Thursday, September 22, 2011

NJ - Court: Electronic monitoring of sex offender violates his constitutional rights

Original Article

It's about time a judge sees the laws for what they are! Now hopefully other judges who took an oath to defend the Constitution, will do the same? Also, will he also be taken off the online registry and not have to live by the residency restrictions, which are also ex post facto laws? Also, I am sure the AG will appeal, so it's not over yet.

09/22/2011

By Michelle Sahn

A 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.

In the 2-1 decision, the Appellate Division of Superior Court reversed a state parole board decision that required [name withheld], 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.

[name withheld] did not have an attorney – he filed briefs pro se, or acting on his own behalf – and he did not argue in court.

But the appellate division allowed both the American Civil Liberties Union of New Jersey and the state Office of the Public Defender to argue as a friend of the court – meaning that although those two groups did not represent [name withheld], they entered the case because of an interest in the legal issues surrounding it.

Alison S. Perrone, the Burlington County-based attorney who handled those arguments, said that with Thursday’s ruling, the court “reaffirmed a fundamental Constitutional principle – that a person can’t be subject to retroactive punishment.”

Lee Moore, a spokesman for the state Attorney General’s Office, said: “We’re still reviewing the decision and considering our legal options.”

[name withheld], of Eatontown, was sentenced to 20 years in prison for a 1986 attempted sexual assault. According to newspaper accounts from that time, [name withheld], an Eatontown sanitation worker, telephoned an 11-year-old girl, whose family lived on his route, and suggested they have an intimate relationship.

With permission from the girl’s family, police recorded the phone calls and [name withheld] was arrested when he showed up at the family’s home, the newspaper reports said.

He was convicted at trial and ordered to serve that sentence consecutive to a term he was already serving for a parole violation. According to newspaper stories, in the 1960s [name withheld] was sentenced to 62 to 65 years in prison for rape, robbery, assault and weapons offenses that occurred in several communities, including Colts Neck, Howell and Neptune. Those prison terms did not carry mandatory minimum sentences, according to records.

In the 1960s, he wore a ski mask and preyed on young couples parked in lovers’ lanes, according to newspaper accounts. In some cases, he assaulted the men with a rifle, then sexually assaulted the women, the newspaper said.

[name withheld], now 78, was released from the Adult Diagnostic and Treatment Center – the state’s prison for sex offenders in the Avenel section of Woodbridge – in February 2009.

Because he finished the prison sentence – or maxed out – he was not subject to parole, although he was subject to Megan’s Law registration requirements.

About six months later, the state Parole Board notified [name withheld] that he was subject to 24-hour a day, 7-day-a-week GPS monitoring because he had been classified as a Tier III offender, with a high risk of re-offense, according to the appellate decision.

That monitoring came with other conditions, including a requirement that he allow a parole officer access to his home if the device stopped emitting a signal, and a rule that he provide a parole officer with advance notice of out-of-state travel, the court papers said.

The state argued that it was not [name withheld]’s 1986 conviction, but his 2009 classification as a high-risk offender that triggered the GPS monitoring requirement. But with Thursday’s decision, the appeals court rejected that argument.

The GPS monitoring program was set up after the Sex Offender Monitoring Act was signed into law in 2007. That law directed the chairman of the parole board, in consultation with the state attorney general, to “establish a program for the continuous, satellite-based monitoring of sex offenders in this state.”



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