RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5435-10T2 A-1459-11T2 A-2138-11T3 A-2448-11T2 A-3256-11T2
J.B., APPROVED FOR PUBLICATION Appellant, November 26, 2013 v. APPELLATE DIVISION NEW JERSEY STATE PAROLE BOARD,
Respondent. ________________________________
L.A.,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent. _______________________________
B.M.,
Respondent. _______________________________ L.A.,
W.M.,
Argued October 29, 2013 - Decided November 26, 2013
Before Judges Sabatino, Hayden, and Rothstadt.
On appeal from the New Jersey State Parole Board.
Joseph S. Murphy argued the cause for appellants.
Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel and on the briefs; Lisa A. Puglisi, Assistant Attorney General, of counsel in A-2448-11T2; Mr. Josephson, on the briefs).
The opinion of the court was delivered by
SABATINO, J.A.D.
2 A-1459-11T2 Appellants J.B., L.A., B.M., and W.M. are individuals who
have been convicted of sexual offenses, have completed their
respective prison terms, and are now being monitored by
respondent New Jersey State Parole Board (the "Parole Board") as
offenders who are subject to either parole supervision for life
("PSL") or its statutory predecessor, community supervision for
life ("CSL"). N.J.S.A. 2C:43-6.4. Represented by the same
attorney, appellants challenge the constitutionality of certain
terms of supervision the Parole Board has imposed upon them.
Similar conditions have been imposed on other offenders subject
to CSL or PSL, although appellants have not filed a class
action.
The terms of supervision mainly being challenged in these
related appeals1 are (1) the Parole Board's restrictions on
appellants' access to social media or other comparable web sites
on the Internet; and (2) the Parole Board's authority to compel
them to submit to periodic polygraph examinations. One of the
appellants, L.A., also contests the Parole Board's imposition
upon him of a Halloween curfew and an electronic monitoring
condition.
1 The five appeals (two of which were filed by L.A.) were calendared back-to-back, and we consolidate them for purposes of this opinion.
3 A-1459-11T2 For the reasons that follow, we reject appellants' facial
challenges to the Internet access restrictions, subject to their
right to bring future "as-applied" challenges should they avail
themselves of the Parole Board's procedures for requesting
specific permission for more expanded Internet access and are
then denied such permission.
We do not decide at this time the merits of appellants'
constitutional attack upon the polygraph requirements. Instead,
we refer that subject matter to the trial court for supplemental
proceedings, pursuant to Rule 2:5-5(b), for the development of
an appropriate record, including scientific or other expert
proofs, and for fact-finding. Such proofs and fact-finding
shall focus upon the alleged therapeutic, rehabilitative, and
risk management benefits of polygraph testing when it is
conducted within the specific context of post-release oversight
of sex offenders.
Lastly, we uphold the Parole Board's actions concerning the
Halloween curfew, and dismiss as moot the claims concerning
L.A.'s electronic monitoring, which has ended.
I.
The circumstances of each appellant are substantially the
same. Each has been convicted of a sexual offense, has served
his sentence, and is now under supervision by the Parole Board.
4 A-1459-11T2 Each objected to certain restrictions the Parole Board imposed
upon him, arguing that those restrictions violated his
constitutional rights. And, in each instance, the Parole Board
has denied the offender's constitutional claims in a written
final agency decision without conducting a plenary evidentiary
hearing.
B.M.
B.M. pled guilty in March 1988 to one count of second-
degree sexual assault upon his daughter, N.J.S.A. 2C:14-2b. He
was sentenced to a four-year prison term and ordered to comply
with post-release registration and notification requirements
pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -6 and N.J.S.A.
2C:7-6 to -11. His sentence was amended to include a CSL term
effective upon his release, pursuant to the Violent Predator
Incapacitation Act of 1994, N.J.S.A. 2C:43-6.4.
B.M. was released from prison in March 2001. At that time,
he received a notice from the Parole Board enumerating the
specific conditions being imposed upon him as a CSL parolee.
B.M. signed an acknowledgement of those conditions. At some
point following his release, B.M. obtained employment as an
environmental consultant. His work has frequently involved
travel outside of New Jersey.
