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K.G. v. New Jersey State Parole Board

Superior Court of New Jersey, Appellate Division

January 24, 2019

K.G., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent. C.C., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent. J.L., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent. D.C., Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent.

          Argued September 24, 2018

          On appeal from the New Jersey State Parole Board.

          Michael C. Woyce argued the cause for appellants (Murphy & Woyce, attorneys; Michael C. Woyce, on the briefs).

          Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel in A-0042-16 and A-4339-16; Melissa H. Raksa, Assistant Attorney General, of counsel in A-4343-16 and A-4797-16; Gregory R. Bueno, Deputy Attorney General, on the briefs in A-0042-16 and A-4797-16; Erica R. Heyer, Deputy Attorney General, on the brief in A-4339-16; Christopher C. Josephson, on the brief in A-4343-16).

          Before Judge Sabatino, Sumners, and Mitterhoff.

          OPINION

          MITTERHOFF, J.S.C. (temporarily assigned).

         Appellants K.G., C.C., J.L., and D.C. are convicted sex offenders who are monitored by respondent New Jersey State Parole Board (the "Board") as offenders who are subject to parole supervision for life ("PSL") under N.J.S.A. 2C:43-6.4. Each appellant challenges certain conditions of PSL that the Board has imposed upon them. Most of the challenged conditions involve restrictions on appellants' Internet use. The instant appeals follow in the wake of the New Jersey Supreme Court's decision in J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017), which addressed the parameters of the Board's authority to impose conditions restricting Internet access. The four appeals were calendared back-to-back, and we consolidate them for the purposes of this opinion.

         For the reasons that follow, we affirm in part, reverse in part, and remand in part. In particular, we reach the following major legal conclusions: (1) the Board's imposition of Internet monitoring conditions upon PSL offenders, including the use of monitoring software, mandatory password disclosure, and unannounced device inspections, does not facially violate the constitutional protections against unreasonable searches or the constitutional rights to privacy; (2) the Board's use of the terms "Internet-capable device," "social networking service," "frequenting establishments whose primary purpose is the sale of alcohol," and "sexually-oriented websites, material, information or data" does not violate due process under the void for vagueness doctrine; (3) all conditions restricting Internet access, including monitoring conditions, should be reasonably tailored to the circumstances of the individual offender, "taking into account such factors as the underlying offense and any prior criminal history, whether the Internet was used as a tool to perpetrate the offense, the rehabilitative needs of the offender, and the imperative of public safety[, ]" J.I., 228 N.J. at 224; and (4) in the administrative appeals process, PSL offenders are not entitled to discovery and are only entitled to a hearing when warranted based on "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." Id. at 233.

         Table of Contents

         I. (Background) .............................................................................................. 5

         A. (Background on PSL) ............................................................................ 5

         B. (Statutes and Regulations on Internet-Access Conditions) ................... 11

         II. (Factual and Procedural Background) ....................................................... 18

         K.G .......................................................................................................... 18

         C.C. . ........................................................................................................ 21

         J.L. . ......................................................................................................... 23

         D.C. . ........................................................................................................ 27

         III. (Legal Discussion) .................................................................................. 30

         A. (Constitutional Challenges to Monitoring Conditions) ......................... 31

         B. (As-Applied Challenges) ..................................................................... 36

         K.G. . ................................................................................................... 36

         Internet-Access Conditions ............................................................. 36

         C.C. . ................................................................................................... 40

         Internet-Access Conditions ............................................................. 40

         Procedural Due Process .................................................................. 41

         J.L ....................................................................................................... 43

         Internet-Access Conditions ............................................................. 44

         Pornography Condition ................................................................... 45

         Alcohol Condition .......................................................................... 47

         Void for Vagueness ........................................................................ 48

         Procedural Due Process .................................................................. 50

         D.C. . ................................................................................................... 51

         Internet-Access Conditions ............................................................. 52

         C. (Summary of Conclusions) .................................................................. 53

         I.

         (Background)

         A.

         (Background on PSL)

         We begin with a discussion of the PSL statute and of the constitutional limits on the Board's ability to impose conditions of PSL restricting Internet access. "Community supervision for life was 'designed to protect the public from recidivism by defendants convicted of serious sexual offenses.'" Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 237-38 (2008) (quoting Sanchez v. N.J. State Parole Bd., 368 N.J.Super. 181, 184 (App. Div. 2004), certif. granted, 182 N.J. 140 (2004), appeal dismissed, 187 N.J. 487 (2006)).[1]Individuals who have been convicted of certain sexual offenses enumerated in N.J.S.A. 2C:43-6.4(a) must serve, in addition to any existing sentence, a special sentence of parole supervision for life commencing upon the offender's release from incarceration. N.J.S.A. 2C:43-6.4(a) and (b).

