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J.I. v. New Jersey State Parole Board

Supreme Court of New Jersey

March 21, 2017

J.I., Appellant-Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent-Respondent.

          Argued November 7, 2016

         On certification to the Superior Court, Appellate Division, whose opinion is reported at 441 N.J.Super. 564 (App. Div. 2015).

          Michael C. Woyce argued the cause for appellant (Murphy & Woyce, attorneys; Mr. Woyce and Joseph S. Murphy, on the briefs).

          Lisa A. Puglisi, Assistant Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General of New Jersey, attorney, Ms. Puglisi and Christopher C. Josephson, Deputy Attorney General, on the letter briefs).

          Fletcher C. Duddy, Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Joseph E. Krakora, Public Defender, attorney).

          Ronald K. Chen argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Rutgers Constitutional Rights Clinic Center for Law & Justice and Edward L. Barocas, Legal Director, attorneys; Mr. Chen, Mr. Barocas, Jeanne M. LoCicero, and Alexander R. Shalom, of counsel and on the brief).

          ALBIN, J., writing for a unanimous Court.

         The Court considers: (1) whether a total Internet ban imposed on a community supervision for life offender is so overbroad and oppressive that it serves no rational penological purpose; and (2) whether the New Jersey State Parole Board improperly denied the offender 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 (CSL). In 2003, he pled guilty to one count of sexual assault and two counts of endangering the welfare of a minor, having admitted that he sexually molested his three daughters, who ranged from ages six to fourteen. The trial court's sentence included a term of incarceration and a three-year period of mandatory parole supervision to begin after his release. The court also imposed a special sentence of CSL, to follow the parole supervision period. When J.I. was released in 2009, the New Jersey State Parole Board (Parole Board) informed him that he was prohibited from accessing any social networking service or chat room.

         In January 2010, a search of J.I.'s computer revealed that he had visited multiple websites that depicted minors in the nude and was in possession of photos of minors in the nude. He was not charged with a parole violation, but his sex-offender treatment provider indicated that the possession of such material was not conducive to his rehabilitation. As a result, the Parole Board prohibited him from using any Internet-capable device. In October 2010, parole authorities arrested J.I. for possessing a phone with Internet capability and for using it in that capacity. A Parole Board panel subsequently found that J.I. had violated the terms 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, he returned to confinement where he remained until his release in October 2012.

         Before his 2012 release, J.I. was informed that he was to refrain from using any computer 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. He otherwise had full Internet access. In 2013, to further his search for employment, J.I. requested that his District Parole Supervisor modify the social networking condition to allow him to access Linkedln. His request was granted, but the District Parole Supervisor prohibited J.I. from accessing the Internet for any reason other than employment purposes. The District Parole Supervisor justified the near-total Internet ban based on J.I.'s noncompliance, three years earlier, with the social networking/Internet condition and his accessing of inappropriate websites. On December 11, 2013, a panel of the Parole Board affirmed the near-total Internet blackout.

         The District Parole Supervisor subsequently admonished J.I. for visiting non-work-related websites. J.I. appealed to the Parole Board. Ten days later, he was admonished again, this time for visiting the websites of the church he attended and "Rent to Own." On March 7, 2014, J.I. and his counsel met with the District Parole Supervisor and a parole officer. 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. He was prohibited from using the Internet to engage in any activity except to seek employment. J.I. continued to visit websites unrelated to his employment search and as a result, his parole officer barred him from using a computer or the Internet for any purpose. In June 2014, a Parole Board panel affirmed the conditions and denied his request for a hearing. 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. The full Parole Board found the restrictions justified because of J.I. 's willful disregard of the prohibition against accessing non-work-related websites and denied his request for a hearing.

         In a published decision, the Appellate Division upheld the Parole Board's decision. 441 N.J.Super. 564 (2015). The panel found that the conditions were reasonable in order to reduce the likelihood of his recidivism and consistent with protecting the public safety and welfare. The Court granted J.I.'s petition for certification. 223 N.J. 555 (2015).

         HELD: Arbitrarily imposed Internet restrictions that are not tethered to promoting public safety, reducing recidivism, or fostering an offender's reintegration into society are inconsistent with the administrative regime governing CSL offenders. The complete denial of access to the Internet implicates a liberty interest, which triggers due process concerns. After the imposition of the total ban for J.I. 's Internet violations, he should have been granted a hearing. The matter is remanded to the full Parole Board for a hearing in which it must determine whether the total computer and Internet ban serves any public-safety, rehabilitative, or other penological goal.

