SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Hakum Brown; State v. Rodney Brown (A-39-19) (083353)
Argued October 14, 2020 -- Decided January 25, 2021
LaVECCHIA, J., writing for the Court.
These consolidated appeals present a common legal issue: whether state or federal constitutional ex post facto prohibitions permit defendants to be charged with and convicted of the enhanced third-degree offense of failure to comply with sex offender registration requirements when each defendant’s registration requirement arose from a conviction that occurred before the penalty for noncompliance was raised a degree.
In 1995, Rodney Brown (R.B.) was convicted of sexual assault. In 2000, Hakum Brown (H.B.) was convicted of sexual assault and endangering the welfare of a child. As a result of those predicate convictions, H.B. and R.B. were subject to the sex offender registration requirements imposed by Megan’s Law. At the time of H.B.’s and R.B.’s sex-offender convictions, failure to comply with the registration requirements was punishable as a fourth-degree offense. However, in 2007, the Legislature upgraded failure to register to a third-degree offense. In 2014, H.B. failed to timely register with his local police department. R.B. similarly failed to register in 2015. Each was charged with third-degree failure to register.
H.B. pleaded guilty but appealed, asserting there is an ex post facto violation in being charged with third-degree failure to register when, at the time of his predicate sex- offender conviction, failure to register was only a fourth-degree offense. R.B. pleaded not guilty. He moved to dismiss his indictments on ex post facto grounds, and the trial court granted R.B.’s motion in its entirety. The State appealed the dismissal of R.B.’s indictments. The Appellate Division consolidated the State’s appeal in R.B.’s matter with H.B.’s appeal from his conviction. Relying on State v. Timmendequas, 460 N.J. Super. 346 (App. Div. 2019), the appellate court reversed H.B.’s conviction and affirmed the dismissal of R.B.’s indictment. The Court granted certification. 240 N.J. 426 (2020).
HELD: Defendants suffered no ex post facto violation as a result of being charged with failure-to-register offenses bearing the increased degree. The Legislature is free to increase the penalty for the offense of failure to comply with the regulatory registration requirement -- which is separate and apart from defendants’ predicate sex offenses -- without violating ex post facto principles as to those predicate offenses. 1 1. In Doe v. Poritz, the Court found the Megan’s Law registration requirement to be regulatory and remedial rather than punitive and therefore held that Megan’s Law’s retroactive application to persons who had already been convicted of eligible sex offenses did not subject past offenders to additional punishment and did not offend the Ex Post Facto Clauses. 142 N.J. 1, 75 (1995). (pp. 9-12)
2. Two findings must be made for a law to violate the constitutional prohibition on ex post facto laws. The court must determine: first, whether the law is retrospective, meaning it applies to events occurring before its enactment or changes the legal consequences of acts completed before its effective date; second, whether the law, as retrospectively applied, imposes additional punishment to an already completed crime. (pp. 12-13)
3. Doe placed the registration scheme decidedly in the nonpunitive category as a civil, administrative consequence. That the violation of that regulatory scheme is enforced through separate criminal charges when and if the violation occurs does not make the registration requirement itself penal. The registration requirement is not part of the penal sentence for the predicate sex offense. Distilled to its essence, registration is retroactive but not punitive. Prosecution for failing to register, however, is different. It addresses a separate crime and is punitive but not retroactive. Viewed accordingly, just as the Legislature was permitted to affix a criminal penalty for the prospective violation denominated as failure to register, so too may it prospectively enhance the degree of such a penalty. Federal courts and other state supreme courts have similarly held that failure to register is an offense distinct from the original underlying sex offense. (pp. 13-17)
4. Megan’s Law imposed a term of community supervision for life (CSL) on individuals convicted of certain sex offenses. In 2003, the Legislature replaced CSL with parole supervision for life (PSL), a more restrictive post-release regime. In State v. Perez, 220 N.J. 423 (2015), the Court considered whether the Legislature could retroactively convert an offender’s sentence of CSL to a sentence of PSL. Stressing that both “CSL and PSL were and are intended to be penal rather than remedial post-sentence supervisory schemes,” the Court held that such retroactive enhancement of an offender’s sentence violated the Ex Post Facto Clause. Id. at 441-42. (pp. 17-19)
5. And in State v. Hester, 233 N.J. 381 (2018), the Court considered whether -- after a 2013 amendment that raised the degree of violation of CSL and mandated conversion from CSL to PSL -- those heightened sanctions could be imposed on individuals who began serving CSL prior to the amendment. The Court concluded that the defendants’ CSL violations should not be viewed as independent crimes but as “violations of the general conditions of their supervised release” that were “integral parts” of the defendants’ sentences. Id. at 397. By enhancing the penalty for violating those requirements, the Legislature had impermissibly sought to “materially alter[] defendants’ prior sentences to their disadvantage.” Id. at 398. Increasing the defendants’ penalty for violating CSL violated the Ex Post Facto Clause, just as in Perez. Id. at 398. (pp. 19-21) 2 6. The Court stresses the foundational reasoning of Doe v. Poritz. Doe recognized the registration requirement as an administrative obligation rather than a penal consequence of the original predicate sex offense; the fact that violations of that administrative obligation are themselves separately punishable does not alter the nature of the obligation itself. Thus, imposition of that obligation did not involve a retroactive increase in punishment for the predicate crime. And, by extension, increasing the penal consequences for a violation of that obligation is similarly distinct from the punishment imposed for the predicate crime. (pp. 21-22)
7. Hester involved aspects of the application of CSL and PSL, which are not administrative obligations, but rather punitive measures imposed as part of the supervised release of an offender convicted of a qualifying offense. Doe is the most relevant to the circumstances present here, and adherence to Doe’s determination that registration is not punitive should have precluded reliance on cases dealing with punitive consequences such as PSL, CSL, and the requirements of the Sex Offender Monitoring Act, see Riley v. State Parole Bd., 219 N.J. 270 (2014), in the context of a challenge predicated on the registration requirement. (pp. 22-25)
8. The Court disapproves of the analysis of Timmendequas and reverses the Appellate Division’s decision in this matter, which relied on Timmendequas. If the Legislature has the authority to create new penalties for noncompliance with administrative obligations, as it did in Megan’s Law, it would be incongruous if it could not prospectively upgrade the penalty for violating an existing administrative obligation. (p. 25)
REVERSED. R.B.’s matter is REMANDED to the trial court. H.B.’s conviction and sentence are REINSTATED.
