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January 23, 2016

New Jersey appeals court upholds parole board's monitoring of sex offenders using lie detector machines

As reported in this local article from New Jersey, a local "appeals court on Thursday upheld the state Parole Board's use of polygraph tests to monitor sex offenders after their release from prison." Here is more about the extended ruling:

The panel of state judges largely rejected the argument of five sex offenders sentenced to lifetime supervision that the tests amounted to coerced interrogations that violated their constitutional rights.  The court found, however, that the board must take steps to protect the offenders' right against self-incrimination and that the test results alone could not be used to justify punishment.

Under state law, all sex offenders sentenced to lifetime monitoring can be subjected to the examinations, popularly referred to as "lie detector" tests.  The tests are used to help parole officers determine whether the offenders are adhering to treatment plans and the terms of their parole.  But critics point out that the tests can be unreliable, and their results aren't allowed to be used as evidence in most criminal cases.

Currently, there are 7,469 offenders being monitored by the state that could be subject to polygraph tests.  Samuel J. Plumeri, Jr., the vice chairman of the New Jersey State Parole Board, said in an e-mail the use of the tests was "dependent upon an assessment" of each offender's case....

A 2009 Parole Board report on the use of polygraph tests described them as "an essential tool" for monitoring sex offenders.  The technology, the report found, "appears to encourage honesty with parole officers and treatment providers" and prevent convicts from re-offending.

But Michael C. Woyce, an attorney for the five sex offenders — whom the court identified only by their initials — argued the tests were unconstitutional because the subjects weren't permitted to have an attorney present, weren't read their Miranda rights and could face sanctions by refusing to answer "intrusive" questions.  The Public Defender's Office, which also argued in the case, also called the tests both "unfair" and "extremely unreliable."

Woyce said the technology has largely fallen out of favor in criminal courts, but persists in the monitoring of sex offenders because of the stigma attached to their crimes.  "Being labeled a sex offender is a scarlet letter," Woyce said. "Because of that, the courts often — not always, but often — treat them differently."  Woyce said offenders who do not cooperate or perform poorly on the tests can have their access to the internet revoked, be prohibited from traveling out of state, or be subject to GPS monitoring without due process.

The court rejected the sex offenders' argument that they were entitled to have an attorney present during the tests under the Sixth Amendment, finding they were not the same as a criminal interrogation.  "The subject can face later consequences if he chooses to leave before the examination is completed but, unlike an arrestee at a police station, he is not subject to immediate confinement if he refuses to cooperate," the judges wrote.

But recognizing that New Jersey courts consider polygraph test results "unreliable proof," the 72-page ruling prohibits parole officers from using them "as evidence to justify a curtailment of an offender's activities."  If in the course of a polygraph an offender admits any wrongdoing, that could be used against them, however, and the court ordered the board to adopt "regulations and practices to protect the offenders' privileges against self-incrimination."

The full ruling in JB v. New Jersey State Parole Board, No. A-5435-10T2 (NJ App. Jan. 21, 2016), is available at this link.

January 23, 2016 at 11:18 AM | Permalink

Comments

I'd be interested to know how intrusive the questions are. At some point, there's a right to tell the parole officers to jump in a lake. Whether or not NJ gets this right from a constitutional standpoint--I am concerned that the government degrades itself at some point.

Posted by: federalist | Jan 23, 2016 12:03:08 PM

This is another example of a type of law that could put law enforcement personnel themselves at extra needless risk of injury or murder.

Some former sex offenders might become sufficiently fed up with these intrusive laws of taking a lie detector test without an attorney present, etc., that may go off the deep end and seek revenge against these laws by targeting their interrogators or other law enforcement personnel for death.

In Savannah, Georgia, for example, we have had at least one case of a former sex offender actually making bomb threats against a local registry in that city. Fortunately, the threat was phony and nobody got harmed as a result of that threat.

But my point is that these laws don't make us law-abiding citizens any safer but actually put those in charge of protecting our safety at needless risk to their own persons.

Posted by: william r. delzell | Jan 23, 2016 12:57:22 PM

It seems to me that what the court took away from SO it gave them right back. So the state can do lie detector tests BUT they cannot be used to curtail any activity (which is what the had been doing) and they have to adopt procedures against self-incrimination. Those two limitations make the ruling seem like a net LOSS for the state. It upheld the form of the examination but gutted it of almost all consequence. Why would the state in want to bother now?

Posted by: Daniel | Jan 23, 2016 9:45:18 PM

Daniel:

Busywork! Full Employment and wasting taxpayer dollars, something they are expert at.

Don Quixote lives.

Posted by: albeed | Jan 24, 2016 8:47:14 AM

Once again the SO is SOL.
Polygraphs have been proven unreliable in criminal proceedings but it seems like it's OK to use them as some kind of trumped up evidence against SO's. (And I'm certain the SO is having to pay out of his/her own pocket for the polygraph.)
This country and it's laws are going to hell in a handbasket!

Posted by: kat | Jan 24, 2016 8:58:41 AM

Daniel,

I suspect that depends on what is meant by 'self incrimination'. Okay, new criminal charges are out, but is it admissible as part of a probation revocation hearing (even if not sufficient on its own). Also, I would suspect the court would not say an investigation that started from a polygraph examination and develops other evidence is poisoned.

Of course, using it to show compliance with things like participation in therapy activities is incredibly stupid. Far easier to demand that the probationer state where they are attending then gather records from that party (even if the actual session were covered by some form of confidentiality the fact of the meeting would not be).

Posted by: Soronel Haetir | Jan 24, 2016 10:59:04 AM

@Soronel

That's not the way I read it.

"as evidence to justify a curtailment of an offender's activities."

That seems to speak to admissibility, not sufficiency. It cannot be admitted "as evidence" and there is no other purpose of a probation revocation hearing but to "curtail an offenders activities". So it's out, period.

Posted by: Daniel | Jan 24, 2016 3:08:12 PM

It looks like it was SO week in NJ. There were other cases just issued on the constitutionality of criminalizing GPS monitoring violations.

Posted by: Lou | Jan 24, 2016 8:17:34 PM

Sex offender posts on this blog consistently tends to be where you find the most sympathy for concerns of governmental overreaching.

Posted by: Joe | Jan 24, 2016 9:21:27 PM

"At some point, there's a right to tell the parole officers to jump in a lake." On the fed level, try that and you'll be back before the judge. Answering questions that indicate evasiveness will result in a repeat of the test and if the subsequent test is "indicative of failure" it will result in additional punitive sanctions on the parolee depending on the seriousness of the questions that implied falsehood and/or a trip back to the judge.


Daniel's remarks below are most likely the truest indicator of why they continue to require this on the federal level because science no longer supports the underlying theory behind lie detector testing and interpreting their results. There is no consistency from one examiner to the next.

"Daniel:

Busywork! Full Employment and wasting taxpayer dollars, something they are expert at.

Don Quixote lives."

Posted by: Fred | Jan 25, 2016 5:46:19 PM

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