Puglisi, Assistant Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General of New Jersey, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Raksa, Christopher C. Josephson, Deputy Attorney General, and Mary Beth Wood, Senior Deputy Attorney General, on the briefs).

Stephen M. Orlofsky argued the cause for respondent (Blank Rome, attorneys; Mr. Orlofsky, Andrew J. Hughes, and Rachel J. Gallagher, Princeton, on the briefs).

Alexander R. Shalom argued the cause for amici curiae American Civil Liberties Union of New Jersey and New Jersey Office of the Public Defender (Alison S. Perrone, attorney).

George C. Riley submitted a letter brief pro se.

Justice ALBIN delivered the opinion of the Court.

A well-established principle of ancient origin is that the legislature cannot increase the punishment for a crime after it has been committed. This simple principle—that after-the-fact laws cannot raise the punishment for earlier committed conduct—is embodied in the Ex Post Facto Clauses of both the Federal and New Jersey Constitutions, U.S. Const. art. I, § 10; N.J. Const. art. IV, § 7, ¶ 3.

In 2009, George C. Riley, then seventy-six years old, completed serving the entirety of his twenty-year sentence for aggravated sexual assault. On his release from prison, Riley was under no form of parole supervision, although he was required to comply with the registration and notification provisions of Megan's Law, N.J.S.A. 2C:7–1 to –11. Six months later, the New Jersey Parole Board advised Riley that he was subject to the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4–123.89 to –123.95—a law passed in 2007, more than twenty years after Riley committed his last offense. Riley was told that he would have to wear an ankle bracelet twenty-four hours a day for the rest of his life, that his movements would be tracked continuously by global positioning system (GPS) satellites, and that he would be assigned a monitoring parole officer to whom he would have to report and give access to his home. This monitoring program placed restrictions on Riley's freedom to travel, and his failure to comply with the program would subject him to prosecution for a third-degree crime.

Before the Parole Board, Riley claimed that the retroactive application of SOMA to him, based on his 1986 conviction, violated the bar against ex post facto laws. He contended that the new law is a form of parole supervision for life, an additional punishment imposed after he completed his sentence. The Chairman of the Parole Board rejected Riley's challenge, explaining that he was carrying out the mandate of the statute. The Appellate Division reversed in a split decision, finding that the retroactive application of SOMA to Riley based on his 1986 conviction constituted punishment under both the Federal and State Ex Post Facto Clauses.

We now affirm. Parole is a form of punishment under the Constitution. SOMA is essentially parole supervision for life by another name. Riley is under constant electronic monitoring by the Parole Board even though he has completed his sentence for a crime that predated SOMA. The constraints and disabilities imposed on Riley by SOMA, and SOMA's similarity to parole supervision for life, clearly place this law in the category of a penal rather than civil law. Accordingly, when applied to Riley, SOMA violates both the federal and state constitutional guarantees against ex post facto laws.

I.

A.

The facts of this case are generally not in dispute. In September 1986, George Riley was convicted of the second-degree attempted sexual assault of a minor that he committed earlier that year, in violation of N.J.S.A. 2C:5–1 and N.J.S.A. 2C:14–2(b). In light of his previous sexual-offense convictions, Riley was sentenced to an extended term of twenty years subject to a ten-year parole-ineligibility period, consecutive to a term of imprisonment imposed for a violation of his parole. At the time, New Jersey law did not provide for the imposition of parole supervision for life for sexual offenses.

Riley completed the entirety of his sentence in prison. On his release in February 2009, he was not subject to any form of parole supervision. Riley was, however, subject to the registration and notification requirements of Megan's Law. In July 2009, the Superior Court conducted a Megan's Law hearing for the purpose of determining the extent of community notification. The court placed Riley in Tier 3—the highest risk category for sexual offenders—requiring Internet registration and the most comprehensive degree of community notification. See N.J.S.A. 2C:7–8(c)(3); N.J.S.A. 2C:7–13(b)(1). The Tier 3 scoring was based primarily on Riley's previous sexual-offense convictions. Megan's Law registration and notification requirements do not place an offender under parole supervision.

