J.I. v. N.J. State Parole Bd.

• Decision Date: 21 March 2017
• Parties: J.I., Appellant–Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent–Respondent.
• Court: New Jersey Supreme Court

228 N.J. 204

155 A.3d 1008

J.I., Appellant–Appellant,

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

Supreme Court of New Jersey.

Argued November 7, 2016

Decided March 21, 2017

Michael C. Woyce argued the cause for appellant (Murphy & Woyce, attorneys; Mr. Woyceand Joseph S. Murphy, on the briefs).

Lisa A. Puglisi, Assistant Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General of New Jersey, attorney, Ms. Puglisiand Christopher C. Josephson, Deputy Attorney General, on the letter briefs).

Fletcher C. Duddy, Deputy Public Defender, argued the cause for amicus curiaeOffice of the Public Defender (Joseph E. Krakora, Public Defender, attorney).

Ronald K. Chen argued the cause for amicus curiaeAmerican Civil Liberties Union of New Jersey (Rutgers Constitutional Rights Clinic Center for Law & Justiceand Edward L. Barocas, Legal Director, attorneys; Mr. Chen, Mr. Barocas, Jeanne M. LoCicero, and Alexander R. Shalom, of counsel and on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

Today, the Internet plays an essential role in the daily lives of most people—in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender. In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose. The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.

After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes. The District Parole Supervisor justified the ban based not on J.I.'s conduct while on community supervision for life, but rather on his conduct years earlier—the accessing of pornography sites and the possession of pornography—that led to a violation of his parole. A Parole Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device. The Parole Board upheld that determination and denied J.I. a hearing. The Appellate Division affirmed.

We now reverse and remand to the Parole Board. Conditions imposed on CSL offenders—like those imposed on regular parolees—are intended to promote public safety, reduce recidivism, and foster the offender's reintegration into society. Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders. We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban, after J.I.'s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.'s computer. After the imposition of the total ban for J.I.'s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout. The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion. The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.

I.

A.

In 2003, J.I. pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14–2(b), and two counts of second-degree endangering the welfare of a minor, N.J.S.A. 2C:24–4(a). J.I. admitted that, over a period of time, he sexually molested his three daughters, who ranged from six to fourteen years old. The trial court sentenced J.I. to a seven-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43–7.2, on the sexual assault charge and to concurrent terms of seven years on the endangering charges. The court found that J.I.'s "conduct was characterized by a pattern of repetitive and compulsive behavior" and that he was amenable to sex offender treatment, and therefore ordered that the sentence be served at the Adult Diagnostic and Treatment Center (ADTC). The court also imposed a three-year period of mandatory parole supervision, to begin after J.I.'s release from custody, and a special sentence of community supervision for life, to follow the parole supervision period. Additionally, J.I. is subject to the registration and notification requirements of Megan's Law, N.J.S.A. 2C:7–1 to –23.

Upon J.I.'s release from confinement in October 2009, the Parole Board served him with the conditions of his mandatory parole supervision, which included the mandate that he refrain from accessing any social networking service or chat room. In January 2010, a parole officer's search of J.I.'s computer revealed that J.I. had visited multiple websites that "depicted minors in the nude." J.I. admitted to doing so. A parole officer also found in J.I.'s possession " ‘barely legal’ DVDs and a book of ‘artistic’ photos of pre-teen and minor females in the nude."

J.I. was not charged with a criminal offense or parole violation, but his sex-offender treatment provider indicated that the possession of such material was "not conducive to [J.I.'s] rehabilitation or reintegration into society." In light of J.I.'s conduct, the Parole Board prohibited J.I. from using any Internet-capable device.

In October 2010, the parole authorities arrested J.I. for possessing a mobile phone with Internet capability and for using it "regularly in that capacity." In March 2011, a panel of the Parole Board found that J.I. had violated the conditions of his supervised release by having "an Internet capable device in his possession" and by his earlier "accessing pornography and images of nude children." In June 2011, J.I. returned to confinement at the ADTC, where he remained until his release sixteen months later.

B.

Before his release in October 2012, J.I. acknowledged in writing the conditions attached to his community supervision for life. The only restriction on J.I.'s use of a computer or the Internet was that he "refrain from using any computer and/or device to create any social networking profile or to access any social networking service or chat room ... unless expressly authorized by the District Parole Supervisor." Under the social networking condition, J.I. was prohibited from accessing websites such as Facebook and Match.com. J.I. otherwise had full access to the Internet. Indeed, a Deputy Attorney General confirmed by email that the social networking restriction was the only limitation on J.I.'s use of the Internet.

In 2013, J.I. was sixty-two years old, unemployed, and without the means to pay the mortgage on the home where his wife and son lived or otherwise provide financial assistance to his family. To further his search for employment, J.I. requested that his District Parole Supervisor modify the social networking condition to allow him to access LinkedIn, a job-related networking site. At this point, J.I. was in compliance with all the conditions of his community supervision for life, including the Internet conditions.

In response to J.I.'s request for a limited modification to the social networking condition, on December 5, 2013, J.I.'s District Parole Supervisor prohibited J.I. from accessing the Internet for any purpose other than employment purposes, subject to his installing monitoring software on his computer. J.I.'s request to access LinkedIn was granted. J.I., however, was now subject to far more onerous Internet restrictions than before his request for relief—despite his thirteen-month compliance with the terms of his community supervision. The District Parole Supervisor justified this near-total Internet ban based on J.I.'s noncompliance, three years earlier, with "the State Parole Board's Social Networking/internet condition and his use of questionable and inappropriate internet sites." Six days later, on December 11, 2013, a panel of the Parole Board affirmed the near-total Internet blackout.

Nothing in the Board panel's statement of reasons suggests that J.I. had the opportunity to submit written objections to the newly imposed Internet restrictions.

Almost fifty days later, the District Parole Supervisor admonished J.I. for visiting non-work-related websites—a car-buying website, "Godtube," "Morris Psychological Group," and "Covenant Eye."¹ Covenant Eye was the filtering website program that allowed J.I.'s parole officer to track and monitor his Internet usage.

On February 17, 2014, J.I. appealed to the Parole Board the conditions imposed by the District Parole Supervisor, restricting his computer and Internet access to employment-related uses. Ten days later, J.I. was admonished again, this time for visiting the websites of the church he attended—the Parsippany Baptist Church—and "Rent to Own."

On March 7, 2014,...