YOU READ IT HERE FIRST: In a surprising decision, a state appeals court has ruled that New Jersey authorities can’t electronically monitor certain sex offenders who were convicted before lawmakers in Trenton approved the practice four years ago.
In a 2-1 decision, the appellate judges agreed with 78-year-old convicted rapist George C. Riley that both the U.S. and New Jersey constitutions prohibit 24-hour GPS monitoring with an ankle bracelet if the requirements are so onerous that they amount to additional punishment for those sex offenders convicted before the state Legislature approved the program in August 2007.
“[A]lthough the Legislature’s intention in enacting the Sex Offender Monitoring Act was civil and nonpunitive, the act is so punitive in effect that it violates the [law],” Judges Stephen Skillman and Marianne Espinosa said in the decision, written by Skillman.
The requirements involve “affirmative disabilit[ies] [and] restraint[s]” similar to those that have “historically been regarded as a punishment,” they added. “Such an imposition is a serious, affirmative restraint.”
Judge Anthony J. Parrillo countered that the GPS requirement is better than being sent by a judge to a treatment center for an indefinite stretch after release.
It is also “far less intrusive, expansive and harsh than the consequences attending sex offenders under Megan’s Law, including notification of neighbors about a sex offender’s presence in their community and posting searchable online lists of at least some categories of registered sex offenders, effectively excluding them from a wider moral community and relegating them to a social quarantine of sorts,” Parrillo added, in a dissent longer than the majority opinion.
A Superior Court judge sent Riley, a former sanitation worker, to prison for 20 years after he phoned an 11-year-old girl whose family lived on his route and asked to have sex with her. Her parents notified police, who arrested Riley when he showed up at the house.
Two decades earlier, Riley was sent to prison for attacking young couples parked in lovers’ lanes in three Jersey Shore towns while wearing a ski mark, taking their money and, in some cases, raping the women.
Riley, who was released in 2009 after serving 23 years behind bars, won his case against the state Parole Board without an attorney. Lawyers for the American Civil Liberties Union and the state Public Defender’s Office joined the case, arguing on behalf of the principle.
There has been no indication yet whether the state Attorney General’s Office will appeal the decision to the New Jersey Supreme Court.
A jury in 1986 convicted Riley, who already was in prison for a parole violation, of attempted aggravated sexual assault.
After serving out his full sentence, Riley was released from the Adult Diagnostic and Treatment Center in Avenel in February 2009, with Tier III Megan’s Law restrictions that are entirely legal, records show.
Several months later, the Parole Board notified him that he also had to comply with monitoring and board supervision under the Sex Offender Monitoring Act signed into law in 2007 because he was deemed a high-risk offender, court papers show. That meant keeping a GPS tracking device fully charged and on him wherever he went.
Riley also was required to notify his parole officer whenever he traveled outside the state, moved to a new home or took a new job.
He objected, and in August 2009, a parole officer came to his house. Although Riley protested, the officer “installed the bracelet on his ankle and delivered the other equipment required to monitor appellant twenty-four hours a day, seven days a week,” according to court papers.
The pager-sized monitor is connected to a cell phone-sized unit that the offender must carry outside the house, usually on a waistband clip.
State officials argued that releasing convicted high-risk sex offenders without supervision creates a public safety risk because they are four or five times more likely to strike again than those without priors. What’s more, they argued, intensive supervision has proven to help rehabilitate offenders and better safeguard the public. Technology helps make that possible, they said.
The trouble in Riley’s case, the appeals judges said, was that the monitoring – even though it wasn’t enacted as additional punishment – has taken the registration and notification provisions that Megan’s Law placed on him to a deeper punitive level.
The elderly Riley “complains that this bracelet causes his leg to swell at night and is very uncomfortable when he sleeps or wears certain shoes,” the judges noted. He also “must pay some of the costs of this intrusive supervision, including the electrical service required to recharge the tracking device and the cost of repair or replacement of any GPS monitoring equipment that is lost or damaged.”
Riley can’t go very far because the device must be recharged every 16 hours, the panel found, adding that it keeps him from staying at a campground or other remote area.
What’s more, “if the tracking device stopped emitting signals in the middle of the night because it was not sufficiently charged or malfunctioned,” a parole officer has permission to enter the house without a warrant to find out what happened, the judges noted.
The board also required that Riley accept and acknowledge text messages and allow his parole officer unrestricted access to his home – giving state authorities enormous control over the man’s life, Skillman and Espinosa emphasized.
Governments are allowed to enact provisions that better protect the citizenry, the judges found, but these cannot prevent ex-convicts from living and working in the community once they’ve served out their sentences.
If they do, the panel said, what legislators meant to be a regulatory tool becomes a retroactive punishment, violating the Ex Post Facto Clause of the U.S. Constitution.
“The physical and practical realities of the [monitoring] program—the size and weight of the ankle bracelet and [tracking device], the requirement to remain in one place for six hours for daily recharging, the degree to which [monitoring] interferes with everyday work and recreation activities, the degree to which the program impedes enrollees’ freedom of travel, and its invasive requirement for consent to enter an enrollee’s home—transform the effect of the scheme from regulatory to punitive,” Skillman wrote.
“Accordingly, we reverse the final decision of the Chairman of the Parole Board rejecting appellant’s administrative appeal of the decision that he is subject to the Sex Offender Monitoring Act.”