JUSTICE ALBIN, dissenting, does not see any basis to treat retroactively imposed increased punishments for violations of CSL requirements and Megan’s Law registration requirements differently for ex post facto purposes. Justice Albin notes that both the CSL requirements and the Megan’s Law registration requirements are conditions imposed at the time of sentencing for a defendant’s predicate sex offense; both mandate lifetime compliance; and violations of both are punishable as crimes, subjecting offenders to potential prison terms. In Justice Albin’s view, the Court should not retroactively aggravate the penalty for failing to register based on an arbitrary distinction between CSL and Megan’s Law registration. Justice Albin concludes that the 2007 amendment increased the punishment for defendants’ violation of a condition of their sentences -- the registration requirement -- and therefore materially altered their sentences to their disadvantage in violation of the prohibition on ex post facto laws.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a dissent. 3 SUPREME COURT OF NEW JERSEY A-39 September Term 2019 083353
State of New Jersey,
Plaintiff-Appellant,
v.
Hakum Brown a/k/a Hakeem Brown,
Defendant-Respondent. ________________________________________________________________
Rodney Brown,
Defendant-Respondent.
On certification to the Superior Court, Appellate Division.
Argued Decided October 14, 2020 January 25, 2021
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the briefs).
1 James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for respondents (Joseph E. Krakora, Public Defender, attorney; James K. Smith, Jr., of counsel and on the briefs).
Molly Linhorst argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Molly Linhorst, Alexander Shalom, and Jeanne LoCicero, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
New Jersey’s law governing the sex offender registration and
notification system, N.J.S.A. 2C:7-1 to -23, is commonly known as Megan’s
Law, after the victim of a tragedy that spurred the law’s passage. Enacted in
1994, Megan’s Law imposed a registration requirement on convicted sex
offenders and, in its original form, made failure to register chargeable as a
fourth-degree offense. The statutory scheme has been amended a number of
times. Pertinent here is the 2007 amendment through which the Legislature
prospectively elevated failure to register to a third-degree offense.
These consolidated criminal appeals present a common legal issue:
whether state or federal constitutional ex post facto prohibitions permit
defendants to be charged with and convicted of the enhanced third-degree
offense of failure to comply with sex offender registration requirements when
each defendant’s registration requirement arose from a conviction that
2 occurred before the penalty for registration noncompliance was raised a
degree.
For both defendants in this appeal, failure to register was punishable as a
fourth-degree offense at the time of the predicate convictions that subjected
each to Megan’s Law’s requirements. However, defendants’ failures to
register upon release from unrelated subsequent terms of incarceration
occurred after the increased degree in penalty took effect.
We hold that defendants suffered no ex post facto violation as a result of
being charged with failure-to-register offenses bearing the increased degree.
Defendants committed the charged offenses after the effective date of the 2007
amendments, of which each had fair notice. This Court has consistently
regarded the Megan’s Law registration requirement as a legislatively imposed
regulatory consequence of committing a sex offense, as defined under Megan’s
Law, even though the Legislature has chosen to enforce that administrative
scheme with punitive consequences. The Legislature is free to increase the
penalty for the offense of failure to comply with the regulatory registration
requirement -- which is separate and apart from defendants’ predicate sex
offenses -- without violating ex post facto principles as to those predicate
offenses.
3 We distinguish in our holding today our prior decision in State v. Hester,
233 N.J. 381, 398 (2018), where we held that the punishment for a violation of
a sentence of community supervision for life (CSL) cannot be made more
onerous than it was at the time of the underlying crime under ex post facto
principles because the CSL sentence is a punitive consequence of that
underlying offense. In contrast, an individual who violates the registration
requirement and is charged with the offense of noncompliance after the penalty
increase became effective is not subjected to a prohibited retroactive increase
in punishment for a past offense.
I.
A.
In 1995, Rodney Brown (R.B.) was convicted of second-degree sexual
assault, N.J.S.A. 2C:14-2, and was sentenced to three years in prison and CSL.
In 2000, Hakum Brown (H.B.) was convicted of second-degree sexual
assault and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a). H.B. was sentenced to six years in prison and CSL.
As a result of those predicate convictions, H.B. and R.B. were subject to
the sex offender registration requirements imposed by Megan’s Law.
Specifically, upon release from incarceration, H.B. and R.B. each were
required to register with the police department of the municipality in which he
4 resided. N.J.S.A. 2C:7-2(a)(1), -2(c). At the time of H.B.’s and R.B.’s sex-
offender convictions, failure to comply with the registration requirements was
punishable as a fourth-degree offense. L. 1994, c. 133, § 2a. However, in
2007, the Legislature upgraded failure to register to a third-degree offense. L.
2007, c. 19, § 1 (codified at N.J.S.A. 2C:7-2(a)(3)).
Pertinent to our present analysis, on August 25, 2014, H.B. was released
from incarceration on an unrelated offense but failed to timely register with his
local police department. R.B. similarly failed to register following his release
from incarceration (again on an unrelated offense) on December 23, 2015.
Each was charged with third-degree failure to register under N.J.S.A. 2C:7-
2(a)(3), as well as third-degree violations of CSL, N.J.S.A. 2C:43-6.4(d).
B.
H.B. pleaded guilty and was sentenced to three years’ imprisonment. He
appealed his conviction, asserting there is an ex post facto violation in being
charged with third-degree failure to register when, at the time of his predicate
sex-offender conviction, failure to register was only a fourth-degree offense.1
R.B. pleaded not guilty to a parallel set of charges. He moved to dismiss
his indictments on ex post facto grounds, and the trial court granted R.B.’s
1 The State did not raise a waiver argument before either the Appellate Division or this Court, hence waiver is not an issue in this appeal. 5 motion in its entirety. In doing so, the court applied State v. F.W., 443 N.J.