         PSL offenders remain in the legal custody of the Commissioner of the Department of Corrections, are supervised by the Division of Parole, and are "subject to conditions appropriate to protect the public and foster rehabilitation." N.J.S.A. 2C:43-6.4(b). These conditions include general conditions that are imposed upon all PSL offenders and special conditions imposed upon individual PSL offenders that are "deemed reasonable in order to reduce the likelihood of recurrence of criminal or delinquent behavior." N.J.S.A. 30:4-123.59(b)(1); see also N.J.A.C. 10A:71-6.12(d) (listing general conditions); N.J.A.C. 10A:71-6.12(n) ("Additional special conditions may be imposed by the District Parole Supervisor . . . when it is the opinion that such conditions would reduce the likelihood of recurrence of criminal behavior."). A violation of a PSL condition may be prosecuted as a third-degree crime, N.J.S.A. 2C:43-6.4(d), or treated as a parole violation, N.J.S.A. 2C:43-6.4(b). Additionally, an offender who violates a PSL condition may be subjected to additional special conditions. See N.J.S.A. 30:4-123.60(a).

         Appellants maintain that the restrictions imposed upon them cannot be sustained in light of the Supreme Court's decision in J.I. In J.I., a parolee subject to community supervision for life ("CSL") challenged a special condition that barred him from using a computer or Internet-capable device unless authorized by the District Parole Supervisor. Id. at 210-11. After J.I.'s release from confinement in October 2009, the parole authorities discovered that J.I. had accessed multiple websites depicting nude minors in January 2010. Id. at 212. The parole authorities also arrested J.I. for possessing and using a cell phone with Internet capability in October 2010. Ibid. Thereafter, the Board found that J.I. had violated conditions of CSL and returned him to confinement at the Adult Diagnostic and Treatment Center. Ibid.

         When J.I. was released from confinement in October 2012, he was required to adhere to a general condition of supervision that prohibited him from accessing social-networking websites. Id. at 213. As of December 2013, J.I. had complied with this condition. Ibid. Nonetheless, in response to J.I.'s request to modify the social-networking condition to allow J.I. to access LinkedIn, the District Parole Supervisor imposed a more stringent Internet restriction barring "J.I. from accessing the Internet for any purpose other than employment purposes, subject to his installing monitoring software on his computer." Ibid. The District Parole Supervisor justified this restriction based on J.I.'s previous violations of conditions of CSL in January and October 2010. Ibid.

         J.I. violated this special condition by visiting seemingly benign, non-work-related websites. Id. at 214. In a March 2017 meeting, the District Parole Supervisor stated that J.I. was only permitted to use a computer or access the Internet with advance approval from the District Parole Supervisor and only for work-related purposes. Ibid. On administrative appeal, the Board denied J.I's request for an evidentiary hearing and affirmed this near-total Internet ban, based on J.I.'s "willful disregard of the prohibition against accessing non-work-related websites." Id. at 215.

         The Supreme Court held that the Internet-use conditions imposed upon J.I. could not automatically be sustained. Id. at 230. Initially, the Court noted that "[t]o read our statutory scheme as allowing greater restrictions on the liberty of CSL offenders than are necessary would needlessly raise questions about its constitutionality." Id. at 227. In so holding, the Court cited various federal court cases limiting Internet restrictions on parolees. See id. at 226-29; United States v. Albertson, 645 F.3d 191, 199 (3d Cir. 2011) (invalidating condition that required authorization for all Internet use in a child pornography case, because the offender did not use the Internet to contact any victims); United States v. Thielemann, 575 F.3d 265, 277-78 (3d Cir. 2009) (upholding a ten-year total Internet ban where the offender encouraged a friend in an online chatroom to sexually abuse a minor on a webcam); United States v. Crandon, 173 F.3d 122, 127-28 (3d Cir. 1999) (upholding a three-year total Internet ban where the offender used the Internet to solicit sex from a minor). The Court "agree[d] 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." J.I., 228 N.J. at 211.

