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May 8, 2017

New Jersey Supreme Court upholds polygraph exams for sex offenders under supervision

The New Jersey Supreme Court today issued a notable opinion rejecting challenges to the use of lie detector tests for sex offenders subject to parole or other community supervision. The opinion in J.B. v. New Jersey State Parole Board, No. 077235 (NJ May 8, 20107) (available here) gets started this way:

Petitioners L.A., R.L., and W.M. (parolees) challenge the constitutionality of the practices of the New Jersey State Parole Board (Parole Board) in administering polygraph examinations to sex offenders serving either parole supervision for life (PSL) or community supervision for life (CSL) sentences pursuant to N.J.S.A. 2C:43-6.4.

The parolees are all convicted sex offenders who have been released into the community subject to monitoring by the Parole Board.  For substantially similar reasons, they object to the administration of periodic polygraph examinations, which are required under the terms of their parole.  The parolees raise constitutional claims based on the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, and constitutional privacy interests.  They also contend that the Parole Board’s regulations are arbitrary and capricious.

The Appellate Division upheld the Parole Board’s use of polygraph examinations but directed the Parole Board to adopt revised regulations to explain more clearly that the machine-generated test results cannot be used as evidence to support independent criminal charges or to impose additional sanctions.

For the reasons set forth in this opinion, we affirm but modify the Appellate Division’s opinion.  We uphold the Parole Board’s use of polygraph testing with the same limitations as the Appellate Division, but add that the Parole Board’s regulations must be further supplemented to buttress the parolees’ Fifth Amendment right against self-incrimination.

May 8, 2017 at 11:59 PM | Permalink

Comments

http://www.ca10.uscourts.gov/opinions/15/15-1033.pdf

Posted by: Tuna | May 9, 2017 12:07:21 AM

Former sex offenders will have to band together to develop a resistance against this law.

Posted by: william r. delzell | May 9, 2017 12:44:57 AM

So what this ruling says is, in effect, is that once convicted of a crime one can be harassed by the executive indefinitely. I say harassment because by the court acknowledges that these tests have no legal or phrenological purpose other than harassment. Not to even mention they fact that they have no scientific reliability or validity.


Crazy.

Posted by: Daniel | May 9, 2017 9:51:14 AM

Daniel. I found your comment unfortunate. The purpose of this testing is not adversarial nor punitive. It is therapeutic. It is a therapeutic conversation starter. I therefore agree with the appellate decision. Any threats of return to prison enhance the likelihood of success of treatment.

Posted by: David Behar | May 9, 2017 10:38:59 AM

That opinion seems to has an excess amount of exposition -- so much talking about what is involved, much less actual legal analysis.

Posted by: Joe | May 9, 2017 10:42:27 AM

@David:

In your experience, are the thumb screws or the rack better at getting patients to open up to you within the therapeutic context?

Posted by: Guy | May 9, 2017 11:25:46 AM

I didn't read the opinion entirely, so I cannot evaluate Joe's view. I think a broader question is merited--how did we get to a place where a person under a non-incarcerative life sentence can, as Daniel puts it, harassed for life? Parole obviously involves some degree of intrusion into one's life--there are reporting requirements, job requirements etc. Yeah, they probably suck, and yeah they are, within limits, constitutional. But super-intrusive questioning backed up by polygraphs? This is where we are.

I think we've gotten here, in part, because our courts have abandoned traditional ideas of the boundaries of rights/government conduct. If we're going to shrink the Second Amendment, expand the Sixth and do all sorts of things, we've gotten to a place where the judiciary gets to make up whatever rules it wants, and things that should be protected, i.e., a person's most private things (e.g., fantasies, thoughts) don't get protected. What kind of society tolerates that sort of intrusion backed up by criminal penalties? Yes, I get it, they are parolees. So what? Is opening up one's mind to the scrutiny of a government actor part of a sentence? Anyone with a modicum of understanding of our heritage would recoil at the notion. And here we are--a judicial opinion legitimizing such a tyrannical practice.

Count me disgusted. And when will the inevitable leap be made be made to those who haven't been convicted?

Posted by: federalist | May 9, 2017 11:28:52 AM

The final result of the NJ case would appear to be very similar to that of the Colorado case Tuna cites. As I read the CO case nothing stops the state from mandating that providers continue to use polygraphs as part of their process, only that the results of that examination not be communicated back to law enforcement.

Posted by: Soronel Haetir | May 9, 2017 11:34:41 AM

A 2A case is one of the "relists" covered here:

http://www.scotusblog.com/2017/05/relist-watch-103/#more-255661

Posted by: Joe | May 9, 2017 12:00:08 PM

"It is therapeutic. It is a therapeutic conversation starter."

Just like civil commitment.

