George C. Riley v. New Jersey State Parole Board (069327) , 219 N.J. 270 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Riley v. New Jersey State Parole Board (A-94-11) (069327)
Argued January 7, 2014 -- Decided September 22, 2014
ALBIN, J., writing for a majority of the Court.
In this appeal, the Court must determine whether the 2007 Sex Offender Monitoring Act (SOMA), N.J.S.A.
30:4-123.89 to -123.95, when applied to an individual whose offense was completed before its enactment, violates
the constitutional prohibition on ex post facto laws.
In September 1986, George Riley was convicted of second-degree attempted sexual assault of a minor. In
light of his previous sexual-offense convictions, Riley was sentenced to an extended term of twenty years subject to
a ten-year parole-ineligibility period, consecutive to a term of imprisonment imposed for a violation of his parole.
At the time, New Jersey law did not provide for the imposition of parole supervision for life for sexual offenses. On
his release in February 2009, he was not subject to any form of parole supervision, but was, however, subject to the
registration and notification requirements of Megan’s Law. In July 2009, the Superior Court conducted a Megan’s
Law hearing and, based primarily on his previous sexual-offense convictions, placed Riley in Tier 3 -- the highest
risk category for sexual offenders -- requiring Internet registration and the most comprehensive degree of
community notification.
In August 2009, the New Jersey State Parole Board informed Riley that he was subject to GPS monitoring
under SOMA. Under protest, Riley signed the Notice of Conditions for the GPS Monitoring Program. Riley was
told that he would have to wear an ankle bracelet twenty-four hours a day for the rest of his life, that his movements
would be tracked continuously by global positioning system (GPS) satellites, and that he would be assigned a
monitoring parole officer. The ankle unit must be plugged into an electrical outlet to be charged one to two hours
every day and during that time Riley’s movements are limited to the length of the cord. Riley’s failure to comply
with the program would subject him to prosecution for a third-degree crime.
Riley filed an appeal with the Parole Board, challenging the imposition of the SOMA requirements. He
characterized the GPS monitoring program as nothing less than parole supervision for life and claimed that this
arbitrarily extended sentence violated the Ex Post Facto Clauses of the United States Constitution and the New
Jersey Constitution. The Chairman of the Parole Board wrote to Riley that as a result of his Tier 3 designation, his
“placement [in] the Sex Offender G.P.S. Monitoring Program is mandated by statute” and that his failure to comply
with the program’s rules and regulations would constitute a third-degree crime. Riley appealed.
The Appellate Division, in a split decision, reversed the Parole Board and held that the retroactive
application of SOMA to sex offenders who committed their crimes before passage of the Act violates the Ex Post
Facto Clauses of the Federal and State Constitutions. Riley v. N.J. State Parole Bd., 423 N.J. Super. 224, 228 (App.
Div. 2011). The majority accepted that the Legislature’s intent in passing SOMA was to create “a civil scheme that
is primarily regulatory” in nature. Id. at 237. The majority, however, determined that the adverse effects of SOMA
were so punitive that they “constitute[d] retroactive punishment prohibited by the Ex Post Facto Clause.” Id. at 238.
Judge Parillo dissented, finding no ex post facto violation in applying SOMA to Riley. Id. at 246. Judge
Parillo maintained that Riley failed to establish that SOMA’s “effects are sufficiently punitive to transform its civil
remedy into criminal punishment.” Id. at 258. Judge Parillo reasoned that the GPS monitoring program “is
sufficiently distinguishable from probation, parole or supervised release so as not to come within the constitutional
ex post facto proscription.” Id. at 252.
The Parole Board filed a notice of appeal as of right as a result of the dissent in the Appellate Division. See
R. 2:2-1(a). The sole issue on appeal as of right is whether SOMA, when retroactively applied to Riley based on his
1
1986 offense, is punitive in effect and therefore violative of the Ex Post Facto Clause. The Court also granted the
Parole Board’s petition for certification, 209 N.J. 596 (2012), in which the Board claims that SOMA, passed in
2007, was triggered by Riley’s 2009 Tier 3 Megan’s Law designation and therefore was not applied retroactively.
HELD: The retroactive application of the 2007 Sex Offender Monitoring Act 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.
1. The United States Constitution and the New Jersey Constitution both prohibit the State Legislature from passing
an “ex post facto law.” U.S. Const. art. I, § 10; N.J. Const. art. IV, § 7, ¶ 3. For a law to violate the ex post facto
prohibition, a court must find that the law is “retrospective” and that it imposes additional punishment to an already
completed crime. Even if the Legislature’s “intention was to enact a regulatory scheme that is civil and nonpunitive,
[the court] must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate
the State’s intention to deem it civil.” Smith v. Doe, 538 U.S. 84, 92 (2003). To determine the “effects” of a statute
for ex post facto purposes, the United States Supreme Court found “as a useful framework” seven factors referred to
in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963), a case involving a double-jeopardy challenge. In
Smith, the Court looked at five of those factors to determine whether the Alaska sex-offender registry scheme “in its
necessary operation” (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.” Smith, supra, at 97. The Court noted
that, unlike the registration and notification law, probation or supervised release curtailed an individual’s right “to
live and work as other citizens” without supervision. Id. at 101. Community supervision for life and its corollary
parole supervision for life are merely indefinite forms of parole, and this Court has ruled that community
supervision for life “is punitive rather than remedial.” State v. Schubert, 212 N.J. 295, 308 (2012). (pp. 17-27)
2. The Court rejects the Parole Board’s argument that it was the 2009 Tier 3 high-risk designation and not the
offense conduct that triggered the GPS monitoring. The Board’s reasoning is not supported by United States
Supreme Court jurisprudence. At the Megan’s Law hearing, the court made no independent assessment of Riley’s
current dangerousness unrelated to his prior convictions. The predicate events responsible for Riley’s current
regime of GPS monitoring are his 1986 sexual offense and earlier offenses. The question is whether SOMA can
retroactively apply to completed conduct without offending the Constitution. (pp. 27-29)
3. The issue is whether, despite the remedial intent of the Legislature, SOMA’s adverse effects are “so punitive
either in purpose or effect as to negate the State’s intent to deem it only civil and regulatory.” Smith, supra, at 92. If
the real world effects of the twenty-four-hour GPS monitoring regime on Riley’s life are unmistakably punitive in
nature, the Ex Post Facto Clause will bar retroactive application of SOMA. In applying the five Mendoza-Martinez
factors considered most relevant in Smith, the Court notes that there are no direct historical analogues to a twenty-
four-hour-a-day electronic surveillance that can track an individual’s every movement. Parole, more particularly
parole supervision for life, is the closest analogue to SOMA. SOMA looks like parole, monitors like parole, restricts
like parole, serves the general purpose of parole, and is run by the Parole Board. Calling this scheme by another
name does not alter its essential nature. SOMA “imposes an affirmative disability or restraint,” id. at 97, and clearly
impinges on Riley’s “freedom to travel,” which “has long been recognized as a basic right under the Constitution.”
