K.G. v. N.J. State Parole Bd.
| Decision Date | 24 January 2019 |
| Docket Number | A-4339-16T1,DOCKET NOS. A-0042-16T2,A-4343-16T4,A-4797-16T3 |
| Citation | 458 N.J.Super. 1,202 A.3d 636 |
| Parties | K.G., Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent. C.C., Appellant, v. New Jersey State Parole Board, Respondent. J.L., Appellant, v. New Jersey State Parole Board, Respondent. D.C., Appellant, v. New Jersey State Parole Board, Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Michael C. Woyce, Ringwood, argued the cause for appellants (Murphy & Woyce, attorneys; Michael C. Woyce, on the briefs).
Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel in A-0042-16 and A-4339-16; Melissa H. Raksa, Assistant Attorney General, of counsel in A-4343-16 and A-4797-16; Gregory R. Bueno, Deputy Attorney General, on the briefs in A-0042-16 and A-4797-16; Erica R. Heyer, Deputy Attorney General, on the brief in A-4339-16; Christopher C. Josephson, on the brief in A-4343-16).
Before Judge Sabatino, Sumners, and Mitterhoff.
The opinion of the court was delivered by
MITTERHOFF, J.S.C. (temporarily assigned).
Appellants K.G., C.C., J.L., and D.C. are convicted sex offenders who are monitored by respondent New Jersey State Parole Board (the "Board") as offenders who are subject to parole supervision for life ("PSL") under N.J.S.A. 2C:43-6.4. Each appellant challenges certain conditions of PSL that the Board has imposed upon them. Most of the challenged conditions involve restrictions on appellants' Internet use. The instant appeals follow in the wake of the New Jersey Supreme Court's decision in J.I. v. N.J. State Parole Bd., 228 N.J. 204, 155 A.3d 1008 (2017), which addressed the parameters of the Board's authority to impose conditions restricting Internet access. The four appeals were calendared back-to-back, and we consolidate them for the purposes of this opinion.
For the reasons that follow, we affirm in part, reverse in part, and remand in part. In particular, we reach the following major legal conclusions: (1) the Board's imposition of Internet monitoring conditions upon PSL offenders, including the use of monitoring software, mandatory password disclosure, and unannounced device inspections, does not facially violate the constitutional protections against unreasonable searches or the constitutional rights to privacy; (2) the Board's use of the terms "Internet-capable device," "social networking service," "frequenting establishments whose primary purpose is the sale of alcohol," and "sexually-oriented websites, material, information or data" does not violate due process under the void for vagueness doctrine; (3) all conditions restricting Internet access, including monitoring conditions, should be reasonably tailored to the circumstances of the individual offender, "taking into account such factors as the underlying offense and any prior criminal history, whether the Internet was used as a tool to perpetrate the offense, the rehabilitative needs of the offender, and the imperative of public safety[,]" J.I., 228 N.J. at 224, 155 A.3d 1008 ; and (4) in the administrative appeals process, PSL offenders are not entitled to discovery and are only entitled to a hearing when warranted based on "the timing of and justification for the Internet restriction, the severity and length of the restriction, whether facts are contested or uncontested, and whether credibility determinations must be made." Id. at 233, 155 A.3d 1008.
Table of Contents
(Background)
(Background on PSL)
We begin with a discussion of the PSL statute and of the constitutional limits on the Board's ability to impose conditions of PSL restricting Internet access. "Community supervision for life was ‘designed to protect the public from recidivism by defendants convicted of serious sexual offenses.’ " Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 237-38, 952 A.2d 1060 (2008) (quoting Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 184, 845 A.2d 687 (App. Div. 2004), certif. granted, 182 N.J. 140, 861 A.2d 845 (2004), appeal dismissed, 187 N.J. 487, 901 A.2d 951 (2006) ).1 Individuals who have been convicted of certain sexual offenses enumerated in N.J.S.A. 2C:43-6.4(a) must serve, in addition to any existing sentence, a special sentence of parole supervision for life commencing upon the offender's release from incarceration. N.J.S.A. 2C:43-6.4(a) and (b).