Super. 476 (App. Div. 2016), which held that it violated ex post facto
principles to charge an individual with third-degree violations of CSL when, at
the time of one’s predicate sex-offense conviction, violation of CSL was a
fourth-degree offense. After applying that reasoning to the CSL charges in
R.B.’s indictment, the trial court determined that the logic of F.W. applied
with equal force to R.B.’s indictment for third-degree failure to register.
The State appealed the dismissal of R.B.’s indictments; that appeal was
stayed when we granted certification in Hester to consider the ex post facto
argument in connection with the increase in offense degree for CSL violations.
After we issued our decision in Hester, the State conceded that R.B. and H.B.
could be charged with only a fourth-degree offense for their alleged violations
of CSL. Thus, the State abandoned the portions of its appeals concerning
defendants’ CSL violations. With respect to the remaining common issue
permeating both appeals, on July 31, 2019, the Appellate Division
consolidated the State’s appeal in R.B.’s matter with H.B.’s appeal from his
conviction. Thus, the consolidated appeals focused solely on the increase in
offense degree for defendants’ failure-to-register offenses.
6 C.
In an unpublished decision, the Appellate Division reversed H.B.’s
conviction for the third-degree offense of failure to register and affirmed the
dismissal of R.B.’s indictment for the same offense.
The appellate court began by reviewing the decision in Hester, homing
in on its conclusion that CSL is a condition of an offender’s sentence and that
violations of CSL therefore relate back to the date of the predicate sex offense
for ex post facto purposes. The court then referenced a recent published
opinion of the Appellate Division that considered whether to apply Hester’s
holding in respect of CSL violations to the offense of failure to register. State
v. Timmendequas, 460 N.J. Super. 346, 350 (App. Div. 2019). The
Timmendequas decision, written by the same appellate panel as in the instant
appeal, observed that the Legislature’s intent in penalizing failure to register
was punitive, even if the requirements themselves were not, and that an ex post
facto analysis was therefore compelled. Id. at 355. The Timmendequas court
concluded that, properly viewed, registration requirements are a condition of
an offender’s sentence, and the State’s enhanced penalties for failure to
register thus impermissibly “materially altered defendant’s prior sentence to
his disadvantage.” Id. at 357 (alterations omitted) (quoting Hester, 233 N.J. at
398).
7 The appellate court followed the holding in Timmendequas in the instant
appeal and similarly concluded that the logic of Hester should apply to
Megan’s Law’s registration requirements. Accordingly, the Appellate
Division held that H.B. and R.B. could be charged with failure to register only
to the extent that the law permitted at the time of their predicate sex offenses,
namely as a fourth-degree offense.
The State filed a petition for certification, which this Court granted. 240
N.J. 426 (2020).2 We also granted amicus curiae status to the American Civil
Liberties Union of New Jersey (ACLU).
II.
Before this Court, the State maintains its position that there is no ex post
facto violation in applying the 2007 amendment to N.J.S.A. 2C:7-2 to sex
offenders who commit the new crime of failing to register after the effective
date of the amendment. According to the State, the violation of the civil
requirement of registration is a separate offense distinct from the original
conviction that was the predicate for being placed on Megan’s Law. The State
maintains that applying the amendment to a post-amendment failure to register
is not a retroactive increase in punishment for a past offense.
2 A motion for leave to appeal in Timmendequas is currently pending before this Court. 8 In a joint brief, defendants take the opposite view. Defendants argue
that the 2007 amendment to Megan’s Law, which had no purpose other than to
increase the penalty for failure to register, may not be applied retroactively
with respect to the predicate offense without violating the Ex Post Facto
Clauses of the State and Federal Constitutions. The ACLU urges, consistent
with the position of defendants, that mandatory registration under Megan’s
Law be viewed as part-and-parcel of defendants’ sentences for their underlying
offenses and that therefore, as was held in Hester for CSL, failure to register
should not be regarded as a new offense. Amicus thus contends that the 2007
amendment retroactively makes the punishment more burdensome for the same
offense in violation of the Ex Post Facto Clauses.
III.
In 1994, the Legislature enacted Megan’s Law, now codified at N.J.S.A.
2C:7-1 to -23, for the express purpose of establishing a sex offender registry
that would “provide law enforcement with additional information critical to
preventing and promptly resolving incidents involving sexual abuse and
missing persons.” N.J.S.A. 2C:7-1(b). The law requires any individual
convicted of certain sex offenses to register with the police department of the
municipality in which he or she resides. N.J.S.A. 2C:7-2(c). Megan’s Law
9 further provided at the time that failure to register was punishable as a fourth-
degree offense. L. 1994, c. 133, § 2(a). In addition, annual address
verification obligations and registration requirements are imposed on a
registrant who moves into or out of New Jersey or changes his or her
residence. See N.J.S.A. 2C:7-2(c), (d).3
In Doe v. Poritz, 142 N.J. 1 (1995), this Court upheld Megan’s Law
against a series of constitutional challenges. In relevant part, this Court held
the law’s registration requirements could be imposed on individuals whose
predicate sex offenses predated the law’s passage without running afoul of
State or Federal Ex Post Facto Clauses. Id. at 75. Integral to that holding was
the conclusion that the law’s registration requirements were remedial rather
than punitive. Id. at 73. Our Court acknowledged that although the State
cannot impose retroactive punishment on individuals for their past offenses,
the law’s registration requirements were instead a “collateral consequence” of
an individual’s conviction, id. at 77 n.18, which did not raise the same
constitutional concerns, id. at 75. That determination was key. Because the
3 In 2014, legislative amendments to subsection (d) increased to an offense of the third degree the penalty for failing to notify and re-register upon relocation. Because both defendants were being released from prison when charged with their offenses in this matter, they were not charged under subsection (d), although subsection (d)’s obligations apply to them. 10 Court found the registration requirement to be regulatory and remedial, the
Court held that Megan’s Law’s retroactive application to persons who had
already been convicted of eligible sex offenses in this and other jurisdictions
did not subject past offenders to additional punishment and did not offend the
Ex Post Facto Clauses. Ibid. That foundational determination has never been
shaken. This Court has consistently treated the registration requirement as a
civil consequence. State v. Perez, 220 N.J. 423, 440 (2015) (describing the
registration requirement as an “administrative obligation” distinct from a
punitive consequence); see also Riley v. State Parole Bd., 219 N.J. 270, 297
(2014) (referring to Megan’s Law as a “nonpunitive civil statute”); In re
Commitment of J.M.B., 197 N.J. 563, 601 (2009) (describing Megan’s Law as
a “remedial, non-punitive statute[]”).