See United States v. Guest, 383 U.S. 745, 758 (1966). SOMA’s grant of authority to parole officers to gain access
to Riley’s home is also an incursion into Riley’s Fourth Amendment privacy rights. SOMA’s twenty-four-hour
surveillance of Riley and onerous restrictions deprive him of freedom of movement and the ability “to live and work
as other citizens, with no supervision.” Smith, supra, at 100-01. SOMA’s adverse effects are “so punitive . . . as to
negate the State’s intent to deem it only civil and regulatory.” Id. at 92. 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. (pp. 30-37)
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the New Jersey
State Parole Board for enforcement of this judgment.
2
CHIEF JUSTICE RABNER filed a separate, DISSENTING opinion, in which JUSTICES
PATTERSON and FERNANDEZ-VINA join, substantially for the reasons expressed in Judge Parrillo’s dissenting
opinion.
JUSTICE LaVECCHIA and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in
JUSTICE ALBIN’s opinion. CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-
VINA filed a separate, dissenting opinion.
3
SUPREME COURT OF NEW JERSEY
A-94 September Term 2011
069327
GEORGE C. RILEY,
Appellant-Respondent,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent-Appellant.
Argued January 7, 2014 – Decided September 22, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 423 N.J. Super. 224 (2011).
Lisa A. Puglisi, Assistant Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Ms.
Raksa, Christopher C. Josephson, Deputy
Attorney General, and Mary Beth Wood, Senior
Deputy Attorney General, on the briefs).
Stephen M. Orlofsky argued the cause for
respondent (Blank Rome, attorneys; Mr.
Orlofsky, Andrew J. Hughes, and Rachel J.
Gallagher, on the briefs).
Alexander R. Shalom argued the cause for
amici curiae American Civil Liberties Union
of New Jersey and New Jersey Office of the
Public Defender (Alison S. Perrone,
attorney).
George C. Riley submitted a letter brief pro
se.
1
JUSTICE ALBIN delivered the opinion of the Court.
A well-established principle of ancient origin is that the
legislature cannot increase the punishment for a crime after it
has been committed. This simple principle -- that after-the-
fact laws cannot raise the punishment for earlier committed
conduct -- is embodied in the Ex Post Facto Clauses of both the
Federal and New Jersey Constitutions, U.S. Const. art. I, § 10;
N.J. Const. art. IV, § 7, ¶ 3.
In 2009, George C. Riley, then seventy-six years old,
completed serving the entirety of his twenty-year sentence for
aggravated sexual assault. On his release from prison, Riley
was under no form of parole supervision, although he was
required to comply with the registration and notification
provisions of Megan’s Law, N.J.S.A. 2C:7-1 to -11. Six months
later, the New Jersey Parole Board advised Riley that he was
subject to the Sex Offender Monitoring Act (SOMA), N.J.S.A.
30:4-123.89 to -123.95 -- a law passed in 2007, more than twenty
years after Riley committed his last offense. Riley was told
that he would have to wear an ankle bracelet twenty-four hours a
day for the rest of his life, that his movements would be
tracked continuously by global positioning system (GPS)
satellites, and that he would be assigned a monitoring parole
officer to whom he would have to report and give access to his
home. This monitoring program placed restrictions on Riley’s
2
freedom to travel, and his failure to comply with the program
would subject him to prosecution for a third-degree crime.
Before the Parole Board, Riley claimed that the retroactive
application of SOMA to him, based on his 1986 conviction,
violated the bar against ex post facto laws. He contended that
the new law is a form of parole supervision for life, an
additional punishment imposed after he completed his sentence.
The Chairman of the Parole Board rejected Riley’s challenge,
explaining that he was carrying out the mandate of the statute.
The Appellate Division reversed in a split decision, finding
that the retroactive application of SOMA to Riley based on his
1986 conviction constituted punishment under both the Federal
and State Ex Post Facto Clauses.
We now affirm. Parole is a form of punishment under the
Constitution. SOMA is essentially parole supervision for life
by another name. Riley is under constant electronic monitoring
by the Parole Board even though he has completed his sentence
for a crime that predated SOMA. The constraints and
disabilities imposed on Riley by SOMA, and SOMA’s similarity to
parole supervision for life, clearly place this law in the
category of a penal rather than civil law. Accordingly, when
applied to Riley, SOMA violates both the federal and state
constitutional guarantees against ex post facto laws.
I.
3
A.
The facts of this case are generally not in dispute. In
September 1986, George Riley was convicted of the second-degree
attempted sexual assault of a minor that he committed earlier
that year, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-
2(b). In light of his previous sexual-offense convictions,
Riley was sentenced to an extended term of twenty years subject
to a ten-year parole-ineligibility period, consecutive to a term
of imprisonment imposed for a violation of his parole. At the
time, New Jersey law did not provide for the imposition of
parole supervision for life for sexual offenses.
Riley completed the entirety of his sentence in prison. On
his release in February 2009, he was not subject to any form of
parole supervision. Riley was, however, subject to the
registration and notification requirements of Megan’s Law. In
July 2009, the Superior Court conducted a Megan’s Law hearing
for the purpose of determining the extent of community
notification. The court placed Riley in Tier 3 -- the highest
risk category for sexual offenders -- requiring Internet
registration and the most comprehensive degree of community
notification. See N.J.S.A. 2C:7-8(c)(3); N.J.S.A. 2C:7-
13(b)(1). The Tier 3 scoring was based primarily on Riley’s
previous sexual-offense convictions. Megan’s Law registration
4
and notification requirements do not place an offender under
parole supervision.
In August 2009, Riley received notification from the New
Jersey State Parole Board that he was subject to GPS monitoring
under SOMA. Under protest, Riley signed the Notice of
Conditions for the GPS Monitoring Program. The Notice set forth
the following requirements:
1. You shall initially meet with the
assigned monitoring Parole Officer for
installation of the GPS monitoring
equipment.
2. You shall insure that the GPS tracking
device is charged to its capacity on a daily
basis and maintain the GPS tracking device
in a charged mode whenever you leave your
residence.
3. You shall provide immediate notice to the
assigned monitoring Parole Officer if the
GPS tracking device becomes inoperable.
4. You shall not tamper with, remove or
damage or attempt to tamper with, remove or
damage any of the GPS monitoring equipment
installed at your residence, attached to
your person or required to be carried by
you.
5. You shall be responsible for the cost of
repair and/or replacement of any of the GPS
monitoring equipment that is lost or
damaged.
6. You shall maintain and exercise
continuous physical control over the GPS
tracking device whenever you leave your
residence.
5
7. You shall provide access to your
residence at reasonable times to enable the
assigned monitoring Parole Officer to
perform required maintenance and/or
diagnostics of the GPS monitoring equipment.
