N.J. Sup. Ct.: Sex Offender Ankle Monitor Is Ex Post Facto Punishment

"Civil regulatory scheme" or "criminal punishment"? How would you classify a newly instated requirement that all sex offenders wear an ankle monitor at all times, check in with officers at the parole board when needed, and if they violate the rules, be subject to criminal penalties?

If that sounds a lot like parole to you, you're not alone. The New Jersey Supreme Court has held that the state's 2007 Sex Offender Monitoring Act (SOMA) amounts to ex post facto punishment when applied to those who had committed their crimes before the law was enacted.

"SOMA looks like parole, monitors like parole, restricts like parole, serves the general purpose of parole, and is run by the Parole Board," the court explained. "Calling this scheme by another name does not alter its essential nature."

The Case in Brief

George C. Riley is an 81-year-old convicted attempted child rapist. He was released from prison in 2009 after serving 23 years. At the time he was convicted, life parole was not an option. He is, however, subject to the civil regulatory requirements of Megan's Law (registration, neighbor notification, etc.) and is classified as a high-risk offender.

In 2007, SOMA was passed. It mandates that certain types of sex offenders, Riley included, wear a 24/7 ankle monitoring bracelet. The bracelet not only tracks him using GPS, but can also send him messages, instructing him to contact his parole officer. The officer can access his home at any time. Noncompliance is a third-degree crime.

Riley argued that parole, by any other name, is still a GPS monitor on his ankle. The state argued that this is a civil regulatory scheme, not a punitive measure. Perhaps tellingly, Riley's first filing was with the parole board, which rejected his argument. An intermediate appellate court ruled in his favor, however, holding that the Ex Post Facto clause barred the retroactive application of this punishment to an already completed crime.

N.J. Supreme Court: It's Punitive Parole

The applicability of the Ex Post Facto clause hinges on whether the real-world "adverse effects" are unmistakably punitive in nature. The U.S. Supreme Court proffered a seven-factor test (narrowed to five "most relevant" factors in Smith) for determining whether this threshold is met:

(1) Has been regarded in our history and traditions as a punishment;

(2) Imposes an affirmative disability or restraint;

(3) Promotes the traditional aims of punishment;

(4) Has a rational connection to a nonpunitive purpose; or

(5) Is excessive with respect to this purpose.

The New Jersey Supreme Court focused on the first two factors, noting first that the closest historical analogue to 24/7 electronic monitoring is parole: constant monitoring, a parole officer, the program is administered by the parole board, and violation of the program's terms carries up to five years in prison.

The court also noted that there is substantial disability and restraint here: no traveling to places where the GPS ankle monitor won't work or to where one can't charge the device every sixteen hours. Plus, his Fourth Amendment rights are affected by the grant of authority for parole officer access to his home. There's also an embarrassment factor: Riley can't wear shorts, change in a locker room, or go to the beach without showing off the ankle monitor.

Related Resources:

• Riley v. New Jersey State Parole Board (New Jersey Supreme Court)
• Some sex offenders can't be forced to wear GPS monitors, N.J. Supreme Court rules (NJ Advance Media)
• N.J. Judge Who Played Prosecutor, Denied Counsel Gets No Immunity (FindLaw's U.S. Third Circuit Blog)