         Accordingly, the Court instructed that "Internet conditions should be tailored to the individual CSL offender, taking into account such factors as the underlying offense and any prior criminal history, whether the Internet was used as a tool to perpetrate the offense, the rehabilitative needs of the offender, and the imperative of public safety." Id. at 224. The Court held on administrative law grounds that the restriction "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." Id. at 230. The Court underscored that J.I. had not used the Internet in committing the underlying offenses and that J.I. had been compliant with supervision for over one year prior to the imposition of the condition. Id. at 229-30. The Court also found that the Board had failed to explain why other less restrictive Internet-access restrictions available under the PSL statute were not acceptable alternatives to advance the public safety and the offender's rehabilitation. Ibid.

         The Supreme Court further held that the imposition of conditions that restrict Internet use implicates a liberty interest and requires minimal due process. See id. at 231-34. The Court found that "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." Id. at 233. The Court further noted that "[i]n the case of a Board panel's review of a District Parole Supervisor's imposition of stringent Internet restrictions, as here, due process will be satisfied by allowing the CSL offender 'the opportunity to respond by letter with supporting attachments, such as certifications or affidavits.'" Ibid. (quoting Jamgochian, 196 N.J. at 247). In the factual circumstances of J.I.'s case, however, the Court held that J.I. was entitled to a hearing before the full Board. Id. at 234. In so holding, the Court emphasized "circumstances includ[ing] the fact that the parole authorities imposed more restrictive Internet conditions-amounting to a near-total ban- after J.I. had been compliant with his CSL conditions for thirteen months and that J.I.'s underlying conviction was unrelated to the Internet." Ibid.

         Thus, in J.I., the Court provided specific factors that the Board must consider in deciding whether Internet-access conditions imposed upon PSL offenders accord with administrative and constitutional protections. In resolving the cases before us, therefore, we must apply the precepts established by the Court in J.I.

         B. (Statutes and Regulations on Internet-Access Conditions)

         Before turning to the factual circumstances of each of the four appellants, we provide an overview of the statutory and regulatory framework governing the Board's ability to impose conditions of supervision that restrict Internet use. N.J.S.A. 2C:43-6.4(f) provides that the Board may impose the following restrictions on Internet access:

(1) Prohibit the person from accessing or using a computer or any other device with Internet capability without the prior written approval of the court except the person may use a computer or any other device with Internet capability in connection with that person's employment or search for employment with the prior approval of the person's parole officer;
(2) Require the person to submit to periodic unannounced examinations of the person's computer or any other device with Internet capability by a parole officer, law enforcement officer or assigned computer or information technology specialist, including the retrieval and copying of all data from the computer or device and any internal or external peripherals and removal of such information, equipment or device to conduct a more thorough inspection;
(3) Require the person to submit to the installation on the person's computer or device with Internet capability, at the person's expense, one or more hardware or software systems to monitor the Internet use;
(4) Require the person to submit to any other appropriate restrictions concerning the person's use or access of a computer or any other device with Internet capability; and
(5) Require the person to disclose all passwords used by the person to access any data, information, image, program, signal or file on the person's computer or any other device with Internet capability.
[N.J.S.A. 2C:43-6.4(f)(1) to (5).]

See also N.J.S.A. 30:4-123.59(b)(2) (listing identical provisions). Additionally, a general condition requires PSL offenders to "[r]efrain from using any computer and/or device to create any social networking profile or to access any social networking service or chat room in the offender's name or any other name for any reason unless expressly authorized by the District Parole Supervisor." N.J.A.C. 10A:71-6.12(d)(25).[2]

         While these appeals were pending, the Board proposed and adopted new regulations regarding the imposition of special conditions restricting Internet access in response to the Court's decision in J.I. N.J.A.C. 10A:72-14.1 to 14.4; 49 N.J.R. 3408(a) (Oct. 16, 2017) (proposed); 50 N.J.R. 1154(a) (Apr. 16, 2018) (adopted). The Board sought to "codif[y] the procedures for the imposition of a special condition prohibiting a community or parole supervision for life offender from accessing the Internet, including the criteria, procedure, and review process." 49 N.J.R. 3408(a). The Board adopted the regulations with minor amendments on April 16, 2018. 50 N.J.R. 1154(a).[3]

         The regulations adopted after J.I. establish new criteria and procedures for the imposition of a special condition restricting Internet access. The adopted regulations "appl[y] to the imposition of a special condition prohibiting an offender access to the Internet[.]" N.J.A.C. 10A:72-14.1(a). Under the ...


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