5 A-1459-11T2 In July 2009, the Parole Board asked B.M. to submit to a
polygraph examination. The request was based on the Parole
Board's asserted need to monitor B.M.'s compliance with the
conditions of his CSL supervision while on his out-of-state
trips. B.M. objected to the polygraph testing, claiming that it
violated his constitutional rights. The Parole Board advised
B.M. that he would no longer be allowed to travel out-of-state
if he refused to take the polygraph, despite the fact that the
Parole Board had previously approved his out-of-state travel
since 2003. The Parole Board also advised B.M. that he would
not be allowed to use a computer to access social networking
sites without the approval of a parole supervisor.
B.M. filed an administrative appeal of the polygraph and
Internet restrictions, which the Parole Board denied in November
2009. He then appealed that ruling to this court. While that
initial appeal was pending, B.M. applied for an emergent stay of
the restrictions. After the Supreme Court issued an order
directing this court to consider the merits of that emergent
application, we granted a stay of the Parole Board's
restrictions on B.M.'s interstate travel, pending the appeal.
On June 30, 2010, we issued an unpublished opinion in
B.M.'s first appeal, directing the Parole Board to
administratively adopt regulations that more fully addressed,
6 A-1459-11T2 after public notice and comment, the standards, conditions, and
procedures governing the Parole Board's use of polygraph testing
and Internet access restrictions. B.M. v. N.J. State Parole
Bd., No. A-2599-09 (App. Div. June 30, 2010); see also
Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984)
(requiring administrative rulemaking for the promulgation of an
agency's general standards and procedures). As part of that
decision, we directed the Parole Board to continue to allow B.M.
to travel out-of-state for business purposes unless "independent
grounds" to restrict such travel arose. B.M. v. N.J. State
Parole Bd., supra, slip op. at 7. Our opinion did not reach the
merits of B.M.'s constitutional challenges, in anticipation that
the forthcoming regulations might bear on these constitutional
arguments. Id. at 6-8.
Subsequently, as discussed in Parts II and III of this
opinion, infra, the Parole Board adopted regulations detailing
the Internet usage restrictions for PSL and CSL offenders, as
well as supplemental regulations about the polygraph testing of
such individuals. B.M. then filed his present second appeal (A-
2138-11) reiterating his constitutional objections to both the
polygraph testing and Internet restrictions.
7 A-1459-11T2 J.B.
In April 2002, J.B. pled guilty to one count of endangering
the welfare of a child, N.J.S.A. 2C:24-4a, his stepson. He was
sentenced to a three-year custodial term and ordered to comply
with Megan's Law, N.J.S.A. 2C:7-1 to -23. J.B. was also ordered
to comply with CSL monitoring upon his release, N.J.S.A. 2C:43-
6.4.
J.B. was released after completing his sentence,2 and in
February 2008, the Parole Board notified him of the polygraph
Thereafter, in September 2010, the Parole Board required
J.B. to submit to a polygraph examination to monitor his
compliance with CSL conditions. Like B.M., J.B. objected to the
polygraph testing, contending that it violated his
constitutional protections. He filed an administrative appeal,
which the Parole Board rejected in a May 25, 2011 final agency
decision. J.B. then filed this present appeal (A-5435-10).
W.M.
W.M. pled guilty in April 1996 to five counts of second-
degree aggravated sexual assault, N.J.S.A. 2C:14-2b, for
molesting five young female music students in their homes. He
was sentenced to concurrent five-year terms at the Adult
2 The record does not indicate J.B.'s release date.
8 A-1459-11T2 Diagnostic Center at Avenel, and was required to comply with
certain provisions in Megan's Law. W.M. was released from
custody in August 1999. His judgment of conviction was amended
in 2000 to include a CSL provision.
In January 2008, the Parole Board notified W.M. that he was
prohibited from accessing social networking websites as a
condition of his supervision. Additionally, in October 2008,
W.M. was advised that he was subject to polygraph testing. In
September 2011, W.M. was referred for a polygraph examination,
which he declined to take.