8. You shall provide immediate access to
your residence whenever the assigned
monitoring Parole Officer is required to
investigate a report of non-compliance with
a condition of the monitoring program.
9. You shall provide notice to the assigned
monitoring Parole Officer not less than ten
days prior to any change in your residence.
10. You shall provide notice to the assigned
monitoring Parole Officer prior to any
travel outside of the State of New Jersey.
11. You shall provide the assigned
monitoring Parole Officer with:
a. the name, address and physical
location of your current employment.
b. notice of any change in your
employment or employment location
within 24 hours of the change
occurring.
c. your scheduled hours of work on a
weekly basis.
The Notice also advised Riley that failure to comply with the
conditions constituted a third-degree crime, exposing him to a
maximum term of imprisonment of five years and a maximum fine of
$15,000.
The assigned parole officer attached a light-weight, two-
inch by one-and-one-half-inch transmitter to Riley’s ankle using
a rubber strap. Riley is required to wear the transmitter at
6
all times.1 At first, when away from home, Riley was required to
carry a cell-phone-sized tracking unit that is clipped to a
belt. In June 2013, Riley was given an updated GPS device,
combining the transmitter and tracking device into a single
ankle bracelet. This new unit is larger and heavier than the
old one. On the new device, only pre-recorded messages can be
sent to Riley. When receiving a message, Riley must place his
finger on a sensor and then the message is broadcast over the
device’s speaker, wherever he may be. These messages include,
“call your officer,” “please pay your fines immediately,” and
“report to the office immediately.” The new ankle unit must be
plugged into an electrical outlet to be charged. During
charging, Riley’s movements are limited to the length of the
cord. The tracker must be charged through an electrical outlet
one to two hours every day.2
The parole officer monitoring Riley can log into a website,
pinpoint his location on a map, and determine whether he is
moving and, if so, at what speed and in what direction. The
1 The Appellate Division noted, based on the submissions before
it, that Riley, “who is seventy-seven years old, complains that
this bracelet causes his leg to swell at night and is very
uncomfortable when he sleeps or wears certain shoes.” Riley v.
N.J. State Parole Bd., 423 N.J. Super. 224, 239 (App. Div.
2011).
2 Riley complains that the new device “feels like a weight,”
causes him pain while sleeping, and will cause him shame and
humiliation when he receives a message in a public place.
7
effectiveness of this tracking mode depends on the satellite and
wireless-communication reception at a particular location.
Riley, however, is required to notify his parole officer if his
tracking device becomes inoperable.
Riley was advised through a New Jersey Parole Board
“Participant Information” statement that the “GPS monitoring
program is staffed by [p]arole [o]fficers at all times” and that
he can reach his parole officer at the District Office telephone
number or the officer’s cell number.
B.
Riley filed an appeal with the Parole Board, challenging
the imposition of the SOMA requirements six months after he
“made a successful adjustment into the community without any
incident.” He characterized the GPS monitoring program as
nothing less than parole supervision for life -- a parole
requirement for certain sex offenders that post-dated his crime.
Riley claimed that the Parole Board arbitrarily extended his
sentence after he had completed serving it, in violation of the
Ex Post Facto and the Double Jeopardy Clauses of the United
States Constitution and the Ex Post Facto Clause of the New
Jersey Constitution.
The Chairman of the Parole Board wrote to Riley that as a
result of his Tier 3 designation, his “placement [in] the Sex
Offender G.P.S. Monitoring Program is mandated by statute” and
8
that his failure to comply with the program’s rules and
regulations would constitute a third-degree crime.
Riley appealed.
II.
A.
The Appellate Division, in a split decision, reversed the
Parole Board and held that the retroactive application of SOMA
to sex offenders who committed their crimes before passage of
the Act violates the Ex Post Facto Clauses of the Federal and
State Constitutions. Riley, supra, 423 N.J. Super. at 228.
Writing for the two-person majority, Judge Skillman initially
found that the retroactive application of SOMA to Riley based on
his 1986 crime “‘change[d] the legal consequences of acts
completed before [SOMA’s] effective date,’” (quoting
Commonwealth v. Cory, 911 N.E.2d 187, 192 (Mass. 2009)), thus
requiring an analysis under the Ex Post Facto Clause. Id. at
232-34. The majority then applied the ex post facto test set
forth in Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1147,
155 L. Ed. 2d 164, 176 (2003). Riley, supra, 423 N.J. Super. at
237.
The majority accepted that the Legislature’s intent in
passing SOMA was to create “a civil scheme that is primarily
regulatory” in nature. Ibid. The majority, however, determined
that the adverse effects of SOMA were so punitive that they
9
“constitute[d] retroactive punishment prohibited by the Ex Post
Facto Clause.” Id. at 238. Judge Skillman focused on two of
the seven factors listed in Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168, 83 S. Ct. 554, 567, 9 L. Ed. 2d 644, 661 (1963),
which should be considered in determining whether a statute is
punitive in effect. Riley, supra, 423 N.J. Super. at 239. The
majority asserted that SOMA subjects its participants to
“disabilities and restraints” similar to those that have
“historically been regarded as a punishment,” and certainly
similar to those found in parole, “a form of punishment that
cannot be retroactively imposed or extended without violating
the Ex Post Facto Clause.” Id. at 241 (citations and internal
quotation marks omitted).
Judge Parillo dissented, finding no ex post facto violation
in applying SOMA to Riley. Id. at 246. Judge Parillo
maintained that the Legislature clearly expressed its “intent to
create a civil regulatory scheme” in passing SOMA, and that
Riley failed to establish that SOMA’s “effects are sufficiently
punitive to transform its civil remedy into criminal
punishment.” Id. at 258. He applied the Mendoza-Martinez
factors in coming to that conclusion. Id. at 248-58.
In his view, the attachment of a GPS monitoring device to
Riley is far less intrusive than either involuntary commitment
under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to
10
-27.38, or the registration and notification procedures of
Megan’s Law, N.J.S.A. 2C:7-1 to -11, both of which have been
held to be nonpunitive. Id. at 248-49. Judge Parillo also
reasoned that the GPS monitoring program “is sufficiently
distinguishable from probation, parole or supervised release so
as not to come within the constitutional ex post facto
proscription.” Id. at 252. Judge Parillo was persuaded that
“there is a rational relationship between New Jersey’s GPS
program and the non-punitive purpose of protecting the public”
and that SOMA’s “‘sanction’ is not excessive in relation to its
non-punitive objective merely because its duration is lifelong.”
Id. at 254–55. He submits that SOMA’s “technologically advanced
method of tracking sex offenders has no historical antecedent”
that would suggest its retroactive application violates the
prohibition against ex post facto laws. Id. at 257-58.
B.
