Monday, May 08, 2017

The Released Sex Offender, Community Supervision and the Ban on Computers

This post examines an opinion from the Supreme Court of New Jersey: J.I. v. New Jersey State Parole Board, 2017 WL 1057462 (2017). The court begins by explaining that
the Internet plays an essential role in the daily lives of most people—in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender. In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose. The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.

After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes. The District Parole Supervisor justified the ban based not on J.I.'s conduct while on community supervision for life, but rather on his conduct years earlier—the accessing of pornography sites and the possession of pornography—that led to a violation of his parole. A Parole Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device. The Parole Board upheld that determination and denied J.I. a hearing. The Appellate Division affirmed.
J.I. v. New Jersey State Parole Board, supra.  As may already be obvious, this is going to be a long post because the case is, as lawyers say “fact-sensitive.”      
The court went on to explain that
[w]e now reverse and remand to the Parole Board. Conditions imposed on CSL offenders—like those imposed on regular parolees—are intended to promote public safety, reduce recidivism, and foster the offender's reintegration into society. Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders. We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban, after J.I.'s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.'s computer. After the imposition of the total ban for J.I.'s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout. The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion. The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.
J.I. v. New Jersey State Parole Board, supra.          
The opinion then goes on to explain how, and why, the prosecution arose:
In 2003, J.I. pled guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14–2(b), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24–4(a). J.I. admitted that, over a period of time, he sexually molested his three daughters, who ranged from six to fourteen years old. The trial court sentenced J.I. to a seven-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43–7.2, on the sexual assault charge and to concurrent terms of seven years on the endangering charges. The court found that J.I.'s “conduct was characterized by a pattern of repetitive and compulsive behavior” and that he was amenable to sex offender treatment, and therefore ordered that the sentence be served at the Adult Diagnostic and Treatment Center (ADTC). The court also imposed a three-year period of mandatory parole supervision, to begin after J.I.'s release from custody, and a special sentence of community supervision for life, to follow the parole supervision period. Additionally, J.I. is subject to the registration and notification requirements of Megan's Law, N.J.S.A. 2C:7–1 to –23.
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court then explained what happened next:
Upon J.I.'s release from confinement in October 2009, the Parole Board served him with the conditions of his mandatory parole supervision, which included the mandate that he refrain from accessing any social networking service or chat room. In January 2010, a parole officer's search of J.I.'s computer revealed that J.I. had visited multiple websites that `depicted minors in the nude.’ J.I. admitted to doing so. A parole officer also found in J.I.'s possession `”barely legal” DVDs and a book of “artistic” photos of pre-teen and minor females in the nude.’

J.I. was not charged with a criminal offense or parole violation, but his sex-offender treatment provider indicated that the possession of such material was `not conducive to [J.I.'s] rehabilitation or reintegration into society.’ In light of J.I.'s conduct, the Parole Board prohibited J.I. from using any Internet-capable device.

In October 2010, the parole authorities arrested J.I. for possessing a mobile phone with Internet capability and for using it `regularly in that capacity.’ In March 2011, a panel of the Parole Board found that J.I. had violated the conditions of his supervised release by having “an Internet capable device in his possession” and by his earlier `accessing pornography and images of nude children.’ In June 2011, J.I. returned to confinement at the ADTC, where he remained until his release sixteen months later.
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court then took up the issue that is in dispute in this appeal, noting, initially, that
[b]efore his release in October 2012, J.I. acknowledged in writing the conditions attached to his community supervision for life. The only restriction on J.I.'s use of a computer or the Internet was that he `refrain from using any computer and/or device to create any social networking profile or to access any social networking service or chat room ... unless expressly authorized by the District Parole Supervisor.’ Under the social networking condition, J.I. was prohibited from accessing websites such as Facebook and J.I. otherwise had full access to the Internet. Indeed, a Deputy Attorney General confirmed by email that the social networking restriction was the only limitation on J.I.'s use of the Internet.

