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 Match.com. 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: typesofaid.com, a website
explaining different assistance programs, and slimming.com, 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: http://caselaw.findlaw.com/nj-supreme-court/1853791.html
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