Retroactive GPS-Monitoring of Sex Offenders Ruled Unconstitutional

Individuals Convicted of Sex Offenses Prior to Passage of CSL/PSL Cannot Be Compelled to Wear GPS Monitoring Devices, High Court Rules

On May 22, 2014, the New Jersey Supreme Court, in a 4-3 decisions, ruled that compelling an individual with a 25-year-old sex offense conviction that to wear an electronic GPS-monitoring bracelet violated the Ex post facto clauses of both the United States and the New Jersey State Constitutions. The case, Riley v. New Jersey State Parole Board, arose from Mr. Riley’s 1986 conviction for second degree, attempted sexual assault, a conviction that long predated the passage of New Jersey’s Sex Offender Monitoring Act (SOMA), in 2007. SOMA authorizes the State Parole Board to require anyone with a sex offense conviction who has been categorized as Tier 3 (the highest risk of re-offense) under Megan’s Law, to wear a GPS-monitoring bracelet, 24-7, for the rest of their lives.

After his release from prison in 2009, the Monmouth County Superior Court found that Mr. Riley qualified for the Tier 3 designation, requiring posting of his identity and criminal history on the States Sex Offender Internet Registry (SOIR) and as well as door-to-door notification within his neighborhood pursuant to Megan’s Law, passed in 1994. The New Jersey courts have held that Megan’s law is a civil statute, with no punitive intent, and consequently it can be applied retroactively to individuals whose offenses predated passage of the law.

Subsequent to his Tier 3 designation, the State Parole Board advised Mr. Riley that he would be required to wear the GPS-monitoring bracelet. Typically, the bracelet has been used as part of monitoring individuals on either Community Supervision for Life (CSL) or Parole Supervision for Life (PSL), which were passed in 1994 and 2004 respectively. As Mr. Riley’s offenses predated passage of either of those laws, which the State Supreme Court has held do constitute a form of punishment, Mr. Riley was subject to neither CSL or PSL restrictions. He thus challenged the Parole Board’s authority to require him to submit to their monitoring and supervision, which challenged was denied by the Parole Board.

Mr. Riley appealed, and in 2011, the Appellate Division of the New Jersey Superior Court, in a 2-1 split decision, ruled in favor of Mr. Riley, holding that GPS-monitoring closely resembled parole supervision for life and thus was punitive. The Court found retroactive application of the law to Mr. Riley violated the State and Federal Constitution’s prohibitions on the passage of ex post facto laws (laws that increase the penalty for commission of a crime after the crime has been committed or which makes conduct that was not illegal at the time it was committed, subsequently illegal). The Appellate Division ordered that the bracelet be immediately removed from Mr. Riley.

The State Parole Board appealed to the New Jersey Supreme Court and requested a stay of the lower court’s order to remove the GPS device. The Supreme Court granted the stay and accepted the case for review. On appeal, the State Parole Board argued that SOMA was a civil remedy, remedial in nature, and not punitive, and thus could be retroactively applied, in the same manner as the notification requirements of Megan’s Law.

Ultimately, the New Jersey Supreme Court had to determine whether or not SOMA was primarily punitive or remedial in nature, as the ex post facto determination turned on this question. The High Court reached the following conclusion.

 “In the end, we conclude that SOMA’s adverse effects are ‘so punitive . . . as to negate the State’s intent to deem it only civil and regulatory.’ [Internal citation omitted] (“The physical and practical realities of the [GPS monitoring] program . . . transform the effect of the scheme from regulatory to punitive.”). The retroactive application of SOMA to George Riley twenty-three years after he committed the sexual offense at issue and after he fully completed his criminal sentence violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions.”

Having found the retroactive application of SOMA of Mr. Riley violated the Ex Post Facto clause, the court remanded the matter back to the State Parole Board for appropriate action in light of its ruling.

Later that same day, a State Parole Officer arrived at Mr. Riley’s home and removed the GPS Monitoring bracelet. According to State Parole Board officials, as many as 125 Tier 3 individuals currently wearing GPS monitoring devices may be affected by the ruling.