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September 24, 2011

NJ appellate ruling limits new GPS monitoring of past sex offenders

As detailed in this local article, this past week a New Jersey "state appeals court ruled that forcing a sex offender convicted more than 20 years ago to comply with GPS monitoring rules that were enacted about four years ago violates his constitutional rights." Here are the basics:

In the 2-1 decision, the Appellate Division of Superior Court reversed a state parole board decision that required George C. Riley, a Tier III sex offender, to wear a GPS ankle bracelet. The court said the requirements of the monitoring program constituted a level of punishment that violates the constitutional provision barring retroactive laws.

“We conclude that although 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 ex post facto clause,” Judges Stephen Skillman and Marianne Espinosa said in their decision.

In his dissent, Judge Anthony J. Parrillo said while the GPS monitoring may be more burdensome than the yearly registration requirements for sex offenders, “it does not rise to the level of a direct and punitive disability or restraint,” and is far less restrictive than the involuntary civil confinement some sex offenders are subject to upon completion of their prison terms.

“Simply put, the majority's constitutional tolerance of laws that register, publicize, monitor and indefinitely institutionalize sex offenders after completion of their criminal sentences cannot logically be reconciled with its avowed distaste for a rule requiring the most serious sex offenders, who remain free to live, work and walk wherever they please, to submit to a form of electronic surveillance,” he wrote.

Because the appellate decision was split, if the state Attorney General’s Office files an appeal, the case would automatically be heard by the state Supreme Court.

The lengthy majority ruling (running 30+ pages) and the dissenting opinion (running 20+ pages) are available at this link.  I suspect the New Jersey Supreme Court will get asked to review this ruling, and I further expect this kind of technocorrections issue to get all the way to the US Supreme Court eventually.

September 24, 2011 at 12:13 PM | Permalink


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The dissenter seemed to be trying to manipulated the M-M factors in such a marginal manner that it lends me to believe that his mind was already made up, and he was trying to suit the constitutional arguments to his conclusion. But his methodology is not intellectually honest.

Basically, it comes down to this:

1. He compares GPS to Smith v. Doe, which is in fact very minimal in its original 2003 decision. No residency, employment, or technology restrictions existed. He admits that GPS is "slightly more" restrictive than Smith v. Doe.

2. However, he next compares GPS to OTHER forms of sex offender legislative restrictions, like the aforementioned residency and employment restrictions. When he compares it to THAT, of COURSE GPS in itself is, in many ways, less restrictive. I disagree with aspects of his argument, but for now I'll stipulate that GPS is less restrictive, in the sense that other people are not aware he's wearing it.

3. So by saying that GPS is LESS restrictive, he then makes the claim that this LESS restrictive satisfies community standards that the GPS regulation is regulatory, not punitive.

His other arguments around M-M are just as convoluted, but strive to achieve the objective: Keep RSO's in GPS beyond their sentence.

In my opinion, this should go higher. I really hope it does, because the dissent is a demonstration in how vacuous the arguments are of the statists trying to justify ex post facto sex offender enforcement.

Posted by: Eric Knight | Sep 24, 2011 8:15:13 PM

I concur with Eric Knight's comment above!

Posted by: book38 | Sep 24, 2011 10:32:33 PM

me i think the descenter is a traitorous little nazi who needs to be removed PERIOD!

Posted by: rodsmith | Sep 25, 2011 2:16:57 AM

In NJ, a dissent in the Appellate Division entitles the losing party (here, the State) to an appeal as of right to the Supreme Court. So, it is a virtual certainty that this case will be reviewed by the NJ Supreme Court.

Posted by: alex | Sep 26, 2011 9:14:00 AM

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