George C. Riley v. New Jersey State Parole Board (069327)

SYLLABUS

(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

Riley v. New Jersey State Parole Board (A-94-11) (069327)

Argued January 7, 2014 -- Decided September 22, 2014

ALBIN, J., writing for a majority of the Court.

In this appeal, the Court must determine whether the 2007 Sex Offender Monitoring Act (SOMA), N.J.S.A.
30:4-123.89 to -123.95, when applied to an individual whose offense was completed before its enactment, violates
the constitutional prohibition on ex post facto laws.

In September 1986, George Riley was convicted of second-degree attempted sexual assault of a minor. In
light of his previous sexual-offense convictions, Riley was sentenced to an extended term of twenty years subject to
a ten-year parole-ineligibility period, consecutive to a term of imprisonment imposed for a violation of his parole.
At the time, New Jersey law did not provide for the imposition of parole supervision for life for sexual offenses. On
his release in February 2009, he was not subject to any form of parole supervision, but was, however, subject to the
registration and notification requirements of Megan’s Law. In July 2009, the Superior Court conducted a Megan’s
Law hearing and, based primarily on his previous sexual-offense convictions, placed Riley in Tier 3 -- the highest
risk category for sexual offenders -- requiring Internet registration and the most comprehensive degree of
community notification.

In August 2009, the New Jersey State Parole Board informed Riley that he was subject to GPS monitoring
under SOMA. Under protest, Riley signed the Notice of Conditions for the GPS Monitoring Program. Riley was
told that he would have to wear an ankle bracelet twenty-four hours a day for the rest of his life, that his movements
would be tracked continuously by global positioning system (GPS) satellites, and that he would be assigned a
monitoring parole officer. The ankle unit must be plugged into an electrical outlet to be charged one to two hours
every day and during that time Riley’s movements are limited to the length of the cord. Riley’s failure to comply
with the program would subject him to prosecution for a third-degree crime.

Riley filed an appeal with the Parole Board, challenging the imposition of the SOMA requirements. He
characterized the GPS monitoring program as nothing less than parole supervision for life and claimed that this
arbitrarily extended sentence violated the Ex Post Facto Clauses of the United States Constitution and the New
Jersey Constitution. The Chairman of the Parole Board wrote to Riley that as a result of his Tier 3 designation, his
“placement [in] the Sex Offender G.P.S. Monitoring Program is mandated by statute” and that his failure to comply
with the program’s rules and regulations would constitute a third-degree crime. Riley appealed.

The Appellate Division, in a split decision, reversed the Parole Board and held that the retroactive
application of SOMA to sex offenders who committed their crimes before passage of the Act violates the Ex Post
Facto Clauses of the Federal and State Constitutions. Riley v. N.J. State Parole Bd., 423 N.J. Super. 224, 228 (App.
Div. 2011). The majority accepted that the Legislature’s intent in passing SOMA was to create “a civil scheme that
is primarily regulatory” in nature. Id. at 237. The majority, however, determined that the adverse effects of SOMA
were so punitive that they “constitute[d] retroactive punishment prohibited by the Ex Post Facto Clause.” Id. at 238.

Judge Parrillo dissented, finding no ex post facto violation in applying SOMA to Riley. Id. at 246. Judge
Parrillo maintained that Riley failed to establish that SOMA’s “effects are sufficiently punitive to transform its civil
remedy into criminal punishment.” Id. at 258. Judge Parrillo reasoned that the GPS monitoring program “is
sufficiently distinguishable from probation, parole or supervised release so as not to come within the constitutional
ex post facto proscription.” Id. at 252.

The Parole Board filed a notice of appeal as of right as a result of the dissent in the Appellate Division. See
R. 2:2-1(a). The sole issue on appeal as of right is whether SOMA, when retroactively applied to Riley based on his

1
1986 offense, is punitive in effect and therefore violative of the Ex Post Facto Clause. The Court also granted the
Parole Board’s petition for certification, 209 N.J. 596 (2012), in which the Board claims that SOMA, passed in
2007, was triggered by Riley’s 2009 Tier 3 Megan’s Law designation and therefore was not applied retroactively.