In 2013, J.I. was sixty-two years old, unemployed, and without the means to pay the mortgage on the home where his wife and son lived or otherwise provide financial assistance to his family. To further his search for employment, J.I. requested that his District Parole Supervisor modify the social networking condition to allow him to access LinkedIn, a job-related networking site. At this point, J.I. was in compliance with all the conditions of his community supervision for life, including the Internet conditions.
J.I. v. New Jersey State Parole Board, supra.
The court then explains what happened next:
In response to J.I.'s request for a limited modification to the social networking condition, on December 5, 2013, J.I.'s District Parole Supervisor prohibited J.I. from accessing the Internet for any purpose other than employment purposes, subject to his installing monitoring software on his computer. J.I.'s request to access LinkedIn was granted. J.I., however, was now subject to far more onerous Internet restrictions than before his request for relief—despite his thirteen-month compliance with the terms of his community supervision. The District Parole Supervisor justified this near-total Internet ban based on J.I.'s noncompliance, three years earlier, with “the State Parole Board's Social Networking/internet condition and his use of questionable and inappropriate internet sites.” Six days later, on December 11, 2013, a panel of the Parole Board affirmed the near-total Internet blackout. Nothing in the Board panel's statement of reasons suggests that J.I. had the opportunity to submit written objections to the newly imposed Internet restrictions.

Almost fifty days later, the District Parole Supervisor admonished J.I. for visiting non-work-related websites—a car-buying website, `Godtube,’ `Morris Psychological Group,’ and `Covenant Eye.’ Covenant Eye was the filtering website program that allowed J.I.'s parole officer to track and monitor his Internet usage.
J.I. v. New Jersey State Parole Board, supra (note omitted). In the omitted note, the Supreme Court explains that
[a]ccording to J.I. (per his Appellate Division brief), Godtube is a `religious website providing spiritual guidance through videos and biblical passages,’ and the Morris Psychological Group is where `his sex offender specific therapist is employed.’ Contact information for that therapist is located on the Group's website.
J.I. v. New Jersey State Parole Board, supra.
The court goes on to explain other encounters J.I. had with the authorities who were monitoring his uses of the Internet, explaining, initially, that
[o]n February 17, 2014, J.I. appealed to the Parole Board the conditions imposed by the District Parole Supervisor, restricting his computer and Internet access to employment-related uses. Ten days later, J.I. was admonished again, this time for visiting the websites of the church he attended—the Parsippany Baptist Church—and `Rent to Own.’

On March 7, 2014, J.I. and his counsel met with the District Parole Supervisor and a parole officer. At this meeting, the District Parole Supervisor stated that J.I. was never permitted to use a computer or access the Internet until he authorized him to do so and, then, only for work-related purposes. The District Parole Supervisor's assertion conflicted not only with the written CSL conditions issued at the time of J.I.'s release from custody, but also with assurances given to J.I.'s attorney by a Deputy Attorney General. The District Parole Supervisor made clear that J.I. could not use the Internet to communicate with relatives, visit his church's website, make purchases, bank, or engage in any other benign activity except to seek employment.

After the meeting, J.I. continued to visit websites unrelated to his employment search:, a website explaining different assistance programs, and, a website offering weight-loss counseling. In response, J.I.'s parole officer barred him from using a computer or the Internet for any purpose. J.I. was also advised that if any Internet-capable device—such as an iPhone—were found in his possession, he would be arrested. The parole authorities did not allege that J.I. accessed pornographic or illicit websites since his release from confinement.

In June 2014, a Parole Board panel affirmed the `computer/Internet' and `social networking' conditions attached to J.I.'s community supervision for life and denied his request for an evidentiary hearing.
J.I. v. New Jersey State Parole Board, supra.
The court goes on to explain the other steps J.I. took in an effort to have the restrictions on his use of the Internet relaxed, if not removed:
[o]n administrative appeal, J.I. urged the full Parole Board to remove the Internet and computer restrictions and grant him an evidentiary hearing.