Invoking similar constitutional claims as the other
appellants, W.M. pursued an administrative appeal contesting the
polygraph and Internet access restrictions. On January 25,
2012, the Parole Board denied W.M.'s request for relief. He
then filed his present appeal (A-3256-11). In June 2012, the
Supreme Court granted W.M. a stay of the polygraph examination
and Internet restriction pending appeal.
L.A.
In May 2007, L.A. pled guilty to second-degree attempted
sexual assault of a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-
2c(4), after having sexually explicit online conversations with
an undercover police officer posing as a boy and then later
9 A-1459-11T2 attempting to meet with the putative youth at a mall. At the
time of this offense in 2005, L.A. was in his sixties.
L.A. was sentenced to a three-year prison term. He was
also made to comply with PSL conditions, N.J.A.C. 10A:71-6.12,3
as well as other Megan's Law requirements. L.A. thereafter
completed his prison sentence and was released.4
In September 2011, L.A. was told by his parole officer that
he had to take a polygraph examination. L.A. objected to the
testing on the grounds of improper notice and constitutional
defects. He filed an administrative challenge to the testing,
which the Parole Board rejected in an October 26, 2011 final
agency decision. L.A. then appealed that determination to this
court (A-1459-11).
In his second appeal that is also before us (A-2448-11),
L.A. challenges the Parole Board's imposition of both a
Halloween curfew and an electronic monitoring condition. The
Halloween curfew, which the Parole Board imposed on L.A. in
3 The CSL statute was amended in 2003, effective January 14, 2004, to change "community supervision for life" (i.e., CSL) to "parole supervision for life" (i.e., PSL). G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 401 n.4 (App. Div. 2008), aff'd, 199 N.J. 135 (2009); see also L. 2003, c. 267, § 1. The revisions did not change the substance of the law. Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:43-6.4 (2013). 4 The record does not indicate L.A.'s release date.
10 A-1459-11T2 October 2011, required that he remain in his home from 2:00 p.m.
to midnight on that holiday. L.A. requested permission from the
Parole Board to attend two business meetings on Halloween, but
his parole officer only granted him permission to attend the day
meeting and not the evening meeting. Nevertheless, in violation
of the curfew, L.A. went to a shopping mall where he was
observed by his parole officer and then sent home.
As a sanction for L.A.'s non-compliance with the Halloween
curfew, the Parole Board required him to participate in
electronic monitoring. The electronic monitoring included a
curfew of twenty hours per day for up to 180 days.
L.A. contested both the Halloween curfew and the electronic
monitoring conditions before the Parole Board. In a November
30, 2011 final agency decision, the Parole Board upheld both
conditions. L.A. has since completed the electronic monitoring.
Nevertheless, he continues to press on appeal his challenges to
the Halloween curfew and the electronic monitoring requirement.
II.
We first consider B.M.'s and W.M.'s arguments that the
Parole Board had violated, and continues to violate, their
constitutional rights by denying them access to social media
websites on the Internet. In particular, appellants contend
that these Internet restrictions infringe their rights of free
11 A-1459-11T2 speech and association under the First Amendment of the United
States Constitution, their rights under the Due Process Clause,
and their corresponding rights under the New Jersey
Constitution. Appellants further claim that the Internet
restrictions were imposed without statutory authorization and
compliance with the Administrative Procedure Act ("APA"),
N.J.S.A. 52:14B-4. For the reasons that follow, we reject these
facial challenges.
A.
Appellants' constitutional claims must be examined in the
context of their distinctive status as sex offenders who have
been released into the community after serving their custodial
sentences, and who are now under the Parole Board's continued
supervision through CSL or PSL.
"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.), certif. granted, 182
N.J. 140 (2004), appeal dismissed, 187 N.J. 487 (2006)). As the
Supreme Court has recognized, unfortunately, "the relative
recidivism rate of sex offenders is high compared to other
offenders; treatment success of sex offenders exhibiting
12 A-1459-11T2 repetitive and compulsive characteristics is low; and the time
span between the initial offense and re-offense can be long."
Doe v. Poritz, 142 N.J. 1, 15 n.1 (1995).