In 2007, the Legislature amended Megan’s Law, upgrading failure to
register from a fourth-degree offense to a third-degree offense. L. 2007, c. 19,
§ 1. The enhanced penalties applicable to an offense graded as third degree
are significant. While a fourth-degree offense carries a prison term of no
greater than eighteen months, an individual convicted of a third-degree offense
may be sentenced to a term of imprisonment between three and five years.
N.J.S.A. 2C:43-6(a)(3) to (4). The 2007 amendments took effect on March 1,
2007. L. 2007, c. 19, § 3.
11 That increase in penalty for failure to register gives rise to the present ex
post facto challenge.
Both the New Jersey and United States Constitutions prohibit the
Legislature from passing ex post facto laws. N.J. Const. art. IV, § 7, ¶ 3 (“The
Legislature shall not pass any . . . ex post facto law . . . .”); accord U.S. Const.
art. I, § 10, cl. 1. We have interpreted the Ex Post Facto Clause in the State
Constitution in the same manner as its federal counterpart. Doe, 142 N.J. at
42. Those clauses proscribe “any statute which . . . makes more burdensome
the punishment for a crime, after its commission.” Beazell v. Ohio, 269 U.S.
167, 169 (1925); see also Weaver v. Graham, 450 U.S. 24, 30 (1981)
(emphasizing that the Ex Post Facto Clause seeks not to guarantee “an
individual’s right to less punishment, but [to guard against] the lack of fair
notice and [to promote] governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was consummated”) .
The prohibition on ex post facto laws thus advances two primary purposes: “It
assures that individuals can rely on laws until they are ‘explicitly changed,’
and it restricts the government from passing ‘potentially vindictive
legislation.’” Riley, 219 N.J. at 284 (quoting Carmell v. Texas, 529 U.S. 513,
566 (2000)).
12 Two findings must be made for a law to violate the prohibition on ex
post facto laws. First, the court must determine whether “the law is
‘retrospective,’” meaning “it ‘appl[ies] to events occurring before its
enactment’ or . . . ‘changes the legal consequences of acts completed before its
effective date.’” Id. at 285 (first alteration in original) (quoting Miller v.
Florida, 482 U.S. 423, 430 (1987)). “Second, the court must determine
whether the law, as retrospectively applied, imposes additional punishment to
an already completed crime.” Ibid. (citing Kansas v. Hendricks, 521 U.S. 346,
370 (1997)).
IV.
In considering the question at hand, we find that Doe v. Poritz’s lantern
lights the way to our conclusion.
Since this Court first upheld the Megan’s Law registration of sex
offenders, including sex offenders whose predicate convictions occurred prior
to Megan’s Law’s enactment, the registration requirement has been viewed as
a nonpunitive consequence of the predicate conviction, no matter when the
predicate conviction occurred. Doe, 142 N.J. at 43. Scrutinized under an ex
post facto lens, the registration obligation was held in Doe v. Poritz to be a
regulatory scheme, remedial in legislative intent and effect, and “designed
simply and solely to enable the public to protect itself from the danger posed
13 by sex offenders.” Id. at 73; cf. United States v. Salerno, 481 U.S. 739, 747
(1987) (“There is no doubt that preventing danger to the community is a
legitimate regulatory goal.”). Moreover, the Doe Court noted that simply
because a regulatory program has “some deterrent punitive impact . . . does not
. . . transform those provisions into ‘punishment.’” 142 N.J. at 75.
Doe placed the registration scheme decidedly in the nonpunitive
category, and ever since it has been treated accordingly by this Court as a civil,
administrative consequence for individuals who have been convicted of an
eligible sex offense in New Jersey or another jurisdiction and are deemed
repetitive and compulsive. See Perez, 220 N.J. at 440 (describing registration
as an “administrative obligation”). That the violation of that regulatory
scheme is enforced through separate criminal charges when and if the violation
occurs does not make the registration requirement itself penal, as Doe
recognized. Therefore, the registration requirement survived its initial ex post
facto challenge in Doe -- it is not part of the penal sentence for the predicate
sex offense.4
4 The registration and regulatory scheme also has overcome Double Jeopardy Clause challenges, which use a similar analysis for determining whether registration imposes a “punishment” on an individual. Federal courts have reached the same conclusion that we did in Doe: the law’s registration requirements constitute non-punitive civil remedies rather than criminal
14 Distilled to its essence then, registration is retroactive but not punitive.
Prosecution for failing to register, however, is different. It addresses a
separate crime and is punitive but not retroactive.
Viewed accordingly, just as the Legislature was permitted to affix a
criminal penalty for the prospective violation denominated as failure to
register, so too may it prospectively enhance the degree of such a penalty. It
did not before constitute enhancement of punishment for the original predicate
offense, and now, when increased by a degree, it is simply a prospective
enhancement of an offense for which defendants had fair notice.
Thus, the legislative increase in punishment that the 2007 amendments
prescribed for those subject to Megan’s Law’s registration requirements who
fail to register after the amendments’ effective date does not contravene the
fair-notice requirement that the prohibition against ex post facto legislation
protects -- it does not “increase[] punishment beyond what was prescribed
when the crime was consummated.” See Weaver, 450 U.S. at 30.
penalties. The Third Circuit held in Artway v. Attorney General that Megan’s Law’s registration requirements were not punitive for purposes of ex post facto or double jeopardy analysis. 81 F.3d 1235, 1271 (3d Cir. 1996). The court observed that registration “historically is a regulatory technique with a salutary purpose.” Id. at 1266. The Third Circuit similarly upheld Megan’s Law’s notification requirements in the face of ex post facto and double jeopardy challenges. E.B. v. Verniero, 119 F.3d 1077, 1081, 1105-07 (3d Cir. 1997).