Posted by: Daniel | May 9, 2017 12:30:46 PM

Daniel . The average pedophile has 400 victims. The average exhibitionist? Get your calculator out. The number of victims will be in the 1000's. So, yes, limited application of civil commitment is a really good idea.

Posted by: David Behar | May 9, 2017 1:04:03 PM

Guy. Calm down.

Posted by: David Behar | May 9, 2017 1:05:05 PM

" The average exhibitionist? Get your calculator out. The number of victims will be in the 1000's"

The average number of victims of a David Behar post? Get your computer out. It will be in the millions.

Posted by: Daniel | May 9, 2017 2:46:22 PM

Daniel. No one comes close to the lawyer reptile in number of crime victims caused its total failure. It allows 99% of crime to go unanswered. And, when they have a guy, it is the wrong guy 20% of the time.

Posted by: David Behar | May 9, 2017 3:16:34 PM

@ David Behar

Give us links to the so called facts you spout.....i.e. 400 victims; wictims will be in the 1000's

We want to see the "truth" your putting forth. Give it, or stop telling lies.

Posted by: Book38 | May 9, 2017 4:36:04 PM

Anyone that believes polygraph tests are a conversation starter needs to be on the other end of that conversation. I do find that the ruling states that a person can invoke his fifth amendment rights with no penalty. Given the false positives that happen frequently with polygraph, I would say you should invoke the 5th for every question because the potential exists. So what would be the point of even doing one?

Posted by: Anne | May 9, 2017 7:30:22 PM

Anne. You are arguing, the polygraph has no legal validity. This is settled law. It should not be used in any custodial interview, where the 5th Amendment applies. There are as many false negatives as false positives. One may lie without effect on the test by taking any sedative, including two glasses of wine before the exam.

So, why do you object to its use, since it cannot be used legally? Its only usefulness is for therapeutic purposes.

Posted by: David Behar | May 9, 2017 9:33:54 PM

Yo, Book38. Stop defending vicious child abductors and rapists. Maybe, you should have a polygraph test, for therapeutic purposes, of course.

The number I gave you applies to pedophile child molester. 40 million males and females have been sexually abused by these people. This abuse is not being pinched on the bottom. This is forced sex acts. There are about 100,000 perpetrators. Compare to the 500,000 registered sex offenders who are not that dangerous, and should not be registered or tracked. Their being on registries is just more evidence of extreme lawyer stupidity. That comes out to an average of 400 per real offender. There is likely a distribution of such offenders with some committing dozens of sexual assaults on children, and others, thousands. If rape is markedly under-reported, then child sexual abuse is under-reported to a point of ridiculousness, again, not the pinch but the all out forced sex act. The number is likely to be much higher than the official ones.

Then are offenders not even on the lawyer radar. Why? Because the lawyers are the stupidest people in our country. There are infantophiles who are not even being arrested or counted. They butt fuck babies who cannot speak, and who cannot remember what was done to them before age 3. So they cannot be surveyed to get a more accurate count of victimization. That group of silent victims may represent millions more completely unprotected set of victims. Thank the lawyer for more millions of non-verbal infants being sexually molested by the lawyer client.

These predators are as fixed in their sexual preferences, and in their sexual habits as anyone else is. Telling them to stop chasing children has the same validity as asking a heterosexual male to stop preferring developed females.

As to the exhibitionist, a real one has trouble getting sexual gratification without self exposure. Again, I am not speaking of drunken college kids at Mardi Gras or on Spring Break. You do the math. Guy needs to masturbate twice a day. He has two victims a day for a year times 20 years. How many victims does that amount to? That is a third grade word math problem for the lawyer set. I know you lawyers can do it.

Posted by: David Behar | May 9, 2017 10:20:47 PM

If validated, this technology should help to reduce crime.

http://www.telegraph.co.uk/technology/2017/05/10/emotion-reading-technology-could-spot-criminals-act/

Posted by: David Behar | May 10, 2017 6:18:37 PM

The use has not been focused solely on therapeutic. It has become a tool used in the monitoring of probation and supervised release. Probation officers use a false positive to deny privileges and to intimidate. The questions ask are not a conversation starter, they only incite anxiety.

Posted by: Anne | May 10, 2017 6:43:46 PM

@ David Behar

The number I gave you applies to pedophile child molester. 40 million males.....

Still no link to figures you quote. Your just like all the other trolls, you give figures you made up in your head or heard at the water cooler.

Society wants facts...not rumors.

Give us the links to the figures you quote please.


Posted by: Book38 | May 10, 2017 8:12:48 PM

If they can't be used as evidence to support independent criminal charges or to impose additional sanctions, why force offenders to take them?

Posted by: Huh? | May 14, 2017 5:31:03 PM

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