Sex Offenders

State of NJ v. F.W. – New Sex Offender Supervision Decision Discusses, Among Other Things, the Minefield of Sex Offender Supervision Regulations

January 25, 2016 | By James S. Friedman, LLC

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. Continue reading ›

Grady v. North Carolina – Satellite-Based Monitoring of Sex Offenders Can Violate Fourth Amendment Rights

May 11, 2015 | By James S. Friedman, LLC

The United States Supreme Court decided Grady v. North Carolina on March 30, 2015. After completing his prison term for sex offenses, the State determined that Grady was a recidivist sex offender, and wanted to place him on satellite-based monitoring. Grady argued that the monitoring program, which required him to wear a monitoring device at all times, violated his Fourth Amendment right to be free from unreasonable searches and seizures. Grady’s argument was based on U.S. v. Jones, where the Supreme Court held that installing a GPS tracking device on a suspect’s car was a “search” within the meaning of the Fourth Amendment. The State courts rejected Grady’s argument, finding that the monitoring program at issues was not a Fourth Amendment search. This conclusion was based, apparently in large part, upon the view that the proceeding giving rise to the monitoring was civil in nature, whereas Jones was a criminal case, which entailed different (higher) legal standards.

The Supreme Court rejected the reasoning of the State courts. First, the monitoring program was a “search” because it enabled the State to “physically intrude on a constitutionally protected area … [A] State conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” The fact that the monitoring program was civil in nature was rendered meaningless by settled law establishing “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations [] and the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”

Ultimately, however, the Court observed that the Fourth Amendment protects only against unreasonable searches and seizures. Thus, it remanded the matter to the North Carolina courts to determine whether the monitoring program was reasonable when viewed as a search. Continue reading ›

After 20 Years, New Jersey’s Megan’s Law Has Accomplished Little

November 3, 2014 | By James S. Friedman, LLC

It has been 20 years since New Jersey enacted Megan’s Law, which require convicted sex offenders to register with local authorities in the community where they live. Whether and to what extent the law has accomplished anything remains a hotly debated subject.

Briefly, the law requires, among other things, that convicted sex offenders undergo an assessment that is supposedly geared towards determining their risk of re-offending. Offenders in the lowest tier (one) are placed under what is considered to be the most lenient level of supervision. Offenders in tiers two and three are supervised more strictly, and appear on the New Jersey State Police Internet Sex Offender Registry. The other States and the Federal system have enacted similar laws.

A State-wide army of parole officers are charged with supervising convicted sex offenders throughout New Jersey. Once an offender is placed under parole supervision, the parole officer responsible for their case has tremendous latitude over where they can live and work and what kind of job they can have. An offender’s parole officer can also restrict their ability to socialize with minors, even if the latter are members of the offender’s own family. It is extremely difficult to challenge the actions of a parole officer. Typically, the offender must receive a determination from the parole board that denies their request to adjust the terms or conditions of their supervision. That determination must then be appealed to the Appellate Division of the New Jersey Superior Court. The overall process of challenging restrictions can easily take a year or more. Continue reading ›