Given these special characteristics of sex offenders, the
Legislature established CSL in 1994 as part of the Violent
Predator Incapacitation Act, N.J.S.A. 2C:43-6.4. The statute is
one component of a series of laws that are collectively referred
to as Megan's Law, N.J.S.A. 2C:7-1 to -23. See also L. 1994, c.
130. Persons who have been convicted between 1994 and 2004 of
certain sexual offenses enumerated within N.J.S.A. 2C:43-6.4(a)
must serve, in addition to any existing sentence, "a special
sentence" of "community supervision for life," and those
convicted after that time are sentenced to "parole supervision
for life." N.J.S.A. 2C:43-6.4(a); see also L. 2003, c. 267, §
1. This CSL or PSL term follows immediately after the parolee's
release from incarceration, if applicable, and includes
specified conditions by which he or she must abide. N.J.S.A.
2C:43-6.4(b). The stated purpose of these conditions is "to
protect the public and foster rehabilitation." Ibid. Such
offenders are supervised by the Division of Parole of the State
Parole Board "as if on parole" and may be subject to "conditions
appropriate to protect the public and foster rehabilitation."
N.J.S.A. 2C:43-6.4(b); N.J.A.C. 10A:71-6.11.
13 A-1459-11T2 As the United States Supreme Court has recognized,
convicted persons whether they have been found guilty of
sexual offenses or other crimes are generally subject to a
constitutionally-permissible degree of continued governmental
oversight and diminished personal autonomy when they are on
parole or some other form of post-release supervision. "Rather
than being an ad hoc exercise of clemency, parole is an
established variation on imprisonment of convicted criminals."
Morrissey v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 2598, 33
L. Ed. 2d 484, 492 (1972). "Its purpose is to help individuals
reintegrate into society as constructive individuals as soon as
they are able without being confined for the full term of the
sentence imposed." Ibid. To accomplish this objective,
parolees are typically subjected to "conditions [that] restrict
their activities substantially beyond the ordinary restrictions
imposed by law on an individual citizen." Id. at 478, 92 S. Ct.
at 2598, 33 L. Ed. 2d at 492.
For instance, parolees must commonly "seek permission from
their parole officers before engaging in specified activities,
such as changing employment or living quarters, marrying,
acquiring or operating a motor vehicle, traveling outside the
community, and incurring substantial indebtedness." Ibid.
Parolees must also regularly report to their assigned parole
14 A-1459-11T2 officer. Id. at 478, 92 S. Ct. at 2598-99, 33 L. Ed. 2d at 492.
Subject to procedural fairness and other recognized limitations,
the State has a strong interest in assuring that parolees adhere
to the conditions of their parole. Id. at 480-84, 92 S. Ct. at
2600-02, 33 L. Ed. 2d at 493-97. Where it is advised, the
revocation of parole "deprives an individual, not of the
absolute liberty to which every citizen is entitled, but only of
the conditional liberty [that is] properly dependent on
observance of special parole restrictions." Id. at 480, 92 S.
Ct. at 2600, 33 L. Ed. 2d at 494.
The New Jersey Supreme Court in Jamgochian, supra, 196 N.J.
at 222, extended these general principles of limited liberties
in the parole context to sexual offenders sentenced to post-
release CSL terms. In that case, the Court declared that a
convicted sex offender under CSL could be made subject to
restrictions on his liberty, such as an evening curfew, provided
that the Parole Board afforded him with constitutional due
process protections of notice and an opportunity to object to
the curfew restriction. Ibid. Such a person's special status
as a CSL offender did not entitle him to the "full panoply of
rights" available to a citizen in a criminal trial. Id. at 242.
