A case argued Tuesday at the New Jersey Supreme Court will determine whether a state statute requiring GPS monitoring of sex offenders released from jail can be applied retroactively.
Lawyers argued over whether the 2007 Sex Offender Monitoring Act is a civil remedy, designed to rehabilitate an offender and protect the public, or a form of punishment that triggers the U.S. Constitution’s ex post facto clause.
A lower court found the law is punitive and therefore can be applied only prospectively, but the state appealed in Riley v. State Parole Board.
“There is no question that the Legislature enacted [SOMA] as a civil, remedial measure,” Deputy Attorney General Lisa Puglisi told the justices at Tuesday’s arguments.
A sex offender who is required to wear the GPS tracker, attached to an ankle bracelet, “can move freely about and live or travel anywhere,” she said. “There is no physical restraint.”
Justice Jaynee LaVecchia asked if the statute is really meant as a deterrent to further sexual offenses, which equates to being punitive.
“There needs to be proof that the statute is so punitive that it overrides the legislative intent,” Puglisi replied, saying that is not the case here. “There may be collateral consequences, but deterrence is intertwined with rehabilitation.”
Justice Barry Albin asked whether Puglisi would consider an ankle bracelet more than an inconvenience if she had to wear it.
“No more than carrying my cellphone,” Puglisi said.
Albin said that so long as the goal is public safety, why not require people convicted of other crimes to wear GPS trackers.
“The Legislature has determined that sex offenders pose an unacceptable risk to the community,” Puglisi said.
Under questioning from LaVecchia, Puglisi conceded that there is some restriction on the freedom of movement because the wearer is required to tether himself or herself to an electrical outlet for up to two hours a day in order to keep the device charged.
Stephen Orlofsky, representing the offender George Riley, said the statute clearly carries punitive consequences.
“The attorney general is a little cavalier about the issues regarding the device,” said Orlofsky, a former federal judge now with Blank Rome in Princeton. “It’s cavalier to say there are minor inconveniences. [Riley] lives with it, sleeps with it, bathes with it. However well-intentioned the Legislature may have been…the overall effect is certainly punitive.”
Justice Anne Patterson noted that the court already has ruled that some sex offenders may be subjected to registration, involuntary civil commitment and community notification after they have completed their sentences. How, she asked, is wearing a GPS tracker on an ankle bracelet more onerous?
“Because Big Brother is with you 24 hours a day and is watching you,” Orlofsky said. “To me that is more onerous than public notice.”
Alexander Shalom, appearing for the amici Office of the Public Defender and the American Civil Liberties Union of New Jersey, argued the Appellate Division ruling should be upheld.
“Monitoring can only be compared to parole, and that is considered punishment,” said Shalom, an ACLU staff counsel.
In August 2009, shortly after Riley’s release from prison, the state Parole Board notified him that since he had been classified as a Tier III offender highly likely to commit another sex crime, he would be required to wear a GPS device on his ankle 24 hours a day. The device was attached over Riley’s objections. The Parole Board refused to reconsider its decision and Riley appealed.
In a 2-1 ruling, Appellate Division Judges Stephen Skillman and Marianne Espinosa disagreed with the state’s arguments that Doe v. Poritz, 142 N.J. 1 (1995), and Smith v. Doe, 538 U.S. 84 (2003), which upheld sex offender registration and notification requirements in New Jersey and Alaska as being regulatory and nonpunitive, were dispositive.
The judges looked instead to Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009), where the Massachusetts Supreme Court struck down retroactive application of a similar GPS monitoring law as unconstitutional.
Dissenting Judge Anthony Parrillo said that while a tracking device might be “physically burdensome,” its mandated use does not rise to the level of a direct and punitive disability or restraint.