HELD: The retroactive application of the 2007 Sex Offender Monitoring Act to George Riley twenty-three years
after he committed the sexual offense at issue and after he fully completed his criminal sentence violates the Ex Post
Facto Clauses of the United States and New Jersey Constitutions.

1. The United States Constitution and the New Jersey Constitution both prohibit the State Legislature from passing
an “ex post facto law.” U.S. Const. art. I, § 10; N.J. Const. art. IV, § 7, ¶ 3. For a law to violate the ex post facto
prohibition, a court must find that the law is “retrospective” and that it imposes additional punishment to an already
completed crime. Even if the Legislature’s “intention was to enact a regulatory scheme that is civil and nonpunitive,
[the court] must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate
the State’s intention to deem it civil.” Smith v. Doe, 538 U.S. 84, 92 (2003). To determine the “effects” of a statute
for ex post facto purposes, the United States Supreme Court found “as a useful framework” seven factors referred to
in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963), a case involving a double-jeopardy challenge. In
Smith, the Court looked at five of those factors to determine whether the Alaska sex-offender registry scheme “in its
necessary operation” (1) “has been regarded in our history and traditions as a punishment”; (2) “imposes an
affirmative disability or restraint”; (3) “promotes the traditional aims of punishment”; (4) “has a rational connection
to a nonpunitive purpose”; or (5) “is excessive with respect to this purpose.” Smith, supra, at 97. The Court noted
that, unlike the registration and notification law, probation or supervised release curtailed an individual’s right “to
live and work as other citizens” without supervision. Id. at 101. Community supervision for life and its corollary
parole supervision for life are merely indefinite forms of parole, and this Court has ruled that community
supervision for life “is punitive rather than remedial.” State v. Schubert, 212 N.J. 295, 308 (2012). (pp. 17-27)

2. The Court rejects the Parole Board’s argument that it was the 2009 Tier 3 high-risk designation and not the
offense conduct that triggered the GPS monitoring. The Board’s reasoning is not supported by United States
Supreme Court jurisprudence. At the Megan’s Law hearing, the court made no independent assessment of Riley’s
current dangerousness unrelated to his prior convictions. The predicate events responsible for Riley’s current
regime of GPS monitoring are his 1986 sexual offense and earlier offenses. The question is whether SOMA can
retroactively apply to completed conduct without offending the Constitution. (pp. 27-29)

3. The issue is whether, despite the remedial intent of the Legislature, SOMA’s adverse effects are “so punitive
either in purpose or effect as to negate the State’s intent to deem it only civil and regulatory.” Smith, supra, at 92. If
the real world effects of the twenty-four-hour GPS monitoring regime on Riley’s life are unmistakably punitive in
nature, the Ex Post Facto Clause will bar retroactive application of SOMA. In applying the five Mendoza-Martinez
factors considered most relevant in Smith, the Court notes that there are no direct historical analogues to a twenty-
four-hour-a-day electronic surveillance that can track an individual’s every movement. Parole, more particularly
parole supervision for life, is the closest analogue to SOMA. SOMA 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. SOMA “imposes an affirmative disability or restraint,” id. at 97, and clearly
impinges on Riley’s “freedom to travel,” which “has long been recognized as a basic right under the Constitution.”
See United States v. Guest, 383 U.S. 745, 758 (1966). SOMA’s grant of authority to parole officers to gain access
to Riley’s home is also an incursion into Riley’s Fourth Amendment privacy rights. SOMA’s twenty-four-hour
surveillance of Riley and onerous restrictions deprive him of freedom of movement and the ability “to live and work
as other citizens, with no supervision.” Smith, supra, at 100-01. SOMA’s adverse effects are “so punitive . . . as to
negate the State’s intent to deem it only civil and regulatory.” Id. at 92. The retroactive application of SOMA to
George Riley twenty-three years after he committed the sexual offense at issue and after he fully completed his
criminal sentence violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions. (pp. 30-37)

2
 The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the New Jersey
State Parole Board for enforcement of this judgment.