15 We add, in closing on this point, that federal cases in the Third Circuit
addressing the federal Sex Offender Registration and Notification Act
(SORNA), 42 U.S.C. §§ 16901 to 16962, treat similarly ex post facto
challenges to failure-to-register offenses by individuals whose original sex
offenses predated the federal law’s passage. See United States v. Shenandoah,
595 F.3d 151, 158-59 (3d Cir. 2010), abrogated in other part by Reynolds v.
United States, 565 U.S. 432 (2012); see also Pavulak v. United States, 248 F.
Supp. 3d 546, 569 (D. Del. 2017) (finding such a conviction lawful). Other
circuits have reached similar conclusions. See, e.g., United States v. Wass,
954 F.3d 184, 190-92 (4th Cir. 2020); United States v. Felts, 674 F.3d 599,
606 (6th Cir. 2012) (“[C]ircuit courts have consistently held that SORNA does
not violate the Ex Post Facto Clause.”). Those cases all rely on the proposition
that failure to register is an offense distinct from the original underlying sex
offense, which is consistent with the Supreme Court’s dicta in Smith v. Doe:
“A sex offender who fails to comply with the reporting requirement may be
subjected to a criminal prosecution for that failure, but any prosecution is a
proceeding separate from the individual’s original offense.” 538 U.S. 84, 101-
02 (2003) (emphasis added).
And, as the State correctly points out in its argument, other state
supreme courts also have concluded that failure to register is a separate crime
16 from the original sex offense. See State v. Cook, 187 P.3d 1283, 1290 (Kan.
2008) (“[T]he principles underlying the Ex Post Facto Clause do not apply to
protect [a defendant’s] failure to register after the amendments became
effective.”); Buck v. Commonwealth, 308 S.W.3d 661, 668 (Ky. 2010)
(“[C]riminal liability for failure to register is prospective and not a punishment
for past crimes.”); State v. Howard, 983 N.E.2d 341, 348 (Ohio 2012) (holding
that the defendant’s notice of the increased penalty for failure to register was
fatal to his ex post facto claim); State v. Gibson, 182 A.3d 540, 558 (R.I.
2018).
Defendants’ argument, buttressed by the ACLU and espoused both in the
Appellate Division decision in this matter and in the earlier decision in
Timmendequas, takes its foundation from a body of case law that has
considered the ex post facto implications of amendments to other aspects of
Megan’s Law. The extrapolation from those decisions is misplaced, as we
explain.
Since Doe v. Poritz settled the question of the ex post facto impact of
imposition of a registration requirement on sex offenders, including persons
whose predicate offenses predated the enactment of Megan’s Law, much of our
17 subsequent examination of ex post facto considerations in connection with
Megan’s Law has focused on a specific component of Megan’s Law, namely
the Violent Predator Incapacitation Act, which imposed a term of CSL on
individuals convicted of certain sex offenses. See L. 1994, c. 130, §§ 1, 2.
Individuals subject to CSL are supervised by the Parole Board and face
limitations on their liberty, including requirements of
approval of their residence, N.J.A.C. 10A:71- 6.11(b)(5); approval of any change of residence, N.J.A.C. 10A:71-6.11(b)(5)-(6); and approval of employment and notice of any change in employment status, N.J.A.C. 10A:71-6.11(b)(14)-(15). A defendant under CSL may be subjected to a yearly polygraph examination, N.J.A.C. 10A:71-6.11(b)(21); imposition of a curfew, N.J.A.C. 10A:71-6.11(b)(17); and restrictions on access to and use of the internet, N.J.A.C. 10A:71-6.11(b)(22).
[Perez, 220 N.J. at 437.]
In 2003, the Legislature replaced CSL with parole supervision for life
(PSL), a more restrictive post-release regime. L. 2003, c. 267. Unlike CSL,
an individual sentenced to serve PSL can be returned to prison without a trial
by jury. N.J.S.A. 30:4-123.63. Instead, the Parole Board need only produce
clear and convincing evidence of a parole violation at a hearing held by an
administrative officer. Ibid.
In Perez, we considered whether the Legislature could retroactively
convert an offender’s sentence of CSL to a sentence of PSL. Defendant 18 Richard Perez, who was serving CSL as a result of a 1998 conviction, pled
guilty to an additional sex offense in 2011. 220 N.J. at 427, 429. Perez was
sentenced pursuant to N.J.S.A. 2C:43-6.4, which provides for an enhanced
term without parole for “individuals who commit an enumerated offense while
serving [PSL].” Id. at 427. The State argued that the enhanced term applied to
Perez because the Legislature’s change of CSL to PSL was one of form rather
than substance. Id. at 432. This Court rejected that argument, holding that the
State could not treat CSL and PSL identically because converting individual s
from CSL to PSL status retroactively would enhance the punitive
consequences of their sentences. Id. at 442. We stressed that both “CSL and
PSL were and are intended to be penal rather than remedial post-sentence
supervisory schemes.” Id. at 441 (citing State v. Schubert, 212 N.J. 295, 314
(2012)). Because the conversion of CSL to PSL worked such consequences as
eliminating an offender’s opportunity for future parole and placing offenders
“in the legal custody of the Commissioner of Corrections,” we held that such
retroactive enhancement of an offender’s sentence violated the Ex Post Facto
Clause. Id. at 441-42 (quoting N.J.S.A. 2C:43-6.4).
In a subsequent decision, we were called on to consider amendments to
CSL, which still applies to certain sex offenders. In 2013, the Legislature
amended N.J.S.A. 2C:43-6.4 so that violation of a condition of CSL,
19 previously a fourth-degree offense, was made punishable as a third-degree
offense; the Legislature also compelled a mandatory conversion from CSL to
PSL. L. 2013, c. 214, § 4; see also N.J.S.A. 2C:43-6.4(a), (d). In Hester, we
held that it violated the Ex Post Facto Clause to impose those heightened
sanctions on individuals who began serving CSL prior to enactment of those
provisions. 233 N.J. at 385.