That said, the Court explained in Jamgochian that such an
individual was nonetheless constitutionally protected from
15 A-1459-11T2 "arbitrary government action." Id. at 241-42. The Court
cautioned that, in this context, due process and procedural
fairness must be applied flexibly, for the Constitution does not
"mandate a regime that will make it impractical to impose a
necessary curfew provision to protect the public or rehabilitate
the offender." Id. at 246. Moreover, "[d]iscretion must be
invested in the Parole Board, which has the agency expertise and
authority to implement a scheme that can address the unique
circumstances of each case." Id. at 250. Even so, on the
record before it, the Court in Jamgochian concluded that the
Parole Board had deprived the appellant of a fair opportunity to
contest both (1) the Parole Board's claim that he engaged in
inappropriate conduct that signaled a prelude to recidivism, and
(2) the Parole Board's rationale underlying its decision to
impose a curfew. The Court prospectively directed that such
procedural safeguards must be afforded in future cases to sex
offenders on CSL. Id. at 250-51.
We also must be mindful of the importance of an
individual's freedom of speech and association under the First
Amendment of the United States Constitution and Article I,
Paragraphs 6 and 18 of the New Jersey Constitution. See Tinker
v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969) (delineating First Amendment
16 A-1459-11T2 principles); State v. Schmid, 84 N.J. 535 (1980) (delineating
cognate principles under the State Constitution). We are
particularly mindful that our State Constitution's free speech
provisions have, at times, been interpreted more broadly than
their federal counterparts. See, e.g., N.J. Coalition Against
War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326
(1994); Schmid, supra, 84 N.J. at 535. "[T]he State
Constitution furnishes to individuals the complementary freedoms
of speech and assembly and protects the reasonable exercise of
those rights." Schmid, supra, 84 N.J. at 560. As such, the
State Constitution "serves to thwart inhibitory actions which
unreasonably frustrate, infringe, or obstruct the expressional
and associational rights of individuals." Ibid.
B.
Against this backdrop of competing State and individual
interests, we examine the Internet restrictions that appellants
B.M. and W.M. have challenged in this case.
In 2007, the Legislature amended N.J.S.A. 2C:43-6.4 to add
a provision limiting Internet access for sexual offenders
serving a CSL sentence, effective February 25, 2008. N.J.S.A.
2C:43-6.4(f); see also L. 2007, c. 219. The statute specified
that these conditions could include prohibiting the use of a
computer without prior written approval, requiring the offender
17 A-1459-11T2 to submit to periodic unannounced examinations of his or her
computer, requiring the offender to install a monitoring device
on his or her computer, and requiring the offender to "disclose
all passwords used by the person to access any data,
information, image, program, signal or file." N.J.S.A. 2C:43-
6.4(f)(1) to (5).
In our 2010 unpublished opinion in B.M., supra, we noted
that, in addition to the absence of adequate regulations
governing the Parole Board's administration of polygraph
examinations, the agency also had not adopted regulations
specifically addressing Internet access restrictions. B.M. v.
N.J. State Parole Bd., supra, slip op. at 4-6. Among other
things, we observed that there did not appear to be any general
internal policies or procedures governing those restrictions, or
defining key terms such as "social networking" site. Ibid.
Consequently, on September 29, 2010, the Parole Board
adopted new regulations detailing restrictions it could impose
on an offender's Internet usage. N.J.A.C. 10A:71-6.11(b)(22);
42 N.J.R. 2960(a). It did not receive any public comments when
these new rules were proposed. 42 N.J.R. 2960(a). The new
conditions clearly specified that an offender may be subject to
Internet restrictions "to access any social networking service
or chat room in the offender's home or with any other name for
18 A-1459-11T2 any reason unless expressly authorized by the district parole
supervisor." N.J.A.C. 10A:71-6.11(b)(22).
On January 3, 2012, the Parole Board issued proposals for
further amendments to these conditions, "provid[ing] for a
definition of social networking service, Internet website or
application, chat room and peer-to-peer network." 44 N.J.R.
30(a). In response to that proposal, the Chief Executive
Officer of the New Jersey Association of Mental Health and
Addiction Agencies, Debra L. Wentz, Ph.D., submitted a comment
raising a concern that the proposed restrictions may undesirably
impede an offender's rehabilitation efforts. Her comment
pointed out that "social media has expanded beyond simply
'socializing' and is becoming an important tool for people in
early recovery to network, access emotional support, and gain
access to needed services." 44 N.J.R. 1530(a). The Parole
Board replied that if a treatment provider believed that
accessing social media was conducive to the offender's recovery,
"there already exists a mechanism for the matter to be
reviewed." Ibid. N.J.A.C. 10A:71-6.6(b), it elaborated,
permitted an offender to apply to the Parole Board for a
modification of a condition of supervision. Ibid.