The Parole Board filed a notice of appeal as of right as a
result of the dissent in the Appellate Division. See R. 2:2-
1(a). The sole issue on appeal as of right is whether SOMA,
when retroactively applied to Riley based on his 1986 offense,
is punitive in effect and therefore violative of the Ex Post
Facto Clause. We also granted the Parole Board’s petition for
certification, 209 N.J. 596 (2012), in which the Board claims
that SOMA, passed in 2007, was triggered by Riley’s 2009 Tier 3
11
Megan’s Law designation and therefore was not applied
retroactively. We also granted the motions of the American
Civil Liberties Union of New Jersey and the New Jersey Office of
the Public Defender to participate as amici curiae.
III.
A.
The Parole Board argues that ex post facto concerns are not
raised in this case because SOMA was triggered by Riley’s Tier 3
classification in 2009 -- a determination of his “present
dangerousness” -- not by his 1986 offense. From that reasoning,
the Parole Board concludes that SOMA was not retroactively
applied to Riley. Alternatively, the Parole Board asks this
Court to reverse based on “the sound reasoning” of Judge
Parillo’s dissent. It believes that the majority erred by
finding that the punitive effect of SOMA violated the Federal
and State Ex Post Facto Clauses despite the “Legislature’s civil
remedial purpose” in passing SOMA. It criticizes the majority
for focusing on only two of the seven Mendoza-Martinez factors.
It submits that “[t]he relatively minor inconveniences of the
monitoring bracelet and tracker are not more onerous than the
requirements of such regulatory schemes” as Megan’s Law,
N.J.S.A. 2C:7-1 to -11, and the Sexually Violent Predator Act,
N.J.S.A. 30:4-27.24 to -27.38, which, when retroactively
12
applied, have been held not to run afoul of the ex post facto
prohibition.
B.
Riley contends that SOMA imposes “affirmative disabilities
and restraints” similar to those “that have historically been
regarded as punishment,” and that the retroactive application of
SOMA to Riley violates the Ex Post Facto Clauses of both the
Federal and State Constitutions. Riley rejects the Parole
Board’s argument that SOMA was triggered by his Tier 3 sex-
offender classification and not by his 1986 conviction. Riley
insists that the direct antecedent for his involuntary
participation in the GPS monitoring program is his 1986
conviction.
Riley also argues that SOMA is punitive for the same
reasons that this Court declared that the community supervision
for life statute is punitive: “it ‘significantly restricts the
manner in which an individual may pursue his daily life’”
(quoting State v. Schubert, 212 N.J. 295, 306 (2012)). Riley
details the punitive effects of wearing a tracking device
attached to his body twenty-four hours a day and the
requirements that he report to and be supervised by an assigned
parole officer mandated by SOMA. He describes a regime of
“continuous surveillance . . . akin to an electronic form of
parole.” Because SOMA places him on the equivalent of parole
13
supervision for life, Riley concludes that the retroactive
application of the statute is a proscribed ex post facto law.3
C.
Amici curiae American Civil Liberties Union of New Jersey
and the New Jersey Office of the Public Defender maintain that
SOMA imposes conditions akin to parole -- a twenty-four-hour
electronic guard, burdensome intrusions into Riley’s life, and
restraints on his freedom of travel -- and applies those penal
3 Riley advances two additional arguments that are not before
this Court. He asserts that the Parole Board’s GPS monitoring
program is an administrative regulatory regime that was not
adopted in accordance with the Administrative Procedure Act,
N.J.S.A. 52:14B-1 to -15, and therefore is void. Riley did not
raise this issue before the Appellate Division, nor did he seek
certification of this issue. We therefore will not address the
issue.
Riley also asserts that “SOMA’s text, structure, and
implementing procedures . . . establish that SOMA was intended
to be punitive” and therefore is an ex post facto law as applied
to him. We choose not to address this issue. We are limited to
the issues raised in Judge Parillo’s dissent and in the Parole
Board’s petition for certification. The members of the
appellate panel agreed that the Legislature’s intent in passing
SOMA was to establish a civil, regulatory scheme; they disagreed
only about whether SOMA’s effects were punitive in nature. See
R. 2:2-1(a)(2) (permitting appeals from “final judgments as of
right . . . in cases where, and with regard to those issues as
to which, there is a dissent in the Appellate Division”);
Gilborges v. Wallace, 78 N.J. 342, 349 (1978) (“[W]here there is
a dissent in the Appellate Division, the scope of the appeal . .
. is limited to those issues encompassed by the dissent.”); R.
2:2-1(b) (permitting appeals on certification).
We note that, since Riley filed his brief, the Parole Board
adopted administrative regulations governing SOMA. 46 N.J.R.
79(b) (Jan. 6, 2014) (codified at N.J.A.C. 10A:72-11.5). We do
not pass any judgment on those regulations.
14
conditions to an individual whose offense predates the enactment
of SOMA by decades. Amici, like Riley, insist that this
retroactive increase of the penal consequences after an offense
was completed and after the sentence was served violates “the
constitutional proscription against ex post facto laws.”
IV.
We must determine whether the 2007 Sex Offender Monitoring
Act (SOMA), N.J.S.A. 30:4-123.89 to -123.95, when applied to an
individual whose offense was completed before its enactment,
violates the constitutional prohibition on ex post facto laws.
We begin with a review of SOMA and its regulatory scheme.
SOMA directs the Chairman of the Parole Board, “in
consultation with the Attorney General, [to] establish a program
for the continuous, satellite-based monitoring of sex
offenders,” N.J.S.A. 30:4-123.92, “24 hours per day, seven days
per week,” N.J.S.A. 30:4-123.90. Those sex offenders subject to
SOMA include any “person whose risk of reoffense has been
determined to be high” -- that is, determined to be within the
Tier 3 risk under Megan’s Law, N.J.S.A. 2C:7-8. N.J.S.A. 30:4-
123.91(a)(1). In July 2009, at a Megan’s Law hearing, the
Superior Court determined that Riley scored in the Tier 3
category based primarily on his 1986 attempted sexual assault
and other previous sexual-offense convictions, making him
15
automatically subject to GPS monitoring under SOMA. See
N.J.S.A. 30:4-123.91(a)(1).
The statute’s monitoring system provides for the
“continuous” geographical tracking of an offender based on
satellite GPS and other technology, for “law enforcement
agencies to compare the [location of offenders] with reported
crime incidents,” and for the Parole Board to determine on a
twenty-four-hour basis whether an offender is in compliance with
the program’s conditions. N.J.S.A. 30:4-123.92(b), (c). The
Parole Board Chairman is authorized to promulgate guidelines to
effectuate the program. N.J.S.A. 30:4-123.92(d). Noncompliance
with the conditions of the program is punishable as a third-
degree crime. N.J.S.A. 30:4-123.95.
In 2014, the Parole Board promulgated regulations defining
the conditions of GPS monitoring under SOMA, which are
essentially the same as the Notice of Conditions given to Riley
in August 2009. N.J.A.C. 10A:72-11.5. We already have
described the burdens and restraints placed on Riley resulting
from the GPS monitoring program that began with the permanent
attachment of a tracking device to his ankle six months after he
had completed the entirety of his criminal sentence.
