Is Monitoring Sex Offenders Legal?

Electronic monitoring of convicted sex offenders on probation or parole has been a common practice in New Jersey for some time. Since August 2005, individuals convicted of the most serious sex crimes face required GPS monitoring when they are not incarcerated or subject to civil commitment. This law applies to all Tier III sex offenders, including those who have been convicted of sex offenses against children, and to selected lower-tier offenders. The goal of the program is to prevent further sex crimes by those who are no longer imprisoned.

The program began in 2005 as a pilot program, but became law in 2007, before the pilot actually ended. The program has been viewed favorably by the public and especially by New Jersey's parole officers, who carry one of the largest sex offender caseloads in the United States. GPS monitoring of those who are most likely to commit additional Tier III sex crimes has allowed parole officers to provide high levels of attention to these and other convicted sex offenders for whom they are responsible.

Despite the generally positive view of the monitoring program, an appeals court has ruled that a recently released convicted Tier III sex offender should not be monitored because the law was enacted after his conviction. The decision has received considerable attention because the court said that monitoring requirements violated the prohibition of retroactive laws in the state and federal constitutions.

The issue in this case is that the convicted offender, 78 year-old George C. Riley, had served the entire 20-year sentence imposed on him at the time of his 1986 conviction for attempted sexual assault. Because he had served the entire sentence, he was not on parole after his release. He was, however, subject to annual registration and other requirements imposed by Megan's Law.

Six months after his 2009 release, he was notified that he was required to comply with 24/7 GPS monitoring because he had been classified as a Tier III offender. Riley objected, but an officer came to his house and placed the monitoring bracelet on his ankle. He subsequently filed an appeal with the parole board and was denied.

In overturning the parole board's decision, the court, which ruled 2-1 in Riley's favor, cited the following objections to the monitoring device:

The device caused significant discomfort and swelling of the leg and prevented Riley from wearing certain shoes.

The wearer is required to pay the cost of repair or replacement should the device malfunction.

The device must be charged every 16 hours, making it almost impossible for Riley to vacation in a campground or visit other remote areas.

A parole officer is allowed to enter the wearer's house without a warrant if the device stops transmitting or for almost any other reason.

Most importantly, the court ruled that requiring Riley to wear the ankle bracelet violated the ex post facto clause of the U.S. Constitution that prohibits retroactive punishment. Writing for the majority, Judge Steven Skillman observed:

The physical and practical realities of the [monitoring] program -the size and weight of the ankle bracelet and [tracking device], the requirement to remain in one place for six hours for daily recharging, the degree to which [monitoring] interferes with everyday work and recreation activities, the degree to which the program impedes enrollees' freedom of travel, and its invasive requirement for consent to enter an enrollee's home - transform the effect of the scheme from regulatory to punitive.

In his dissent, Judge Anthony J. Parrillo said that GPS monitoring "does not rise to the level of a direct and punitive disability or restraint," and is far less restrictive than involuntary civil confinement imposed on some convicted sex offenders.

Because GPS monitoring of convicted sex offenders is now in flux - and the Riley case will almost certainly be heard by the New Jersey Supreme Court - it is important to consult an attorney in matters involving registration and monitoring requirements in New Jersey.