GPS Satellite Monitoring Of Sex-Offenders Retroactive?
- May 25, 2014
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NJ awaits the decision of the NJ Supreme Court on whether a state statute requiring GPS monitoring of sex-offenders will have retroactive application to those already released from jail. The main decision point is whether the 2007 Sex Offender Monitoring Act (SOMA) (N.J.S.A. 30:4-123.89 to 123.95) is intended to punish sex offenders, triggering the United States Constitution’s ex post facto clause, or it is intended to rehabilitate offenders and protect the public. Riley was originally found guilty of attempted sexual assault committed in 1986 and sentenced to an extended term of 20 years in prison to run consecutive to a sentence he was already serving for a violation of parole. Riley v. State Parole Board began when, upon release from prison in 2009, he was informed by the Parole Board that, as a classified Tier III sex-offender under Megan’s Law (N.J.S.A. 2C:7-1 to 19) with a high risk of re-offense (N.J.S.A. 30:4-123.91(a)(1)), he would be subject to constant GPS monitoring via an ankle bracelet. When wearing the ankle bracelet, a previously convicted sex-offender can move about freely as if without the bracelet, however, “big brother” is constantly watching. This can be likened to parole which is a form of punishment within the criminal justice system. The state’s argument is that this form of monitoring is no more restrictive than carrying a cellular phone, with the presumptive reference being the ability to view the location of a cell phone at any time via GPS devices. Certainly there are differences, notably an individual may put their cell phone down anywhere any time and is not tethered to the phone constantly as well as the fact that, although possible, and even legal under certain circumstances, there is not an expectation that police are constantly tracking you by your cell phone. Additionally, although one may leave a cell phone on a charger and go elsewhere while it charges, a convicted sex-offender subject to GPS monitoring must charge the bracelet daily by remaining tethered to an electrical outlet for 2 hours. In Riley, the lower court held that the law is punitive and therefore not retroactively applicable. Upon appeal by the state, the NJ Appellate Division struck down retroactive application of a similar GPS monitoring law as unconstitutional in keeping with Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009) and parting with the holdings in Doe v. Poritz, 142 N.J. 1 (1995) and Smith v. Doe, 538 U.S. 84 (2003) holding sex-offender notification requirements as non-punitive. Commission of a sexual offense can be discovered many years after the incident or incident and can result in incarceration, substantial and irreparable damage to the reputation and lifestyle of the accused in addition to the deprivation of liberty and rights, registration as a sex offender, loss of employment opportunities, possibility of civil commitment and social stigma. If you are accused of a sex crime it is absolutely imperative that you obtain experienced criminal defense counsel to begin working on your defense immediately. For more information about sexual assault, rape, endangering the welfare of a minor, internet crimes, child pornography or other sex crimes in NJ visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of counsel.