We next turn to the Ex Post Facto Clause jurisprudence.
V.
A.
16
The United States Constitution and the New Jersey
Constitution both prohibit the State Legislature from passing an
“ex post facto law.” U.S. Const. art. I, § 10; N.J. Const. art.
IV, § 7, ¶ 3. The New Jersey Ex Post Facto Clause is
interpreted in the same manner as its federal counterpart. Doe
v. Poritz, 142 N.J. 1, 42 (1995). The Ex Post Facto Clause
furthers two primary goals. It assures that individuals can
rely on laws until they are “‘explicitly changed,’” and it
restricts the government from passing “‘potentially vindictive
legislation.’” Carmell v. Texas, 529 U.S. 513, 566, 120 S. Ct.
1620, 1650, 146 L. Ed. 2d 577, 614-15 (2000) (quoting Weaver v.
Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L. Ed. 2d
17, 23 (1981)).
The Ex Post Facto Clause proscribes “[e]very law that
changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed.” Calder v. Bull,
3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798). Stated
slightly differently, “any statute . . . which makes more
burdensome the punishment for a crime, after its commission, . .
. is prohibited as ex post facto.” Beazell v. Ohio, 269 U.S.
167, 169-70, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925). These
formulations, which are “faithful to our best knowledge of the
original understanding of the Ex Post Facto Clause,” simply bar
a legislature from “retroactively alter[ing] the definition of
17
crimes or increas[ing] the punishment for criminal acts.”
Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715, 2719,
111 L. Ed. 2d 30, 39 (1990).
B.
Two findings must be made for a law to violate the ex post
facto prohibition. A court must first determine that the law is
“retrospective.” Miller v. Florida, 482 U.S. 423, 430, 107 S.
Ct. 2446, 2451, 96 L. Ed. 2d 351, 360 (1987) (citation and
internal quotation marks omitted).4 A law is retrospective if it
“‘appl[ies] to events occurring before its enactment’” or “if it
‘changes the legal consequences of acts completed before its
effective date.’” Ibid. (quoting Weaver, supra, 450 U.S. at 29,
31, 101 S. Ct. at 964, 965, 67 L. Ed. 2d at 24). Second, the
court must determine whether the law, as retrospectively
applied, imposes additional punishment to an already completed
crime. Kansas v. Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072,
2086, 138 L. Ed. 2d 501, 520 (1997) (citation omitted).
Assuming that a statute is intended to apply retroactively,
determining whether the statute imposes punishment requires a
two-part evaluation under the Ex Post Facto Clause. Smith,
supra, 538 U.S. at 92, 123 S. Ct. at 1146-47, 155 L. Ed. 2d at
176. First, a court must assess whether the Legislature
4 Courts use the terms “retrospective” and “retroactive”
interchangeably.
18
intended “to impose punishment.” Id. at 92, 123 S. Ct. at 1147,
155 L. Ed. 2d at 176. If the court finds that the Legislature
had a punitive intent, “that ends the inquiry.” Ibid.
However, even if the Legislature’s “intention was to enact
a regulatory scheme that is civil and nonpunitive, [the court]
must further examine whether the statutory scheme is so punitive
either in purpose or effect as to negate the State’s intention
to deem it civil.” Ibid. (alteration, citation, and internal
quotation marks omitted). To determine the “effects” of a
statute for ex post facto purposes, the United States Supreme
Court found “as a useful framework” seven factors referred to in
Mendoza-Martinez, a case involving a double jeopardy challenge.
Id. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 179.
The Supreme Court in Smith focused on the five Mendoza-
Martinez factors “most relevant” to its analysis of whether the
“effects” of the Alaska Sex Offender Registration Act imposed a
retroactive punishment violative of the Ex Post Facto Clause.
Id. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 180.5 The
5 In Poritz, supra, we declined to utilize the Mendoza-Martinez
factors in deciding the ex post facto challenge to Megan’s Law.
142 N.J. at 72. Since our 1996 decision in Poritz, the United
States Supreme Court issued Smith, supra, applying the Mendoza-
Martinez factors in analyzing the constitutionality of Alaska’s
version of Megan’s Law under the Ex Post Facto Clause. 538 U.S.
at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 179. Because we
have acknowledged that there is no difference in the
interpretation of the Ex Post Facto Clause under federal and
19
Supreme Court looked to whether the sex-offender registry scheme
“in its necessary operation” (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.” Ibid.6 These factors are considered “useful
guideposts” and not an “exhaustive [or] dispositive” list. Id.
at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 179-80 (citations
and internal quotation marks omitted). Each factor does not
necessarily receive the same weight.
Applying those factors in Smith, the Court upheld Alaska’s
sex offender registration and notification statute against an ex
post facto challenge, finding that it was a civil regulatory
scheme with nonpunitive effects. The Court concluded that the
statute did not impose physical restraints on sex offenders,
left them free to “change jobs [and] residences,” and “to move
where they wish and to live and work as other citizens, with no
supervision.” Id. at 100-01, 123 S. Ct. at 1151-52, 155 L. Ed.
state law, we follow the reasoning of Smith, the most recent
exposition on the Clause.
6 In the ex post facto analysis in Smith, supra, the Supreme
Court determined that two of the seven Mendoza-Martinez factors
“are of little weight”: whether the relevant behavior is
already a crime and whether the regulation requires a finding of
scienter. 538 U.S. at 105, 123 S. Ct. at 1154, 155 L. Ed. 2d at
185.
20
2d at 181-82 (emphasis added). The Court observed that the
registration and notification law imposed obligations “less
harsh than the sanctions of occupational debarment, which [the
Court has] held to be nonpunitive.” Id. at 100, 123 S. Ct. at
1151, 155 L. Ed. 2d at 181.
In an earlier case, the Supreme Court determined that the
retroactive application of a Kansas statute allowing for the
civil commitment of sexually violent predators did not violate
the Ex Post Facto Clause. Hendricks, supra, 521 U.S. at 371,
117 S. Ct. at 2086, 138 L. Ed. 2d at 520-21. Under the Kansas
statute, commitment of a convicted offender occurs only if the
State shows that he “suffers from a mental abnormality or
personality disorder which makes [him] likely to engage in the
predatory acts of sexual violence.” Id. at 357, 117 S. Ct. at
2080, 138 L. Ed. 2d at 512 (citation and internal quotation
marks omitted). Commitment is permitted, regardless of the date
of the predicate offense, based on a court’s determination of
current dangerousness to the public. Id. at 371, 117 S. Ct. at
2086, 138 L. Ed. 2d at 520. Significantly, however, a person
cannot be “confined any longer than he suffers from a mental
abnormality rendering him unable to control his dangerousness,”
and he is entitled to yearly reviews at which the State bears
the burden of justifying continued commitment. Id. at 364, 117
S. Ct. at 2083, 138 L. Ed. 2d at 516. The Court in Hendricks
21
found that the statute did not constitute “punishment” under the
Ex Post Facto Clause, in part because the sexually violent
predator law was comparable to traditional involuntary civil
commitment of those suffering from a mental illness. Id. at
369-71, 117 S. Ct. at 2086, 138 L. Ed. 2d at 520.7 According to
the Court, “historically,” such “nonpunitive detention” of the
dangerous mentally ill has not been considered to be punishment.