Consequently, on March 28, 2012, the Board adopted the
19 A-1459-11T2 additional proposals on Internet restrictions without
modification.
B.M. and W.M. now challenge these Internet restrictions.
They maintain that the restrictions are overbroad and unduly
deprive them access to information, news, business
opportunities, and other benign avenues of expression on the
Internet. They contend that the Internet has become an
increasingly pervasive and vital part of modern life, and that
this inability to participate in such everyday communications
represents an unconstitutional infringement upon their
liberties. Appellants further contend that the Parole Board's
regulations do not afford them adequate notice and procedural
protections, lest they visit an unauthorized Internet site in
error and potentially risk further sanctions and losses of
liberty. Lastly, they contend that the Internet regulations do
not comport with the procedural standards of the APA.
The Parole Board, in turn, asserts that the Internet
restrictions are reasonable measures to assure that sexual
offenders serving CSL sentences do not engage in inappropriate
interactions with youths or other potential victims, and that,
accordingly, public safety justifies such restrictions. It
further points out that the regulations contain an explicit
process in N.J.A.C. 10A:1-6.11 for an offender serving a PSL or
20 A-1459-11T2 CSL sentence to seek permission from a parole official to gain
access to a particular site for work or other reasonable
purpose. The Parole Board contends that offenders must exhaust
such administrative remedies before requesting this court to
strike down the restriction on its face.
C.
The manifest objective of the Internet restrictions in the
authorizing statute and the Parole Board's regulations is not to
eliminate the ability of released offenders on PSL or CSL to
access the Internet in its entirety. Instead, the provisions
are legitimately aimed at restricting such offenders from
participating in unwholesome interactive discussions on the
Internet with children or strangers who might fall prey to their
potential recidivist behavior.
We recognize that websites such as Facebook and LinkedIn
have developed a variety of uses apart from interactive
communications with third parties. Even so, the Parole Board
has reasonably attempted to draw the line of permitted access in
a fair manner that balances the important public safety
interests at stake with the offenders' interests in free
expression and association. As the Deputy Attorney General
acknowledged at oral argument, it is not the Parole Board's
intention that these provisions bar appellants from having
21 A-1459-11T2 Internet access to news, entertainment, and commercial
transactions.
Significantly, courts in other jurisdictions have upheld
comparable Internet usage restrictions for released sex
offenders, often subject to the directives of their parole
officers. For example, the United States Court of Appeals for
the District of Columbia Circuit upheld a tailored Internet
usage restriction for the probationer there, a convicted sex
offender with a history of soliciting sex from minors and
trading child pornography. United States v. Love, 593 F.3d 1,
11-13 (D.C. Cir. 2010). Like appellants here, the probationer
in Love argued that the Internet usage restriction was
excessive, "in light of the near ubiquity of the Internet in
everyday life." Id. at 11. The court rejected that claim,
deferring to the probation board's determination that the
restriction was appropriate in light of the nature of the
appellant's crimes. Id. at 11-12. Although recognizing that
the Internet restriction would "no doubt" substantially affect
the appellant's day-to-day activities, the court noted, however,
that it would also appropriately prevent him from using the
Internet to trade child pornography. Ibid. All of these
factors must be considered together, the court explained, and in
22 A-1459-11T2 doing so, it held that the probation board's decision was
reasonable. Id. at 12-13.
In a similar vein in United States v. Crandon, 173 F.3d 122
(3d Cir. 1999), the Third Circuit Court of Appeals upheld as
constitutional an Internet usage restriction as a condition of
the defendant's supervised release. There, the defendant had
used the Internet as a means to develop a sexual relationship
with a young girl over a period of several months. Id. at 127.
