The latest decision from the NJ Appellate Division involving sex offenders, State v. F.W., consists largely of a rather complex discussion concerning the interrelationship of Community Supervision for Life (“CSL”), Parole Supervision for Life (“PSL”), The Sex Offender Monitoring Act (“SOMA”), and the Ex Post Facto clauses of the Federal and New Jersey State Constitutions. That part of the decision is for attorneys and academics. However, the decision is noteworthy because it reviews significant elements of the regimen used to supervise sex offenders living in the State. Offenders subject to CSL or PSL and related requirements such as GPS monitoring need to understand the array of rules and restrictions governing their movements in the community, and their rights if they are accused of a violation.
Sex offenders in New Jersey, like most States, are subject to a bewildering array of regulations. Sex offender supervision in New Jersey began with CSL, which was enacted in 1994 as part of Megan’s Law. The Legislature enacted the current supervision law, PSL, in 2003. The number of defendants sentenced under CSL is dropping with the passage of time, but there are still many CSL offenders in the parole supervision system. F.W. was sentenced under CSL.
The decision reminds us that CSL and PSL differ in several significant ways. A violation of CSL is a crime and must be handled as any criminal case. Thus, the matter is heard by a Superior Court judge, and the defendant is represented by competent defense counsel and has all of the procedural protections typically afforded a criminal defendant. In sharp contrast, PSL offenders who violate the terms and conditions of their supervision can have their matters prosecuted as a criminal case involving a fourth degree charge or, alternatively, have their matters disposed of as parole violations. If the latter course is adopted, the matter will be heard by the Parole Board. The offender will have a relatively cursory administrative hearing before the Board that lacks all of the procedural protections available in a regular criminal case. As to punishment, the Board can revoke parole and return the offender to prison. Additionally, a CSL defendant adjudicated guilty of a violation and sentenced to a prison term can ultimately be released on parole. PSL defendants who are imprisoned as a result of violations (even if the violation stems from an offense identical to that committed by a CSL defendant) may not be released on parole. Thus, with respect to violations, a PSL offender will have fewer procedural protections than a CSL offender, but could face the same or even greater punishment.
The F.W. decision also discusses SOMA, which the Legislature passed in 2007. SOMA either requires or authorizes the Parole Board to impose GPS monitoring on certain convicted sex offenders. The determination is based upon the type of sex offense the offender committed, the offender’s Megan’s Law tier, and whether the offender is subject to CSL or PSL. Notably, SOMA gives the Parole Board Chairman discretion to require ongoing GPS monitoring for any offender they deem appropriate for such treatment. In making this assessment, the Chairman can consider, among other things, any factors s/he deems applicable. Put somewhat differently, and depending upon the facts and circumstances of the case, an offender can be placed on lifetime GPS monitoring, and the Parole Board has very wide latitude in determining whether such treatment is warranted.
The Court also observed that the applicable regulations provide an offender with the due process right to be heard before monitoring is imposed. The regulations also call for a review after 90 days, and set a maximum time limit of 180 days for the monitoring, after which it will be terminated unless the Board decides it is still warranted.
The decision highlights, among other things, the considerable power that the Parole Board has over the sex offenders it supervises. Offenders who are aggrieved by a decision of the Board can appeal to the Appellate Division, but the Board’s decisions are heavily insulated by the level of deference the Legislature has granted the Board as expressed in the Statute. Aggrieved offenders seeking review of a Board determination require a skilled appellate attorney to mount such an appeal.
James S. Friedman LLC represents defendants on appeals to the Appellate Division of the New Jersey Superior Court, and to the United States Court of Appeals for the Third Circuit. If you or someone you know is seeking to appeal an adverse result from a court or administrative body, contact the firm to discuss your options.