The defendants in Hester had each been placed on CSL when violations
were punishable as a fourth-degree offense. Id. at 395-96. After the
defendants violated the terms of their CSL, they were charged with third-
degree offenses under the 2013 amendments to N.J.S.A. 2C:43-6.4. Id. at 385.
We first concluded that the defendants’ CSL violations should not be viewed
as independent crimes but as “violations of the general conditions of their
supervised release.” Id. at 397. Because CSL’s release requirements were
“integral parts” of the defendants’ sentences, “[t]he punishment for violating
those regulatory requirements . . . was established when defendants committed
their crimes and received their sentences [of CSL].” Ibid. By enhancing the
penalty for violating those requirements, the Legislature had impermissibly
sought to “materially alter[] defendants’ prior sentences to their disadvantage.”
Id. at 398. We noted in particular the inequity of changing the terms of an
offender’s sentence to permit conversion to PSL:
20 Under PSL, the Parole Board has the authority to simply revoke a defendant’s supervised release for a violation of a general condition and bypass the panoply of procedural rights afforded under the criminal justice system, such as the rights to trial by jury and to have guilt proven beyond a reasonable doubt. In Perez, the State conceded “that the almost-universal practice since the enactment of [PSL] is to revoke a defendant’s parole and return him to prison” for a condition-of- release violation rather than prosecute him for a crime.
[Id. at 396 (alteration in original) (footnote omitted).]
Accordingly, we held in Hester that increasing the defendants’ penalty for
violating CSL violated the Ex Post Facto Clause by retroactively “enhanc[ing]
the punitive consequences” of their sentences to their detriment, just as it had
in Perez. Id. at 398 (quoting Perez, 220 N.J. at 442).
The logic advanced by defendants and amicus, and adopted by the
Appellate Division in this matter and in the prior published opinion in
Timmendequas, is inconsistent with the foundational reasoning of Doe v.
Poritz. Doe recognized the registration requirement as an administrative
obligation rather than a penal consequence of the original predicate sex
offense; the fact that violations of that administrative obligation are themselves
separately punishable does not alter the nature of the obligation itself. Thus,
imposition of that obligation did not involve a retroactive increase in
punishment for the predicate crime. And, by extension, increasing the penal 21 consequences for a violation of that obligation is similarly distinct from the
punishment imposed for the predicate crime.
To the extent that the Appellate Division’s analysis in this matter and in
Timmendequas is rooted in in the reasoning espoused in Hester, moreover, it
fails to account for the key distinguishing feature in that appeal. Hester
involved aspects of the application of CSL and PSL. Both are recognized not
as administrative obligations, but rather as punitive measures imposed as part
of the supervised release of an offender convicted of a qualifying offense . As
Perez noted, when comparing CSL to registration, CSL is different in kind
because it is punishment for the predicate offense -- the offense that caused the
sentence to include CSL. 220 N.J. at 440. And as for PSL, our case law is
replete with the acknowledgment that parole is continued punishment for the
offense that carries it as part of the sentence, rendering the individual in the
continued custody of the Department of Corrections. Thus, in Hester as in
Perez, claims of retroactive imposition of punishment related to enhancement
of supervised release that was a condition of a sex offense sentence.
In sum, Hester involved a different and distinguishable setting than the
one posed here -- an increase in offense degree imposed on prospective
violations of the Megan’s Law registration requirement.
22 Finally, the logic espoused by the Appellate Division and the defendants
here is further undermined by Riley, in which we considered whether the
requirements of the Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-
123.89 to -123.95, could be applied to an individual whose predicate offenses
predated the law’s enactment. 219 N.J. at 274. SOMA requires qualifying sex
offenders to wear an electronic ankle bracelet that tracks their movements via
global positioning satellite (GPS). Id. at 277. Individuals subject to this
monitoring were required to ensure that their bracelet was continuously
charged, provide advance notice of any out-of-state travel, and report their
weekly work schedules to a parole officer. Id. at 276-77. We concluded that
the burdens of twenty-four-hour GPS monitoring and the attendant
requirements of reporting to a parole officer “clearly place[d] this law in the
category of a penal rather than civil law.” Id. at 275. Applying the factors set
forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963), we noted
that SOMA’s monitoring regime “looks like parole, monitors like parole,
restricts like parole, serves the general purpose of parole, and is run by the
Parole Board.” Id. at 294. That similarity with parole, which this Court has
consistently held to be punitive, see Schubert, 212 N.J. at 308, compelled the
conclusion that SOMA was a punitive law subject to the Ex Post Facto Clause,
Riley, 212 N.J. at 297.
23 Riley illustrates that Megan’s Law registration requirements are not
rendered punitive merely because they are policed by penal means. Our focus
in Riley was on the punitive or nonpunitive nature of SOMA’s GPS
monitoring imposed retroactively on certain individuals, not on the
unquestionably penal nature of a prospective prosecution for failure to comply
with that monitoring. Under the logic of the argument in support of defendants
and the decision under review, Riley’s conclusion that continuous GPS
monitoring is punitive was purely superfluous -- the decision could have rested
simply on the fact that the monitoring was policed by punitive means, namely
the threat of prosecution for non-compliance. But Riley expressly found that
“[t]he constraints and disabilities imposed on Riley by SOMA, and SOMA’s
similarity to parole supervision for life, clearly place this law in the category
of a penal rather than civil law.” Id. at 275. And just as the potential
prosecution for a SOMA violation was not what rendered SOMA punitive, the
potential prosecution for failure to register does not render the registration
obligation punitive in its own right.
Review of those cases reveals that Doe is the most relevant to the
circumstances present here, and adherence to Doe’s determination that
registration is not punitive should have precluded reliance on cases dealing
24 with punitive consequences such as PSL, CSL, and SOMA in the context of a
challenge predicated on the registration requirement.