The defendant objected to the condition, arguing that it
unnecessarily infringed upon his liberty interests and bore no
logical relation to his offense. Ibid. The Court of Appeals
rejected this argument, noting the reasonableness of the
restriction in light of the defendant's sexual history. Ibid.
Finding no violation of the defendant's constitutional rights,
the court affirmed the Internet usage restriction. Ibid.5
5 The federal appellate case law on this subject is extensive, and most of the circuit courts of appeal have upheld comparable Internet restrictions. See, e.g., United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013) (upholding a condition requiring the defendant to receive prior approval from the court before "possess[ing], hav[ing] access to, or utiliz[ing] a computer or internet connection device"); United States v. Atias, 518 F. App'x 843, 846-47 (11th Cir. 2013) (upholding computer and Internet restrictions as a condition of supervised release where the defendant could still "petition the court for approval to use either a computer or the internet, and the restrictions were related to the 'horrific' and 'unthinkable' nature and circumstances of the offense, as well as the need for deterrence and public protection"); United States v. Deatherage, 682 F.3d (continued)
23 A-1459-11T2 (continued) 755, 764 (8th Cir. 2012) (finding that where the defendant received and possessed child pornography, a restriction on his ownership and use of computers or other similar devices was not unreasonable because the ban would be limited "to installing approved computer monitoring devices and consenting to unannounced examination of his computers and storage devices"); United States v. Accardi, 669 F.3d 340, 348 (D.C. Cir. 2012) (upholding a qualified ban on the defendant's ability to access the Internet after conviction for sex crimes); United States v. Balon, 384 F.3d 38, 43-46 (2d Cir. 2004) (upholding a condition of supervised release that required a defendant convicted of transporting child pornography through the use of a computer to provide the U.S. Probation Office with notification of any computers he would use during his supervision term); United States v. Granger, 117 F. App'x 247, 248-49 (4th Cir. 2004) (upholding a special condition of release for the defendant who had used his computer to transport and ship images of child pornography that prohibited him from possessing or using a computer that could connect to a network); United States v. Reardon, 349 F.3d 608, 620-22 (9th Cir. 2003) (upholding a restriction that required a convicted sex offender to receive prior approval from a probation officer before possessing or using a computer with access to any online service); United States v. Suggs, 50 F. App'x 208, 210-11 (6th Cir. 2002) (upholding a condition of supervised release in a fraud case that prohibited the defendant from having access to a personal computer); United States v. Walser, 275 F.3d 981, 987-88 (10th Cir. 2001) (upholding a restriction on Internet access because the defendant "is not completely banned from using the Internet," but rather "must obtain prior permission from the probation officer"). But see United States v. Goodwin, 717 F.3d 511, 523 (7th Cir. 2013) (vacating a special condition of release that required the defendant to install Internet monitoring software on his computers, submit to searches of his person, computer, and other property, and allow his computer to be removed for examinations because the court "fail[ed] to see how these broad restrictions are reasonably related to [the defendant's] offense, history, and personal characteristics"); United States v. Perazza-Mercado, 553 F.3d 65, 69-75 (1st Cir. 2009) (remanding the issue of a total ban on home Internet use as a condition of supervised release to the district court and suggesting that a more appropriate restriction be devised that "reconciles our concern that a convicted sex offender could use (continued)
24 A-1459-11T2 D.
Guided in part by the weight of authority from other
jurisdictions, we are satisfied that the Internet restrictions
adopted here by the Parole Board have been constitutionally
tailored to attempt to strike a fair balance. Hence, we reject
appellants' arguments to strike them down on their face. We
instead uphold the regulations as valid under both the First
Amendment and the New Jersey Constitution, subject to the right
of appellants or other offenders who are subject to a CSL or PSL
condition to pursue permission from a parole official to gain
access to a specified website for a benign purpose.
We do not presume in the abstract that the Parole Board and
individual parole officers will respond to such requests rigidly
or unfairly, or that it will ignore an offender's individual
circumstances. Instead, this procedural avenue should be
exhausted first, subject to the right of an offender to bring a
future as-applied constitutional challenge if necessary.