Id. at 363, 117 S. Ct. at 2083, 138 L. Ed. 2d at 516.
In contrast to the statutes in Smith and Hendricks that are
denominated as nonpunitive and civil in nature, parole and
probation have historically been viewed as punishment. See
Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164, 3168,
97 L. Ed. 2d 709, 717 (1987) (“Probation, like incarceration, is
‘a form of criminal sanction imposed by a court upon an offender
. . . .’” (quoting George G. Killinger et al., Probation and
Parole in the Criminal Justice System 14 (1976))); United States
v. Dozier, 119 F.3d 239, 242 (3d Cir. 1997) (“Supervised release
is punishment; it is a deprivation of some portion of one’s
liberty imposed as a punitive measure for a bad act.”); State v.
Bowditch, 700 S.E.2d 1, 8 (N.C. 2010) (“An offender’s period of
parole or probation, and its attendant State supervision,
historically have been considered a form of criminal
7 In Hendricks, the Supreme Court did not strictly adhere to the
Mendoza-Martinez framework.
22
punishment.”). That parole is “in legal effect imprisonment” is
well established. See Anderson v. Corall, 263 U.S. 193, 196, 44
S. Ct. 43, 44, 68 L. Ed. 247, 254 (1923) (stating that although
parole is “an amelioration of punishment, it is in legal effect
imprisonment”); see also United States ex rel. Nicholson v.
Dillard, 102 F.2d 94, 96 (4th Cir. 1939) (stating that parole is
“imprisonment in legal effect”).
Significantly, the Court in Smith, supra, differentiated
between Alaska’s sex-offender registry scheme and probation and
supervised release. 538 U.S. at 101, 123 S. Ct. at 1152, 155 L.
Ed. 2d at 182. The Court noted that, unlike the registration
and notification law, probation or supervised release curtailed
an individual’s right “to live and work as other citizens”
without supervision and imposed “a series of mandatory
conditions [that] allow the supervising officer to seek the
revocation of probation or release in case of infraction.”
Ibid.
Community supervision for life and its corollary parole
supervision for life are merely indefinite forms of parole. We
have ruled that community supervision for life “is punitive
rather than remedial.” Schubert, supra, 212 N.J. at 308. We
came to that conclusion despite the fact that “one of the
purposes of community supervision for life is to protect the
public from recidivism by defendants convicted of serious sexual
23
offenses.” Id. at 307-08 (citation and internal quotation marks
omitted). As we noted in Schubert, “one of the purposes of
incarceration” is public safety, id. at 308, yet no one would
seriously argue that -- outside of civil-commitment detention --
imprisonment is nonpunitive because of the remedial benefits of
deterrence and safety to the public.
In Schubert, supra, we determined that a trial court could
not amend a sexual offender’s judgment of conviction to impose
community supervision for life, N.J.S.A. 2C:43-6.4 (now called
parole supervision for life, L. 2003, c. 267), four years after
the offender had successfully completed his probationary
sentence. 212 N.J. at 300-01, 313. We concluded in Schubert
that increasing a sentence after the defendant has completed
serving it “is a violation of a defendant’s fundamental rights
under the Double Jeopardy Clauses of the United States and New
Jersey Constitutions.” Id. at 313. What constitutes punishment
is no different under either a double jeopardy or ex post facto
analysis.8 Hendricks, supra, 521 U.S. at 369–71, 117 S. Ct. at
2085-86, 138 L. Ed. 2d at 519-21 (holding that because
“commitment under the [Kansas Sexually Violent Predator Act] is
not tantamount to ‘punishment,’” it does not violate either
8 For this reason, SOMA as applied retroactively to Riley
arguably violates the Double Jeopardy Clauses, U.S. Const.
amend. V; N.J. Const. art. 1, ¶ 11, as imposition of community
supervision for life did in Schubert.
24
Double Jeopardy Clause or Ex Post Facto Clause); see also Smith,
supra, 538 U.S. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 179
(noting that Mendoza-Martinez factors originated in double
jeopardy jurisprudence and “migrated into our ex post facto case
law”).
C.
Courts in other jurisdictions have addressed whether GPS
monitoring of sex offenders constitutes punishment for ex post
facto purposes, with varying results. In Cory, supra, the
Massachusetts Supreme Judicial Court declared that a law
requiring the mandatory GPS monitoring of sex offenders already
on probation was “punitive in effect” and therefore violated the
Ex Post Facto Clause. 911 N.E.2d at 197. The court weighed the
Mendoza-Martinez factors in reaching that outcome. Id. at 195-
97. The court found that “[t]he GPS device burden[ed] liberty .
. . by its permanent, physical attachment” and “its continuous
surveillance,” and found that the device was “dramatically more
intrusive and burdensome” than a yearly registration
requirement. Id. at 196. The court observed that in “no
context other than punishment” does the state physically attach
-- for a period of years under threat of imprisonment -- a
device “without consent and also without consideration of
individual circumstances.” Id. at 196. The attachment of a GPS
25
monitoring device, according to the court, “is a serious,
affirmative restraint.” Ibid.
In contrast to Cory, in Doe v. Bredesen, the United States
Court of Appeals for the Sixth Circuit upheld, against an ex
post facto challenge, the Tennessee Serious and Violent Sex
Offender Monitoring Pilot Project Act, which “authorized the
Tennessee Board of Probation and Parole . . . to subject a
convicted sexual offender to a satellite-based monitoring
program for the duration of his probation.” 507 F.3d 998, 1000
(6th Cir. 2007) (emphasis added).
Importantly, unlike the defendants in Cory and Bredesen,
Riley had completed the entirety of his sentence and was under
no form of supervised release at the time the State subjected
him to a regime of GPS monitoring. In Cory and Bredesen, GPS
monitoring became an additional condition to an ongoing
probation. We do not suggest that GPS monitoring may not be
added as a condition of parole supervision that is ongoing --
that is, while the offender is still serving his sentence.
Bowditch, supra, 700 S.E.2d 1, is clearly at odds with Cory
and the Appellate Division majority in this case. There, the
North Carolina Supreme Court upheld against an ex post facto
challenge a statute that provided for GPS monitoring of sexual
offenders, regardless of whether the offenders had completed
their sentences. Id. at 3. The majority ruled that the statute
26
as a whole was “enacted with the intent to create a civil
regulatory scheme” and did not violate the Ex Post Facto Clause.