C.
For those reasons, we disapprove of the analysis of Timmendequas and
reverse the Appellate Division’s decision in this matter, which relied on
Timmendequas to find an ex post facto violation in the third-degree charges
brought against defendants.
In rejecting the arguments pressed on behalf of defendants, we agree
with the position advanced by the State that adoption of such a view would
raise uncertainty regarding the State’s ability to enforce Megan’s Law’s
registration requirements against any offender whose predicate convictions
predated the law’s passage -- a position clearly understood in Doe. Those
requirements have been in place for over two decades, and we are unaware of
any support for the proposition that their enforcement against pre-1994
offenders raises ex post facto concerns. See, e.g., State v. S.R., 175 N.J. 23,
26 (2002) (noting such a conviction). And, if the Legislature has the authority
to create new penalties for noncompliance with administrative obligations, as
it did in Megan’s Law, it would be incongruous if it could not prospectively
upgrade the penalty for violating an existing administrative obligation.
25 VI.
The judgment of the Appellate Division is reversed. R.B.’s matter is
remanded to the trial court for further proceedings consistent with this
opinion’s holding. We reinstate H.B.’s conviction and sentence.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a dissent.
26 State of New Jersey,
Defendant-Respondent. ________________________________________________________________
JUSTICE ALBIN, dissenting.
“Like cases should be treated alike” is an ancient maxim and a central
theme in our modern-day constitutional jurisprudence. The judicial principle
to treat like cases alike instructs courts to avoid arbitrary distinctions and
fictional labels to distinguish one case from another. That principle is at the
heart of this case.
In State v. Timmendequas, in a persuasive and well-reasoned opinion
authored by Judge Messano, the Appellate Division determined that, for ex
1 post facto purposes, retroactively increasing the punishment for a violation of
a condition of the Megan’s Law registration requirements was no different
than what this Court declared unconstitutional in State v. Hester, 233 N.J. 381
(2018) -- retroactively increasing the punishment for a violation of a condition
of community supervision for life (CSL). See 460 N.J. Super. 346 (App. Div.
2019). The Timmendequas court did no more than follow the inescapable
logic of Hester in applying a like principle to a like case. In this case, the
same appellate panel hewed to the holding of Timmendequas and determined
that defendants’ Megan’s Law registration violations were not punishable as
third-degree crimes because, at the time of the imposition of their sentences, a
registration violation was punishable as only a fourth-degree crime.
I agree with the Appellate Division that to punish defendants as third-
degree offenders would violate the Ex Post Facto Clauses of the United States
and New Jersey Constitutions. I therefore respectfully dissent.
Defendants Rodney Brown (R.B.) and Hakum Brown (H.B.) both pled
guilty to having committed sex offenses and were sentenced to terms of
incarceration, R.B. in 1995 and H.B. in 2000. In both cases, trial courts
sentenced defendants to CSL and to comply with the lifetime registration
2 requirements of Megan’s Law after they completed the custodial portion of
their sentences.
At the time of defendants’ sentences, a violation of a term of CSL was a
fourth-degree offense. L. 1994, c. 130, § 2. In 2014, the Legislature upgraded
the penalty for a CSL violation from a fourth-degree to a third-degree offense.
L. 2013, c. 214, § 4 (codified at N.J.S.A. 2C:43-6.4(d)). Also at the time of
their sentences, a violation of the Megan’s Law registration requirements was
a fourth-degree offense. L. 1994, c. 133, § 2(a). In 2007, the Legislature
upgraded the penalty for failure to register pursuant to Megan’s Law from a
fourth-degree to a third-degree offense. L. 2007, c. 19, § 1 (codified at
N.J.S.A. 2C:7-2(a)(3)).
In Hester, we declared that the Federal and State Ex Post Facto Clauses
forbid subjecting defendants sentenced to CSL before enactment of the 2014
amendment to the enhanced punishment of a third-degree crime for a CSL
violation committed after passage of the amendment. 233 N.J. at 385-86. For
ex post facto purposes, we held that the CSL violations in Hester related back
to the conditions made part of the defendants’ sentences for their sex offenses
-- their original “completed crime[s].” Id. at 392. We determined that
retroactively increasing the punishment from a fourth-degree offense to a
third-degree offense violated the Ex Post Facto Clauses. Id. at 398.
3 Accordingly, the defendants could not be sentenced as third-degree offenders
for committing CSL violations under the conditions of their original sentences.
In 2016, both R.B and H.B. were charged not only with third-degree
failure to register as sex offenders for not registering with municipal police
departments within forty-eight hours of their release from county jails, but also
with third-degree CSL violations. No one disputes that, based on Hester, the
Ex Post Facto Clauses bar the imposition of a third-degree sentence for the
CSL violations. The Appellate Division held that the same result should be
reached for the Megan’s Law violations because “the ‘additional punishment’
attached to the registration requirements of Megan’s Law, which were
‘condition[s] of defendants’ sentences,’ the ‘“completed crime” necessarily
relate[d] back’” to the earlier predicate sex offenses to which they pled guilty,
quoting Hester, 233 N.J. at 392 (alterations in original). The Appellate
Division concluded that the 2007 amendment, by increasing the punishment
for a violation of a condition of their original sentences from a fourth-degree
to a third-degree crime, “materially altered defendant[s’] prior sentence[s] to
[their] disadvantage,” in violation of the Federal and State Ex Post Facto
Clauses. (quoting Timmendequas, 460 N.J. Super. at 354 (alterations in
original) (quoting, in turn, Hester, 233 N.J. at 398)).
4 The Appellate Division reached a sensible conclusion because of the
many similarities between CSL’s regulatory requirements and Megan’s Law’s
registration requirements.
CSL requires an offender to secure the approval of a parole officer
before moving into a residence or changing residence. N.J.A.C. 10A:71-
6.11(b)(2), (7) to (8). Megan’s Law requires an offender to annually register
with the local police department his present address and, within ten days
before moving to any new residence, any change of address. N.J.S.A. 2C:7-
2(d)(1).