On October 29, 2014, the full Parole Board issued a final agency decision, affirming the authority of the District Parole Supervisor to bar J.I. from using a computer or Internet-capable device and requiring him `to provide the nature and purpose of each request for computer/Internet use or social networking.’ According to the Board, the Division of Parole would determine whether each request for Internet use was consistent with J.I.'s rehabilitative needs based on supporting documentation.

The Parole Board found that the Division of Parole's complete restriction on J.I.'s use of a computer or Internet-capable device was justified because of his `willful disregard’ of the prohibition against accessing non-work-related websites. The Board also denied J.I.'s request for an evidentiary hearing, reasoning that the computer/Internet access ban did not constitute the infringement of a liberty interest similar to the imposition of a curfew and that no factual issue had to be resolved.
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court went on to note that a
panel of the Appellate Division upheld the Parole Board's decision to keep standing a total ban on J.I.'s access to a computer and the Internet as a condition of his community supervision for life. J.I. v. N.J. State Parole Bd., 441 N.J.Super. 564, 120 A.3d 256 (App. Div. 2015). In doing so, the panel reaffirmed the constitutionality of N.J.A.C. 10A:71–6.11(b)(23). Id. at 578–79, 120 A.3d 256; see also J.B. v. N.J. State Parole Bd., 433 N.J.Super. 327, 341, 79 A.3d 467 (App. Div. 2013), certif. denied, 217 N.J. 296, 88 A.3d 192 (2014). That provision allows a Parole Board panel to order a parolee to `[r]efrain from using any computer and/or device to create any social networking profile or to access any social networking service.' N.J.A.C 10A:71–6.11(b)(23). The panel indicated that its affirmance of the social networking restriction in J.B. did not suggest that the Parole Board could not impose an absolute ban on the use of an Internet-capable device in a particular case. J.I., supra, 441 N.J.Super. at 579, 120 A.3d 256.

The panel also rejected J.I.'s ex-post facto and as-applied due process challenges to N.J.A.C. 10A:71–6.11(b)(23), which was adopted before J.I. began serving his community supervision for life but after the events resulting in his convictions. Id. at 580–82, 120 A.3d 256. The panel held that the regulation `is remedial in purpose and effect, not punitive’ and that `[i]t is aimed at protecting the public from sex offenders, fostering rehabilitation, and reducing the likelihood of recidivism.’ Id. at 582, 120 A.3d 256.

The panel, moreover, rejected J.I.'s argument that the Parole Board's decision to uphold an `absolute ban on his use of an Internet-capable device’ was arbitrary and capricious. Id. at 583, 120 A.3d 256. The panel asserted that the absolute ban was justified because of J.I.'s repeated violations of the conditions of his community supervision, which limited his Internet use to employment purposes; the nature of the crimes he committed; and his earlier accessing of pornographic material. Id. at 584, 120 A.3d 256. The panel found that the special `conditions were reasonable in order to reduce the likelihood of his recidivism and consistent with protecting the public safety and welfare and fostering his rehabilitation.’ Ibid. The panel concluded that J.I. had a due process right `of notice and an opportunity to object to the conditions and request broader Internet access,’ but not a right to a hearing. Id. at 584–85, 120 A.3d 256.