Id. at 13. A three-person dissent sharply disagreed with the
majority, finding that “[t]he physical and practical realities
of the [GPS monitoring] program . . . transform the effect of
the scheme from regulatory to punitive.” Id. at 21 (Hudson, J.,
dissenting).
VI.
We now apply the principles enunciated in ex post facto
jurisprudence to the case before us. Initially, it is important
to note the scenarios not implicated here. This is not a case
about a defendant who committed a crime after the passage of
SOMA or about a defendant who was subjected to the additional
condition of GPS monitoring for the duration of his probation or
parole. The only question we address is whether a defendant who
committed a past offense and completed his sentence before
enactment of SOMA can be subjected to the Parole Board’s regime
of GPS monitoring.
A.
The Parole Board argues that the 2007 Sexual Offense
Monitoring Act was not applied retroactively to Riley’s 1986
commission of attempted sexual assault, but prospectively to
Riley’s Megan’s Law Tier 3 high-risk designation in 2009. The
Board contends that the Tier 3 designation -- not the offense
27
conduct -- triggered the GPS monitoring and therefore the
retroactivity issue is illusory. We reject that argument, as
did all members of the appellate panel. Riley, supra, 423 N.J.
Super. at 232-34.
The Board’s reasoning is not supported by United States
Supreme Court jurisprudence. In Johnson v. United States, the
Supreme Court engaged in an ex post facto retroactivity analysis
of a new law that permitted the extension of a period of
supervised release. 529 U.S. 694, 697-701, 120 S. Ct. 1795,
1799-1801, 146 L. Ed. 2d 727, 734-36 (2000). The new law was
enacted after the defendant committed the offense for which he
was placed on supervised release but before the defendant
violated the terms of his earlier-imposed supervised release.
Id. at 698, 120 S. Ct. at 1799, 146 L. Ed. 2d at 734. The
Supreme Court made clear that penalties that “relate to the
original offense” are applied retroactively. Id. at 701, 120 S.
Ct. at 1801, 146 L. Ed. 2d at 736. Because the “postrevocation
penalties relate[d] to the original offense,” an additional term
of supervised release under the new law would have applied
retroactively. Ibid.
In Poritz, supra, when conducting an ex post facto analysis
of the newly enacted Megan’s Law, which included a community-
notification requirement determined by tier designation, we
looked to the date of the original offense as the triggering
28
event. See 142 N.J. at 20. Had we selected the tier
determination as the starting point, a retroactivity analysis
would have been unnecessary. Similarly, by the Parole Board’s
reasoning, the United States Supreme Court needlessly conducted
an ex post facto analysis in Smith.
Riley’s Tier 3 designation was based on his 1986 conviction
and other prior sexual offense convictions. At the Megan’s Law
hearing, the court made no independent assessment of Riley’s
current dangerousness unrelated to his prior convictions. The
predicate events responsible for Riley’s current regime of GPS
monitoring are his 1986 sexual offense and earlier offenses, and
therefore the question is whether SOMA can retroactively apply
to completed conduct without offending the Constitution.
B.
For purposes of our ex post facto analysis, we accept that
the Legislature, in passing SOMA, intended to enact a remedial,
regulatory scheme that was civil and nonpunitive in nature.
“[O]nly the clearest proof will suffice to override legislative
intent and transform what has been denominated a civil remedy
into a criminal penalty.” Hudson v. United States, 522 U.S. 93,
100, 118 S. Ct. 488, 493, 139 L. Ed. 2d 450, 459 (1997)
(citation and internal quotation marks omitted). After finding
that Riley did not present such proof, the appellate panel
unanimously concluded that “the Sex Offender Monitoring Act’s
29
express legislative objectives reflect a civil scheme that is
primarily regulatory in intent.” Riley, supra, 423 N.J. Super.
at 237. No appeal was taken from that determination.
VII.
The issue is whether, despite the remedial intent of the
Legislature, SOMA’s adverse effects are “so punitive either in
purpose or effect as to negate the State’s intent to deem it
only civil and regulatory.” Smith, supra, 538 U.S. at 92, 123
S. Ct. at 1147, 155 L. Ed. 2d at 176 (alteration, citation, and
internal quotation marks omitted). In other words, if the real
world effects of the twenty-four-hour GPS monitoring regime on
Riley’s life are unmistakably punitive in nature, the Ex Post
Facto Clause will bar retroactive application of SOMA. This
“adverse effects” analysis requires us to turn to the five
Mendoza-Martinez factors considered most relevant by the Supreme
Court in Smith.
A.
The first two of the Mendoza-Martinez factors identified in
Smith weigh most heavily in our analysis. The first factor is
whether “the regulatory scheme[] has been regarded in our
history and traditions as a punishment.” Id. at 97, 123 S. Ct.
at 1149, 155 L. Ed. 2d at 180. The technology that has given
rise to SOMA is of relatively recent origin. There are no
direct historical analogues to a twenty-four-hour-a-day
30
electronic surveillance that can track an individual’s every
movement. Nevertheless, the closest analogue to SOMA is parole
and, more particularly, parole supervision for life.
Riley, now eighty-one years old, having fully completed his
criminal sentence, is under the Parole Board’s supervision and
subject to regulations it has adopted. He has been assigned a
monitoring parole officer. He must notify his parole officer of
any change in residence; of any change in employment, including
work hours and schedule; of plans to travel outside of the
State; and of GPS equipment that is inoperable, lost, or
damaged. He must permit his parole officer to enter his home to
perform equipment maintenance and “to investigate a report of
non-compliance with a condition of the monitoring program.” The
parole officer must be able to monitor Riley twenty-four hours a
day, and to determine when he is moving, at what speed, and in
what direction. Riley must always be available to respond to
messages sent to him through his GPS tracking device. That
requires Riley to have his GPS device charged at all times --
two hours after every sixteen hours of use. He also is
responsible for the cost of its repair. Riley cannot travel
anywhere his GPS device does not operate or where it cannot be
charged within a sixteen-hour period. The failure to comply
with any those conditions constitutes a third-degree crime
punishable by up to five years in prison. N.J.S.A. 30:4-123.94.
31
This scheme, unlike the reporting and notification
requirements of Megan’s Law, is similar to a form of supervised
release with mandatory conditions that allows a supervising
officer -- such as a parole officer -- to seek revocation of the
release for a violation. Cf. Smith, supra, 538 U.S. at 101, 123
S. Ct. at 1152, 155 L. Ed. 2d at 182. SOMA looks like parole,
monitors like parole, restricts like parole, serves the general
purpose of parole, and is run by the Parole Board. Calling this
scheme by another name does not alter its essential nature.
SOMA does not share the exact conditions of parole
supervision for life. Cf. N.J.A.C. 10A:71-6.12(d) (defining
conditions of parole supervision for life). In some ways, SOMA
is both more and less onerous than parole supervision for life.