CSL requires an offender to secure the approval of a parole officer
before accepting employment or changing employment. N.J.A.C. 10A:71-
6.11(b)(16) to (17). Megan’s Law requires an offender to notify the
appropriate law enforcement agency of any change in employment within five
days or about enrollment in an institution of higher education. N.J.S.A. 2C:7 -
Both the CSL requirements and the Megan’s Law registration
requirements are conditions imposed at the time of sentencing for a
defendant’s predicate sex offense. Both CSL and Megan’s Law mandate
lifetime compliance. Both CSL and Megan’s Law violations are punishable as
crimes, subjecting offenders to potential prison terms.
5 Yet, the majority finds that upgrading the penalty for a CSL violation
from a fourth-degree offense to a third-degree offense is barred by the Ex Post
Facto Clauses but that upgrading the penalty for a Megan’s Law registration
violation from a fourth-degree offense to a third-degree offense -- carrying a
potential prison term of three to five years -- passes constitutional muster. In
my view, there is no logical basis, for ex post facto purposes, to distinguish
between increased criminal penalties -- that is, penalties beyond those
permissible at the time of sentence -- imposed for violations of Megan’s Law
and CSL. If the Megan’s Law registration requirements were folded into CSL
or given the name CSL then, presumably, the Ex Post Facto Clauses would
protect against the enhanced punishments imposed here. The historical
safeguards provided by the Ex Post Facto Clauses surely cannot depend on the
name given to conditions imposed as part of a sentence.
The majority submits that “Megan’s Law registration requirements are
not rendered punitive merely because they are policed by penal means.” Ante
at ___ (slip op. at 23). But defendants do not challenge whether Megan’s Law
registration requirements themselves are punitive; rather, defendants argue that
increasing the penalty from a fourth-degree offense to a third-degree offense
for failing to comply is punitive.
6 When defendants were originally sentenced to lifetime compliance with
Megan’s Law registration requirements, failure to register was punishable as a
fourth-degree offense, but the 2007 amendment has now increased that penalty
to a third-degree offense. Such an increase therefore unquestionably imposes
additional punishment to defendants’ already completed crimes -- the crimes
that subjected them to Megan’s Law compliance in the first place.
To evaluate whether the retroactive application of a statute imposes
additional punishment in violation of the Ex Post Facto Clauses, a court must
assess “whether the Legislature intended ‘to impose punishment,’” and if it
does find that the Legislature possessed a punitive intent, the inquiry ends.
Riley v. State Parole Bd., 219 N.J. 270, 285 (2014) (quoting Smith v. Doe, 538
U.S. 84, 92 (2003)). Increasing a criminal penalty for an offense, as the
Legislature did in passing the 2007 amendment, demonstrates a purely punitive
intent. Indeed, the Legislature stated that the purpose of the amendment was
to “upgrade[] the penalty for failure to register as a sex offender under
‘Megan’s Law.’” S. Law & Pub. Safety & Veterans’ Affairs Comm. Statement
to S. 716 & 832 (Jan. 26, 2006); Assemb. Judiciary Comm. Statement to S.
716 & 832 (Oct. 23, 2006).
In disposing of the ex post facto challenge, the majority ultimately relies
heavily on Doe v. Poritz, 142 N.J. 1 (1995), asserting that Megan’s Law
7 registration is a remedial measure, not a punitive one. Although Poritz ruled
that compelling persons convicted of certain sex offenses to comply with
Megan’s Law registration requirements was a remedial measure, id. at 73, the
constitutional propriety of enforcing this remedial legislation through a
criminal penalty was not squarely addressed by the Court.
Rather, in assessing whether the law was punitive or remedial, the Court
evaluated the objective of the registration and notification requirements
themselves. See id. at 73-75. Poritz did not directly focus on whether the
Megan’s Law enforcement provision, which at the time made failure to register
a fourth-degree crime punishable by up to eighteen months in jail, was
punitive and violative of the Ex Post Facto Clauses. I agree with the Appellate
Division in Timmendequas that “while the Court in Poritz held the overall
purpose of Megan’s Law is remedial in nature, the method chosen to enforce
its registration requirements is not,” and that the Legislature in enacting the
2007 amendment intended to increase punishment, which compels an ex post
facto analysis. 460 N.J. Super. at 355. Additionally, as the Appellate Division
noted in Timmendequas,
many federal and state courts have concluded that subsequent amendments to an otherwise constitutional remedial registration scheme, which make obligations more onerous than when the crime was committed or when registration was initially imposed, may result in ex post facto violations, even though the amendments 8 did not increase the direct penal consequence for non- compliance.
[Id. at 356.]
If the Legislature increased the punishment for a registration violation to
a second- or first-degree crime, would this Court still call the scheme remedial
in nature? When considering the constitutional import of a statute, we should
call a thing by what it is, not by another name. As the Poritz Court stated,
“[l]abels, of course, do not ‘immunize [a law] from scrutiny under the Ex Post
Facto Clause.’” Poritz, 142 N.J. at 62 (second alteration in original) (quoting
Collins v. Youngblood, 497 U.S. 37, 46 (1990)). A remedial statute may not
remain remedial when enforced by increased criminal penalties.
Whether the original Megan’s Law registration enforcement scheme is
penal rather than remedial, however, is not the issue before us. We should not
retroactively aggravate the penalty for failing to register, a requirement
necessarily imposed as part of defendants’ sentences for their predicate sex
offenses, to a three-to-five-year prison term based on an arbitrary distinction
between CSL and Megan’s Law registration.
In the end, I conclude, as did the Appellate Division in this case and in
Timmendequas, that the 2007 amendment increased the punishment for
defendants’ violation of a condition of their sentences -- the registration 9 requirement -- and therefore materially altered their sentences to their
disadvantage in violation of the prohibition on ex post facto laws. See
Timmendequas, 460 N.J. Super. at 356-57.
I do not see any basis to treat retroactively imposed increased
punishments for violations of CSL requirements and Megan’s Law registration
requirements differently for ex post facto purposes. I therefore respectfully
dissent.