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J.B. v. New Jersey State Parole Board

Supreme Court of New Jersey

May 8, 2017

J.B., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent. L.A., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent. B.M., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent. W.M., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent. R.L., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent.

          Argued January 17, 2017

         On certification to the Superior Court, Appellate Division, whose opinion is reported at 444 N.J.Super. 115 (App. Div. 2016).

          Michael C. Woyce argued the cause for appellants L.A., W.M., and R.L. (Murphy & Woyce, attorneys).

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

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

         FERNANDEZ-VINA, J., writing for a unanimous Court.

         Petitioners L.A., R.L., and W.M. (parolees) challenge the constitutionality of the practices of the New Jersey State Parole Board (Parole Board) in administering polygraph examinations to sex offenders serving either parole supervision for life (PSL) or community supervision for life (CSL) sentences.

         The parolees' circumstances are substantially the same. All have been convicted of a sexual offense, have completed their respective prison terms, and are now being monitored by the Parole Board as offenders subject to either PSL or its statutory predecessor, CSL. As part of the Parole Board's monitoring, the parolees were each required to submit to a polygraph examination to monitor compliance with the conditions of parole.

         After the Parole Board notified the parolees that they were subject to polygraph examination, the parolees each objected. The Parole Board rejected each of the parolees' administrative appeals. The individual parolees appealed the Parole Board's decisions. Because the record contained insufficient evidence to assess the purported therapeutic and rehabilitative value of polygraph examinations, the Appellate Division referred that issue to the trial court for supplemental proceedings.

         Following an evidentiary hearing at which several expert witnesses testified, the trial court ultimately found that there is enough support in the record to conclude that there is a reasonable basis for using polygraph testing in the supervision of sex offenders serving PSL and CSL sentences in the community. Although it recognized the controversy concerning polygraph examination accuracy, the trial court explained that the Parole Board exercises care in incorporating exam results into decision-making and never uses the results as the exclusive basis to justify a modification of parole. Further, the trial court found expert testimony indicating that polygraph examinations are a valuable tool in the therapeutic treatment of sex offenders to be particularly compelling.

         The Appellate Division thereafter upheld the Parole Board's use of polygraph testing, subject to certain restrictions. 444 N.J.Super. 115, 123 (App. Div. 2016). Although it dismissed the parolees' constitutional concerns, the Appellate Division required the Parole Board to "enhance its regulations and practices to safeguard an offender's right to invoke his constitutional privilege against self-incrimination." Id. at 123. Specifically, the Appellate Division explained that the Parole Board should "spell out more clearly what uses of the polygraph testing are allowed and disallowed" consistent with the limitations on machine-generated test results mandated in the opinion. Id. at 161-62. The Appellate Division allowed six months for the Parole Board to adopt updated policies formally, through rule-making. Id. at 162. The Parole Board, in turn, adopted regulatory amendments that took effect on December 5, 2016.

         The Court granted the parolees' petition for certification. 226 KI 213 (2016); 226 KI 214 (2016).

         HELD: The Court affirms but modifies the Appellate Division's opinion. The Court upholds the Parole Board's use of polygraph testing with the same limitations as the Appellate Division, but adds that the Parole Board's regulations must be further supplemented to buttress the parolees' Fifth Amendment right against self-incrimination.

         1. N.J.S.A. 30:4-123.88 provides that "[t]he State Parole Board . . . may administer . . . polygraph examinations in order to obtain information necessary for risk management and treatment and to reduce the offender's denial mechanisms, " and that "[t]he results of the polygraph examination shall not be used as evidence in court to prove a violation of the special sentence of [CSL or PSL] or condition of discharge has occurred." Non-compliance with the requirements of the monitoring program is a third-degree crime. N.J.S.A. 30:4-123.94. (pp 12-13)

         2. The Parole Board adopted regulations to implement the polygraph testing authorized by the Act. An offender's assigned parole officer may recommend administration of a polygraph examination. N.J.A.C. 10A:72-3.4(a). If a supervisor decides it is appropriate to administer a polygraph examination, then an offender receives notice at least thirty days before a scheduled examination. N.J.A.C. 10A:72-3.5(a). (pp 13-16)

         3. Included with the notification is a disclosure form, which must detail the scope of the examination, the consequences of failure to cooperate with the examination, the consequences of voluntarily providing identifying information of any previously unreported victims or crimes, and an explanation of how authorities may utilize information learned during the examination. N.J.A.C. 10A:72-3.5(b); 10A:72-3.6(b). The polygraph examination process consists of three parts: a pre-examination interview, the polygraph examination itself, and a post-examination interview. N.J.A.C. 10A:72-3.7(a). (pp 16-17)

         4. Effective December 2016, the regulations provide that the results of any portion of the polygraph examination "may be used for therapeutic treatment purposes." N.J.A.C. 10A:72-3.6(b)(6); 10A:72-3.9(c). However, the machine-generated results of the polygraph examination "shall not be relied on or cited as evidence to support the filing of criminal charges or to justify the imposition or modification of sanctions, " N.J.A.C. 10A:72-3.6(b)(7); 10A:72-3.9(d), or "used as evidence in court to prove that a violation of the special sentence of community or parole supervision for life or condition of discharge has occurred." N.J.A.C. 10A:72-3.6(b)(9); 10A:72-3.9(f). (pp. 17-18)