PSL offenders remain in the legal custody of the Commissioner of the Department of Corrections, are supervised by the Division of Parole, and are "subject to conditions appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b). These conditions include general conditions that are imposed upon all PSL offenders and special conditions imposed upon individual PSL offenders that are "deemed reasonable in order to reduce the likelihood of recurrence of criminal or delinquent behavior." N.J.S.A. 30:4-123.59(b)(1) ; see also N.J.A.C. 10A:71-6.12(d) (listing general conditions); N.J.A.C. 10A:71-6.12(n) ("Additional special conditions may be imposed by the District Parole Supervisor ... when it is the opinion that such conditions would reduce the likelihood of recurrence of criminal behavior."). A violation of a PSL condition may be prosecuted as a third-degree crime, N.J.S.A. 2C:43-6.4(d), or treated as a parole violation, N.J.S.A. 2C:43-6.4(b). Additionally, an offender who violates a PSL condition may be subjected to additional special conditions. See N.J.S.A. 30:4-123.60(a).
Appellants maintain that the restrictions imposed upon them cannot be sustained in light of the Supreme Court's decision in J.I. In J.I., a parolee subject to community supervision for life ("CSL") challenged a special condition that barred him from using a computer or Internet-capable device unless authorized by the District Parole Supervisor. Id. at 210-11, 155 A.3d 1008. After J.I.'s release from confinement in October 2009, the parole authorities discovered that J.I. had accessed multiple websites depicting nude minors in January 2010. Id. at 212, 155 A.3d 1008. The parole authorities also arrested J.I. for possessing and using a cell phone with Internet capability in October 2010. Ibid. Thereafter, the Board found that J.I. had violated conditions of CSL and returned him to confinement at the Adult Diagnostic and Treatment Center. Ibid.
When J.I. was released from confinement in October 2012, he was required to adhere to a general condition of supervision that prohibited him from accessing social-networking websites. Id. at 213, 155 A.3d 1008. As of December 2013, J.I. had complied with this condition. Ibid. Nonetheless, in response to J.I.'s request to modify the social-networking condition to allow J.I. to access LinkedIn, the District Parole Supervisor imposed a more stringent Internet restriction barring "J.I. from accessing the Internet for any purpose other than employment purposes, subject to his installing monitoring software on his computer." Ibid. The District Parole Supervisor justified this restriction based on J.I.'s previous violations of conditions of CSL in January and October 2010. Ibid.
J.I. violated this special condition by visiting seemingly benign, non-work-related websites. Id. at 214, 155 A.3d 1008. In a March 2017 meeting, the District Parole Supervisor stated that J.I. was only permitted to use a computer or access the Internet with advance approval from the District Parole Supervisor and only for work-related purposes. Ibid. On administrative appeal, the Board denied J.I's request for an evidentiary hearing and affirmed this near-total Internet ban, based on J.I.'s "willful disregard of the prohibition against accessing non-work-related websites." Id. at 215, 155 A.3d 1008.
The Supreme Court held that the Internet-use conditions imposed upon J.I. could not automatically be sustained. Id. at 230, 155 A.3d 1008. Initially, the Court noted that "[t]o read our statutory scheme as allowing greater restrictions on the liberty of CSL offenders than are necessary would needlessly raise questions about its constitutionality." Id. at 227, 155 A.3d 1008. In so holding, the Court cited various federal court cases limiting Internet restrictions on parolees. See id. at 226-29, 155 A.3d 1008 ; United States v. Albertson, 645 F.3d 191, 199 (3d Cir. 2011) (); United States v. Thielemann, 575 F.3d 265, 277-78 (3d Cir. 2009) (); United States v. Crandon, 173 F.3d 122, 127-28 (3d Cir. 1999) (). The Court "agree[d] 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." J.I., 228 N.J. at 211, 155 A.3d 1008.
Accordingly, the Court instructed that "Internet conditions should be tailored to the individual CSL offender, taking into account such factors as the...
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