"Facial invalidation 'is, manifestly, strong medicine' that
'has been employed by the Court sparingly and only as a last
(continued) the internet to continue a pattern of inappropriate behavior towards minors with the potential of legitimate uses of the internet that might be crucial to that individual's rehabilitation").
25 A-1459-11T2 resort.'" Binkowski v. State, 322 N.J. Super. 359, 375-76 (App.
Div. 1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93
S. Ct. 2908, 2916-17, 37 L. Ed. 2d 830, 841-42 (1973)). In
keeping with such a cautious approach, "[e]ven in a First
Amendment case, federal courts are admonished not 'to anticipate
a question of constitutional law in advance of the necessity of
deciding it, . . . [or] to formulate a rule of constitutional
law broader than is required by the precise facts to which it is
to be applied.'" Id. at 373 (quoting Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 501, 105 S. Ct. 2794, 2801, 86 L.
Ed. 2d 394, 404 (1985)); see also Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 450, 128 S. Ct.
1184, 1191, 170 L. Ed. 2d 151, 161 (2008) ("Facial challenges
are disfavored for several reasons. Claims of facial invalidity
often rest on speculation. As a consequence, they raise the
risk of 'premature interpretation of statutes on the basis of
factually barebones records.'" (quoting Sabri v. United States,
541 U.S. 600, 609, 124 S. Ct. 1941, 1948, 158 L. Ed. 2d 891, 900
(2004))).
Thus, courts at times will sensibly decline to strike down
a law or regulation on its face, and instead reserve claims of
unconstitutionality for future as-applied litigation. See,
e.g., Doe v. Reed, ___ U.S. ___, 130 S. Ct. 2811, 177 L. Ed. 2d
26 A-1459-11T2 493 (2010) (holding that disclosure of the identity of persons
signing petitions in support of ballot referenda does not
facially violate the First Amendment, but leaving open the
possibility of an as-applied challenge if it could be shown that
such disclosure would expose those who had signed petitions to
harm); Washington State Grange, supra, 552 U.S. at 457-58, 128
S. Ct. at 1195, 170 L. Ed. 2d at 165 (declining to declare a new
election process facially invalid because the challengers'
arguments were based on "factual assumptions about voter
confusion," and noting that such a "factual determination must
await an as-applied challenge"). A similar approach is
warranted here.
We also reject appellants' claims that the Internet access
restrictions are procedurally flawed or do not comport with APA
standards. As we directed in B.M., supra, the regulations were
adopted through public notice and comment. In fact, none of the
present appellants or their common attorney presented any
objecting comments to the proposed Internet regulations before
their promulgation, although we recognize that they were not
obligated to do so.6 On an individual level, it is also
6 As a note of caution, however, we urge the Parole Board to be amenable to fine-tuning the Internet regulations as technology advances and the nomenclature and uses of cyberspace continue to evolve.
27 A-1459-11T2 procedurally significant that appellants received advance notice
that they would be subject to the Internet restrictions.
In addition, we find no violation of due process
principles, as the Internet restrictions are reasonably crafted
on their face to promote important State interests. See
Jamgochian, supra, 196 N.J. at 239-40 (explicating due process
principles under the Due Process Clause and Article I, Paragraph
1 of the New Jersey Constitution).
In sum, we hold the Internet restrictions to be
constitutional on their face, and that they do not otherwise
violate the law.
III., IV., V.
[At the direction of the court, the published version of this opinion omits Part III (which relates to the polygraph testing issue that has been referred for an evidentiary hearing), Part IV (which upholds the Halloween curfew), and Part V (which deems moot L.A.'s challenge to his previous electronic monitoring). See R. 1:36-3.]
VI.
For the reasons noted, we (1) affirm the Parole Board's
Internet restrictions, subject to potential as-applied
challenges after exemptions are sought; (2) refer the polygraph
issues for fact-finding; (3) uphold the Halloween curfew; and
(4) dismiss as moot L.A.'s challenge to electronic monitoring.
28 A-1459-11T2 Our jurisdiction is retained only as to the polygraph issues,
pursuant to the supplementation procedures under Rule 2:5-5(b)
that have been outlined in this opinion.
29 A-1459-11T2