         1. Access to the Internet is a basic need. Most unemployed workers searching for jobs do so on the Internet and it is difficult to imagine how a person could function in modern society given a lifetime ban on all forms of computer access and use. (pp. 17-18)

         2. Sex offenders on CSL are subject to continued governmental oversight and diminished personal autonomy. One of the purposes of supervision is to help offenders reintegrate into society. Specific conditions restricting their activities must bear a reasonable relationship to reducing the likelihood of recidivism and fostering public protection and rehabilitation. The Parole Board's Division of Parole is responsible for monitoring CSL offenders. All conditions of CSL must be in writing and signed by the CSL offender at the time of release from custody. CSL requires that offenders refrain from using any computer or device to create a social networking profile or to access any social networking service or chat room unless authorized by the District Parole Supervisor. Requiring that a CSL offender's history inform the imposition of Internet special conditions ensures that they bear a reasonable relationship to promoting public safety and fostering rehabilitation. If the District Parole Supervisor imposes additional special conditions, he must give written notice to the CSL offender and to the Parole Board. The Board panel must advise the District Parole Supervisor within three working days whether it has affirmed the imposition of the special condition. Internet conditions should be tailored to the individual CSL offender, taking into account the underlying offense, the rehabilitative needs of the offender, and public safety. The Legislature evidently did not intend that a total ban on Internet use should be deployed when less restrictive alternatives can achieve the goal of public safety and personal rehabilitation, (pp. 18-23)

         3. At 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. The District Parole Supervisor was mistaken in his understanding that J.I. was never authorized to use the Internet upon his release. 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. He justified the Internet ban based on J.I.'s visiting pornography websites more than three years earlier. J.I.'s simple request for a relaxation of the social networking condition set in motion the imposition of CSL conditions that banished him from nearly all of life's activities on the Internet. Ultimately, the near-total ban was transformed into a complete Internet ban. (pp. 23-25)

         4. Federal courts have addressed Internet restrictions on supervised offenders with some frequency. The Third Circuit has upheld a complete ban on internet access, except with prior approval of probation, when offenders have used or have clearly demonstrated a willingness to use the Internet as a direct instrument of physical harm. However, even in child pornography cases, the Third Circuit has declined to deny an offender access to email or benign Internet usage when a more focused restriction, limited to pornography sites and images, can be enforced, (pp. 26-29)

         5. J.I. did not use the Internet as a means of committing the offenses for which he was placed on CSL. The record does not suggest that he ever visited a pornographic or illicit website, or used the Internet in any unlawful way, after his ultimate release in October 2012. The Court does not condone defendant's violations of the near-total ban by accessing benign websites. Nevertheless, the special conditions that have brought about this appeal were overbroad. Concerns about J.I. 's potential abuse of the Internet could have been addressed through less restrictive means. The condition 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 and because the Parole Board had available less restrictive alternatives than a near-total Internet ban to achieve its mission. Further, J.I. was entitled to an opportunity to challenge the proposed imposition of the severely enhanced Internet restrictions. A CSL offender possesses protectible liberty interests and the deprivation of such interests implicates the minimal requirements of due process, (pp. 30-33)

         6. The level of process required will depend on a number of variables, including the timing of and justification for the Internet restriction, the severity and length of the restriction, whether facts are contested or uncontested, and whether credibility determinations must be made. The balance of interests weighs in favor of giving a supervised offender the opportunity to respond to a near-total or absolute Internet ban imposed more than a year after the offender's release from confinement. Allowing a CSL offender to file a written submission to a Board panel challenging a District Parole Supervisor's modification of an Internet condition is a sensible accommodation to ensure the due process rights of a CSL offender are consonant with the Parole Board's regulatory scheme, (pp. 35-37)

         7. The absolute restriction on J.I.'s access to the Internet may undermine his rehabilitation and hinder his ability to succeed as a free agent in society. Although J.I. has not alleged any factual disputes in the record that would suggest the need for an evidentiary hearing, he is able to submit certifications from his therapist and other relevant sources to the Board's attention. The circumstances of this case, however, call for more process. J.I., personally and/or through his attorney, must be given an opportunity to appear before the Board and be heard. The additional process will not impose an undue administrative burden, and it may reduce the potential for an erroneous deprivation of a liberty interest, (pp. 37-38)

         The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Parole Board for further proceedings consistent with this opinion.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN'S opinion.

          OPINION

          ALBIN JUSTICE

         Today, 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.

         We 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.

         I.

         A.

         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.

         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.

         B.

         Before 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 ...


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