CHIEF JUSTICE RABNER filed a separate, DISSENTING opinion, in which JUSTICES
PATTERSON and FERNANDEZ-VINA join, substantially for the reasons expressed in Judge Parrillo’s dissenting
opinion.

JUSTICE LaVECCHIA and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in
JUSTICE ALBIN’s opinion. CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-
VINA filed a separate, dissenting opinion.

3
 SUPREME COURT OF NEW JERSEY
A-94 September Term 2011
069327

GEORGE C. RILEY,

Appellant-Respondent,

v.

NEW JERSEY STATE PAROLE
BOARD,

Respondent-Appellant.

Argued January 7, 2014 – Decided September 22, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 423 N.J. Super. 224 (2011).

Lisa A. Puglisi, Assistant Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Ms.
Raksa, Christopher C. Josephson, Deputy
Attorney General, and Mary Beth Wood, Senior
Deputy Attorney General, on the briefs).

Stephen M. Orlofsky argued the cause for
respondent (Blank Rome, attorneys; Mr.
Orlofsky, Andrew J. Hughes, and Rachel J.
Gallagher, on the briefs).

Alexander R. Shalom argued the cause for
amici curiae American Civil Liberties Union
of New Jersey and New Jersey Office of the
Public Defender (Alison S. Perrone,
attorney).

George C. Riley submitted a letter brief pro
se.

1
 JUSTICE ALBIN delivered the opinion of the Court.

A well-established principle of ancient origin is that the

legislature cannot increase the punishment for a crime after it

has been committed. This simple principle -- that after-the-

fact laws cannot raise the punishment for earlier committed

conduct -- is embodied in the Ex Post Facto Clauses of both the

Federal and New Jersey Constitutions, U.S. Const. art. I, § 10;

N.J. Const. art. IV, § 7, ¶ 3.

In 2009, George C. Riley, then seventy-six years old,

completed serving the entirety of his twenty-year sentence for

aggravated sexual assault. On his release from prison, Riley

was under no form of parole supervision, although he was

required to comply with the registration and notification

provisions of Megan’s Law, N.J.S.A. 2C:7-1 to -11. Six months

later, the New Jersey Parole Board advised Riley that he was

subject to the Sex Offender Monitoring Act (SOMA), N.J.S.A.

30:4-123.89 to -123.95 -- a law passed in 2007, more than twenty

years after Riley committed his last offense. Riley was told

that he would have to wear an ankle bracelet twenty-four hours a

day for the rest of his life, that his movements would be

tracked continuously by global positioning system (GPS)

satellites, and that he would be assigned a monitoring parole

officer to whom he would have to report and give access to his

home. This monitoring program placed restrictions on Riley’s

2
freedom to travel, and his failure to comply with the program

would subject him to prosecution for a third-degree crime.

Before the Parole Board, Riley claimed that the retroactive

application of SOMA to him, based on his 1986 conviction,

violated the bar against ex post facto laws. He contended that

the new law is a form of parole supervision for life, an

additional punishment imposed after he completed his sentence.

The Chairman of the Parole Board rejected Riley’s challenge,

explaining that he was carrying out the mandate of the statute.

The Appellate Division reversed in a split decision, finding

that the retroactive application of SOMA to Riley based on his

1986 conviction constituted punishment under both the Federal

and State Ex Post Facto Clauses.

We now affirm. Parole is a form of punishment under the

Constitution. SOMA is essentially parole supervision for life

by another name. Riley is under constant electronic monitoring

by the Parole Board even though he has completed his sentence

for a crime that predated SOMA. The 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. Accordingly, when

applied to Riley, SOMA violates both the federal and state

constitutional guarantees against ex post facto laws.

