Retroactive application of GPS-Monitoring of Sex Offender Found Unconstitutional

By Maynard & Sumner, LLC of Maynard & Sumner, LLC posted in Megan’s Law on Monday, September 22, 2014.

In a 4-3 opinion, the Supreme Court of New Jersey announced that they found retroactive application of GPS-monitoring to a sex offender who committed his originating sex offense twenty-three (23) years ago, a violation of Ex Post Facto laws of the United States and New Jersey Constitutions. In the matter of Riley v. New Jersey Parole Board, Riley was originally convicted of second degree attempted sexual assault of a minor in 1986, and was sentenced to prison. Shortly after his release in 2009, Riley was categorized as a Tier 3 offender (highest risk of re-offense) under Megan’s Law by the Superior Court. Shortly after his tiering, Riley received notice from the NJ State Parole Board that he was be placed on the Sex Offender Monitoring Act (SOMA), i.e. 24-hour GPS monitoring, on account of his Tier 3 status; however, Riley was not sentenced to Parole Supervision for Life (PSL) at the time of his original conviction because parole supervision did not exist at the time. Riley appealed the Parole Board’s retroactive application of SOMA, arguing that it was a violation of his constitutional rights.

In 2011, the Appellate Division reversed the Parole Board’s determination, stating that retroactive application of SOMA to Riley was unconstitutional, and violated the Ex Post Facto clauses of the United States and New Jersey Constitutions. The Parole Board appealed to the Supreme Court, arguing that GPS-monitoring is a civil remedy intended to protect the public from sex offender recidivism, and that SOMA is not punitive. (Note, civil remedies may be applied retroactively, however, punitive measures may not.) Therefore, the NJ Supreme Court was asked to determine whether GPS-monitoring was punitive.

On this question, the Supreme Court made the following statement:

“In the end, we conclude that SOMA’s adverse effects are ‘so punitive . . . as to negate the State’s intent to deem it only civil and regulatory.’ [Internal citation omitted] (“The physical and practical realities of the [GPS monitoring] program . . . transform the effect of the scheme from regulatory to punitive.”). The retroactive application of SOMA to George Riley twenty-three years after he committed the sexual offense at issue and after he fully completed his criminal sentence violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions.”

In conclusion, the matter was remanded to the New Jersey Parole Board for enforcement of the judgment.

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  1. […] Three – These Megan’s Law registrants may have a GPS bracelet attached to their ankle, and may have the police walk door-to-door, notifying all neighbors within […]

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