We granted J.I.'s petition for certification. J.I. v. N.J. State Parole Bd., 223 N.J. 555, 127 A.3d 701 (2015). We also granted the motions of the American Civil Liberties Union of New Jersey (ACLU–NJ) and the Office of the Public Defender to participate as amici curiae.
J.I. v. New Jersey State Parole Board, supra.
I am going to depart from my usual practice at this point in this post because the opinion goes on for many more pages, analyzing specific issues that were originally in the case or that cropped up later. I am going to follow the thread that will eventually lead to the court’s decision in the case.
Toward the end of the opinion, the court explains that
[a]t the time of J.I.'s second release from confinement, the social networking condition was the only restriction on his use of an Internet-capable device. A Deputy Attorney General confirmed that point with J.I.'s attorney by email. The District Parole Supervisor, therefore, was mistaken in his understanding that J.I. was never authorized to use the Internet upon his release. Although he indicated otherwise to J.I., the District Parole Supervisor had no power to impose restrictions orally or without the approval of a Board panel. Despite J.I.'s thirteen-month compliance with the Internet conditions attached to his CSL status, the District Parole Supervisor imposed dramatic restrictions after J.I. requested permission to access a professional networking site that he believed would improve his prospects for employment. As a result, J.I. went from full access to the Internet, subject to the social networking restriction, to no access to the Internet, except for employment purposes. The District Parole Supervisor did not point to any conduct during J.I.'s thirteen-month CSL period to justify the newly imposed restrictions. Instead, he justified the Internet ban based on J.I.'s visiting pornography websites more than three years earlier.

With no apparent input from J.I., a Board panel affirmed the Internet ban except for employment purposes. The timeline of events suggests that J.I.'s simple request for a relaxation of the social networking condition—to allow access to LinkedIn—set in motion the imposition of CSL conditions that banished him from nearly all of life's activities on the Internet.

J.I. appealed to the full Parole Board challenging the newly imposed special condition restricting his Internet access for employment purposes only. He also requested a hearing.

Ultimately, the near-total ban was transformed into a complete Internet ban. Before and after J.I. filed his administrative appeal, he visited the websites of his church, his therapist, and other seemingly benign websites. Those websites were not employment related and therefore accessing them was in violation of the new special condition. Thereafter, the parole authorities barred J.I. from using the Internet for any purpose—including employment-related purposes—and from possessing any Internet-capable device. A Parole Board panel and then the full Parole Board affirmed that decision. The Board denied J.I.'s request for a hearing.
J.I. v. New Jersey State Parole Board, supra.
The court began its ruling in the case by explaining that
[a]lthough the reasonableness of Internet restrictions imposed on a CSL offender is a novel issue for this Court, federal courts, such as the United States Court of Appeals for the Third Circuit, have addressed Internet restrictions on supervised offenders with some frequency. Although the federal statute dealing with supervised release, 18 U.S.C.A. § 3583, is worded differently from New Jersey's corollary CSL provisions, the principles governing the federal and state statutes are similar. Under federal law—as under state law—`the primary purpose of supervised release is to facilitate the integration of offenders back into the rather than to punish them.’ Albertson, supra, 645 F.3d at 197 (citing U.S. Sentencing Comm'n, Federal Offenders Sentenced to Supervised Release 8–9 (2010)). Moreover, conditions of supervised release under federal law must be `reasonably related’ to federal sentencing factors and must involve `no greater deprivation of liberty than is reasonably necessary’ to fulfill the statute's purposes. Id. at 196–97 (citing United States v. Pruden, 398 F.3d 241, 248 (3d Cir. 2005)).
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court therefore concluded the opinion by holding that
[t]he Internet condition imposed by the District Parole Supervisor in December 2013 denying J.I. access to the Internet for any purpose unrelated to employment was unreasonable because it was not tied to criminal conduct, rehabilitation, or public safety. Moreover, J.I.'s prior visits to pornographic websites and possession of pornographic material occurred before his re-incarceration and after he had complied for more than a year with his CSL terms. The Parole Board had available less restrictive alternatives than a complete Internet ban to achieve its mission.

Accordingly, the Internet condition placed on J.I. cannot be sustained on administrative law grounds.
J.I. v. New Jersey State Parole Board, supra.
The Supreme Court therefore reversed the decision of the Superior Court – Appellate Division. J.I. v. New Jersey State Parole Board, supra.

If you are interested, you can find the entire opinion online here:

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