Nevertheless, SOMA plays a role sufficiently similar to allow
the comparison. Moreover, Riley cannot do anything to alter his
Tier 3 (high risk) designation, which is based on his prior
convictions. Unlike the Sexually Violent Predator Act, which
permits for yearly review to determine whether the committee
continues to pose a danger to the public and which allows for
his release if he does not, N.J.S.A. 30:4-27.35 to -27.36, SOMA
ensures that Riley’s future is static -- he is condemned to wear
the electronic monitoring device for the rest of his life.
B.
32
SOMA, moreover, “imposes an affirmative disability or
restraint” -- the second most important Mendoza-Martinez factor
in our analysis. See Smith, supra, 538 U.S. at 97, 123 S. Ct.
at 1149, 155 L. Ed. 2d at 180. That is evident from our
discussion that SOMA imposes a regime similar to parole. If the
“affirmative disability or restraint” imposed by a law “is minor
and indirect, its effects are unlikely to be punitive.” Id. at
99-100, 123 S. Ct. at 1151, 155 L. Ed. 2d at 181 (citation and
internal quotation marks omitted). On the other end of the
spectrum, if “the affirmative disability or restraint” is direct
and extreme, then the statute’s effects are more likely to be
punitive.
Here, the disabilities and restraints placed on Riley
through twenty-four-hour GPS monitoring enabled by a tracking
device fastened to his ankle could hardly be called “minor and
indirect.” Cf. id. at 100, 123 S. Ct. at 1151, 155 L. Ed. 2d at
181. Riley is tethered to an electronic device that must be
recharged every sixteen hours, and therefore he cannot travel to
places where there are no electrical outlets. In addition to
the requirement that he tell his parole officer before he leaves
the State, Riley cannot travel to places without GPS reception
because his tracker will be rendered inoperable and his parole
officer will be unable to monitor his whereabouts. SOMA clearly
impinges on the “freedom to travel,” which “has long been
33
recognized as a basic right under the Constitution.” See United
States v. Guest, 383 U.S. 745, 758, 86 S. Ct. 1170, 1178, 16 L.
Ed. 2d 239, 249 (1966). SOMA’s grant of authority to parole
officers to gain access to Riley’s home is also an incursion
into Riley’s Fourth Amendment privacy rights. See State v.
Domicz, 188 N.J. 285, 306 (2006) (stating that, generally, if
police do not have warrant, person, “in the familiar
surroundings of his home, can send the police away without fear
of immediate repercussions”). Moreover, the tracking device,
permanently strapped to Riley’s leg, causes pain when he sleeps.
Even though SOMA’s purpose is not to shame Riley, the
“effects” of the scheme will have that result. If Riley were to
wear shorts in a mall or a bathing suit on the beach, or change
clothes in a public locker or dressing room, or pass through an
airport, the presence of the device would become apparent to
members of the public. The tracking device attached to Riley’s
ankle identifies Riley as a sex offender no less clearly than if
he wore a scarlet letter. His parole officer may also send
audible messages to Riley on the tracker that he may receive in
a public place. Unlike the Megan’s Law registration and
notification scheme described in Smith, SOMA’s twenty-four-hour
surveillance of Riley and onerous restrictions deprive him of
freedom of movement and the ability “to live and work as other
34
citizens, with no supervision.” Cf. Smith, supra, 538 U.S. at
100-01, 123 S. Ct. at 1151-52, 155 L. Ed. 2d at 181-82.9
C.
The remaining Mendoza-Martinez factors discussed in Smith
do not alter the ineluctable conclusion that the “effects” of
the continuous GPS global monitoring scheme are punitive in
nature. Whether SOMA “promotes the traditional aims of
punishment” or has a “rational connection to a nonpunitive
purpose,” Id. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 180,
are not decisive factors here. To the extent that SOMA
resembles parole, it necessarily embodies aims commonly
associated with punishment, including deterrence. On the other
hand, “[a]ny number of governmental programs might deter crime
without imposing punishment.” Id. at 102, 123 S. Ct. at 1152,
155 L. Ed. 2d at 183. Rehabilitation too is a factor both in
fashioning a criminal sentence and in certain civil regulatory
schemes, such as the Sexually Violent Predator Act. It is
difficult to see what rehabilitative benefits SOMA might offer
Riley.
9 The Appellate Division dissent and the Board assert that SOMA
is “far less restrictive” than the Sexually Violent Predator
Act. However, the SVPA has a unique historical basis --
involuntary civil commitment. One cannot claim that parole and
probation are not punishment simply because they are less harsh
than civil confinement.
35
Public safety is a prime consideration in the imposition of
a criminal sentence, Schubert, supra, 212 N.J. at 307-08, yet
public safety is also a driving force for such nonpunitive civil
statutes as Megan’s Law and the Sexually Violent Predator Act.
All in all, these factors are inconclusive in determining
whether the statute is punitive or civil in nature. Id. at 307
(noting that statute will not be classified as “remedial rather
than punitive because the purpose of the statute is to protect
members of the community”).
Last, whether SOMA “is excessive with respect to [its
nonpunitive] purpose,” Smith, supra, 538 U.S. at 97, 123 S. Ct.
at 1149, 155 L. Ed. 2d at 180, necessarily depends on whether it
falls closer on the scale to traditional forms of punishment,
such as parole. The overall objective of SOMA is public safety,
which we have observed is present in both punitive and civil
remedial schemes.
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.” Id. at 92, 123 S. Ct. at 1147, 155 L.
Ed. 2d at 176 (alteration, citation, and internal quotation
marks omitted); see Bowditch, supra, 700 S.E.2d at 21 (Hudson,
J., dissenting) (“The physical and practical realities of the
[GPS monitoring] program . . . transform the effect of the
scheme from regulatory to punitive.”). The retroactive
36
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.
VIII.
For the reasons expressed, we affirm the judgment of the
Appellate Division, which held that the retroactive application
of SOMA to George Riley violates the Ex Post Facto Clauses of
the Federal and State Constitutions. We remand to the New
Jersey Parole Board for enforcement of this judgment.
JUSTICES LaVECCHIA and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE ALBIN’s opinion. CHIEF
JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-VINA filed a
separate, dissenting opinion.
37
SUPREME COURT OF NEW JERSEY
A-94 September Term 2011
069327
GEORGE C. RILEY,
Appellant-Respondent,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent-Appellant.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-
VINA, dissenting.
We dissent substantially for the reasons expressed in Judge
Parrillo’s thoughtful dissenting opinion. Riley v. N.J. State
Parole Bd., 423 N.J. Super. 224, 246 (App. Div. 2011) (Parrillo,
P.J.A.D., dissenting).
1
SUPREME COURT OF NEW JERSEY
NO. A-94 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
GEORGE C. RILEY,
Appellant-Respondent,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent-Appellant.
DECIDED September 22, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY C.J. Rabner, Justices Patterson and Fernandez-Vina
CHECKLIST AFFIRM/REMAND REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 4 3
1