New Jersey Supreme Court Finds Constant GPS Monitoring of Sex Offender Unconstitutional as Ex Post Facto

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a closely divided opinion in Riley v. New Jersey State Parole Board, the New Jersey Supreme Court has found that its Sex Offender Monitoring Act (SOMA), passed in 2007, violates the prohibition on  ex post facto laws under both the New Jersey and United States Constitutions when applied to a person whose crime was committed in 1986 and was released from prison not under any type of parole supervision.

George Riley, who is now 81 years of age, argued that the monitoring constituted punishment, rather than simply civil consequences. The majority of the court found that SOMA was penal in nature: it "looks like parole, monitors like parole, restricts like parole, serves the general purpose of parole, and is run by the Parole Board. Calling this scheme by another name does not alter its essential nature."

The majority also discussed the particulars of the GPS monitoring: the device combines the transmitter and tracking device into a single ankle bracelet that Riley experiences as heavy and causes pain when he sleeps; the device identifies Riley as a sex offender "no less clearly than if he wore a scarlet letter"; the device transmits prerecorded messages while Riley is in public; Riley must be "tethered" to an electrical outlet for one or two hours every sixteen hours and cannot be out of range of the GPS receiver; and the wearing of the GPS is not reviewable under SOMA.

The majority stressed that Riley was not otherwise subject to probation and parole, but had completed his sentence, thus distinguishing his situation from some of the other cases that had considered the GPS monitoring issue.  However, the majority did note that "North Carolina Supreme Court in 2010 upheld against an ex post facto challenge a statute that provided for GPS monitoring of sexual offenders, regardless of whether the offenders had completed their sentences." 

Importantly, the majority applied United States Supreme Court precedent in analyzing whether the New Jersey statute was punitive and specifically stated that the "New Jersey Ex Post Facto Clause is interpreted in the same manner as its federal counterpart."  Thus, the state may clearly seek United States Supreme Court review of the state supreme court's holding in Riley. Whether or not it will is uncertain, but the division on the New Jersey Supreme Court as well as divisions among state courts may tip the balance toward asking the United States Supreme Court for review.

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