In August 2009, Riley received notification from the New Jersey State Parole Board that he was subject to GPS monitoring under SOMA. Under protest, Riley signed the Notice of Conditions for the GPS Monitoring Program. The Notice set forth the following requirements:

1. You shall initially meet with the assigned monitoring Parole Officer for installation of the GPS monitoring equipment.

2. You shall insure that the GPS tracking device is charged to its capacity on a daily basis and maintain the GPS tracking device in a charged mode whenever you leave your residence.

3. You shall provide immediate notice to the assigned monitoring Parole Officer if the GPS tracking device becomes inoperable.

4. You shall not tamper with, remove or damage or attempt to tamper with, remove or damage any of the GPS monitoring equipment installed at your residence, attached to your person or required to be carried by you.

5. You shall be responsible for the cost of repair and/or replacement of any of the GPS monitoring equipment that is lost or damaged.

6. You shall maintain and exercise continuous physical control over the GPS tracking device whenever you leave your residence.

7. You shall provide access to your residence at reasonable times to enable the assigned monitoring Parole Officer to perform required maintenance and/or diagnostics of the GPS monitoring equipment.

8. You shall provide immediate access to your residence whenever the assigned monitoring Parole Officer is required to investigate a report of non-compliance with a condition of the monitoring program.

9. You shall provide notice to the assigned monitoring Parole Officer not less than ten days prior to any change in your residence.

10. You shall provide notice to the assigned monitoring Parole Officer prior to any travel outside of the State of New Jersey.

11. You shall provide the assigned monitoring Parole Officer with:

a. the name, address and physical location of your current employment.

b. notice of any change in your employment or employment location within 24 hours of the change occurring.

c. your scheduled hours of work on a weekly basis.

The Notice also advised Riley that failure to comply with the conditions constituted a third-degree crime, exposing him to a maximum term of imprisonment of five years and a maximum fine of $15,000.

The assigned parole officer attached a light-weight, two-inch by one-and-one-half-inch transmitter to Riley's ankle using a rubber strap. Riley is required to wear the transmitter at all times.¹ At first, when away from home, Riley was required to carry a cell-phone-sized tracking unit that is clipped to a belt. In June 2013, Riley was given an updated GPS device, combining the transmitter and tracking device into a single ankle bracelet. This new unit is larger and heavier than the old one. On the new device, only pre-recorded messages can be sent to Riley. When receiving a message, Riley must place his finger on a sensor and then the message is broadcast over the device's speaker, wherever he may be. These messages include, “call your officer,” “please pay your fines immediately,” and “report to the office immediately.” The new ankle unit must be plugged into an electrical outlet to be charged. During charging, Riley's movements are limited to the length of the cord. The tracker must be charged through an electrical outlet one to two hours every day.²

The parole officer monitoring Riley can log into a website, pinpoint his location on a map, and determine whether he is moving and, if so, at what speed and in what direction. The effectiveness of this tracking mode depends on the satellite and wireless-communication reception at a particular location. Riley, however, is required to notify his parole officer if his tracking device becomes inoperable.

Riley was advised through a New Jersey Parole Board “Participant Information” statement that the “GPS monitoring program is staffed by [p]arole [o]fficers at all times” and that he can reach his parole officer at the District Office telephone number or the officer's cell number.

B.

Riley filed an appeal with the Parole Board, challenging the imposition of the SOMA requirements six months after he “made a successful adjustment into the community without any incident.” He characterized the GPS monitoring program as nothing less than parole supervision for life—a parole requirement for certain sex offenders that post-dated his crime. Riley claimed that the Parole Board arbitrarily extended his sentence after he had completed serving it, in violation of the Ex Post Facto and the Double Jeopardy Clauses of the United States Constitution and the Ex Post Facto Clause of the New Jersey Constitution.

The Chairman of the Parole Board wrote to Riley that as a result of his Tier 3 designation, his “placement [in] the Sex Offender G.P.S....