         5. In Minnesota v. Murphy. 465 U.S. 420 (1984), the United State Supreme Court considered whether a statement made by a probationer to a probation officer without prior Miranda warnings could be admissible in a subsequent criminal proceeding. The Supreme Court found that it is permissible for a State to require a probationer to appear and discuss matters that affect his probationary status. However, the Supreme Court went on to explain that "[t]he result may be different if the questions put to the probationer. . . call for answers that would incriminate him in a pending or later criminal prosecution, " or "if the State, either expressly or by implication, asserts that invocation of the [Fifth Amendment] privilege would lead to revocation of probation." Ibid. In such a case, "the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution." Ibid, (pp 19-21)

         6. The Parole Board's revised polygraph regulations substantially adhere to those principles, and the polygraph examination is not a custodial interrogation. The Court rejects the parolees' claim that they have a right to the presence of counsel during a polygraph examination and upholds the use of information obtained from pre- and post-examination interviews to support the filing of criminal charges or the imposition of sanctions. The Court is not convinced that the current regulations fully inform parolees of the scope of their right to remain silent during the polygraph examination process, however, (pp 21-24)

         7. Parolees are advised "[t]hat the valid exercise of the right to remain silent does not constitute failure to fully participate and/or cooperate with the examination, " but there is no explanation of what constitutes a "valid" exercise of that right. N.J.A.C. 10A:72-3.6(b)(5) (emphasis added). Because "failure to fully participate and cooperate with the examination" constitutes a third-degree crime, N.J.S.A. 30:4-123.94, the current disclosures create a situation in which the parolees' right to remain silent is impermissibly encumbered by pressure to avoid additional criminal charges for failing to cooperate. See Murphy, supra. 465 U.S. at 435. The Court therefore instructs the Parole Board to clarify that an offender validly invokes the right to remain silent pursuant to N.J.A.C. 10A:72-3.6(b)(5), without consequence, if the answer to any question asked throughout any portion of the examination process as defined in N.J.A.C. 10A:72-3.7(a) could form the basis of an independent criminal investigation, (pp. 24-26)

         8. The State has a significant interest in ensuring adherence to the restrictive conditions imposed pursuant to PSL and CSL to protect the public from recidivism by defendants convicted of serious sexual offenses that outweighs the parolees' limited right to privacy. Addressing the parolees' challenge to the Parole Board regulations as arbitrary and capricious, the Court concludes that the parolees have not shown that it should set aside the Parole Board's regulatory scheme, (pp. 26-31)

         The judgment of the Appellate Division is AFFIRMED as MODIFIED. The Court instructs the Parole Board to issue revised regulations consistent with this opinion.

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

          OPINION

          FERNANDEZ-VINA JUSTICE.

         Petitioners L.A., R.L., and W.M. (parolees) challenge the constitutionality of the practices of the New Jersey State Parole Board (Parole Board) in administering polygraph examinations to sex offenders serving either parole supervision for life (PSL) or community supervision for life (CSL) sentences pursuant to N.J.S.A. 2C:43-6.4.

         The parolees are all convicted sex offenders who have been released into the community subject to monitoring by the Parole Board. For substantially similar reasons, they object to the administration of periodic polygraph examinations, which are required under the terms of their parole. The parolees raise constitutional claims based on the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, and constitutional privacy interests. They also contend that the Parole Board's regulations are arbitrary and capricious.

         The Appellate Division upheld the Parole Board's use of polygraph examinations but directed the Parole Board to adopt revised regulations to explain more clearly that the machine-generated test results cannot be used as evidence to support independent criminal charges or to impose additional sanctions.

         For the reasons set forth in this opinion, we affirm but modify the Appellate Division's opinion. We uphold the Parole Board's use of polygraph testing with the same limitations as the Appellate Division, but add that the Parole Board's regulations must be further supplemented to buttress the parolees' Fifth Amendment right against self-incrimination.

         I.

         A.

         The parolees' circumstances are substantially the same. All have been convicted of a sexual offense, have completed their respective prison terms, and are now being monitored by the Parole Board as offenders subject to either PSL or its statutory predecessor, CSL. See N.J.S.A. 2C:43-6.4. As part of the Parole Board's monitoring, the parolees were each required to submit to a polygraph examination to monitor compliance with the conditions of parole.

         After the Parole Board notified the parolees that they were subject to polygraph examination, the parolees each objected to polygraph testing. In their administrative appeals, the parolees raised constitutional claims and generally contended that the Parole Board's regulations were arbitrary and capricious.

         The Parole Board rejected each of the parolees' administrative appeals. In dismissing the parolees' Fifth Amendment claims, the Parole Board reasoned that polygraph tests do not require parolees to provide identifying information about any unreported victims or to incriminate themselves. Regarding the parolees' Sixth Amendment claims, the Parole Board concluded that the right to counsel does not attach to a polygraph examination because it is a routine interview where the officer is merely determining the level of compliance with the terms of parole.

         The Parole Board also concluded that administration of polygraph examinations was not contrary to the parolees' right to privacy because polygraph examinations are necessary for risk management and treatment and because examination results are not disclosed to the public. Finally, the Parole ...


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