I.

3
 A.

The facts of this case are generally not in dispute. In

September 1986, George Riley was convicted of the second-degree

attempted sexual assault of a minor that he committed earlier

that year, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-

2(b). In light of his previous sexual-offense convictions,

Riley was sentenced to an extended term of twenty years subject

to a ten-year parole-ineligibility period, consecutive to a term

of imprisonment imposed for a violation of his parole. At the

time, New Jersey law did not provide for the imposition of

parole supervision for life for sexual offenses.

Riley completed the entirety of his sentence in prison. On

his release in February 2009, he was not subject to any form of

parole supervision. Riley was, however, subject to the

registration and notification requirements of Megan’s Law. In

July 2009, the Superior Court conducted a Megan’s Law hearing

for the purpose of determining the extent of community

notification. The court placed Riley in Tier 3 -- the highest

risk category for sexual offenders -- requiring Internet

registration and the most comprehensive degree of community

notification. See N.J.S.A. 2C:7-8(c)(3); N.J.S.A. 2C:7-

13(b)(1). The Tier 3 scoring was based primarily on Riley’s

previous sexual-offense convictions. Megan’s Law registration

4
and notification requirements do not place an offender under

parole supervision.

In August 2009, Riley received notification from the New

Jersey State Parole Board that he was subject to GPS monitoring

under SOMA. Under protest, Riley signed the Notice of

Conditions for the GPS Monitoring Program. The Notice set forth

the following requirements:

1. You shall initially meet with the
assigned monitoring Parole Officer for
installation of the GPS monitoring
equipment.

2. You shall insure that the GPS tracking
device is charged to its capacity on a daily
basis and maintain the GPS tracking device
in a charged mode whenever you leave your
residence.

3. You shall provide immediate notice to the
assigned monitoring Parole Officer if the
GPS tracking device becomes inoperable.

4. You shall not tamper with, remove or
damage or attempt to tamper with, remove or
damage any of the GPS monitoring equipment
installed at your residence, attached to
your person or required to be carried by
you.

5. You shall be responsible for the cost of
repair and/or replacement of any of the GPS
monitoring equipment that is lost or
damaged.

6. You shall maintain and exercise
continuous physical control over the GPS
tracking device whenever you leave your
residence.

5
 7. You shall provide access to your
residence at reasonable times to enable the
assigned monitoring Parole Officer to
perform required maintenance and/or
diagnostics of the GPS monitoring equipment.

8. You shall provide immediate access to
your residence whenever the assigned
monitoring Parole Officer is required to
investigate a report of non-compliance with
a condition of the monitoring program.

9. You shall provide notice to the assigned
monitoring Parole Officer not less than ten
days prior to any change in your residence.

10. You shall provide notice to the assigned
monitoring Parole Officer prior to any
travel outside of the State of New Jersey.

11. You shall provide the assigned
monitoring Parole Officer with:

a. the name, address and physical
location of your current employment.

b. notice of any change in your
employment or employment location
within 24 hours of the change
occurring.

c. your scheduled hours of work on a
weekly basis.

The Notice also advised Riley that failure to comply with the

conditions constituted a third-degree crime, exposing him to a

maximum term of imprisonment of five years and a maximum fine of

$15,000.

The assigned parole officer attached a light-weight, two-

inch by one-and-one-half-inch transmitter to Riley’s ankle using

a rubber strap. Riley is required to wear the transmitter at

6
all times.1 At first, when away from home, Riley was required to

carry a cell-phone-sized tracking unit that is clipped to a

belt. In June 2013, Riley was given an updated GPS device,

combining the transmitter and tracking device into a single

ankle bracelet. This new unit is larger and heavier than the

old one. On the new device, only pre-recorded messages can be

sent to Riley. When receiving a message, Riley must place his

finger on a sensor and then the message is broadcast over the

device’s speaker, wherever he may be. These messages include,

“call your officer,” “please pay your fines immediately,” and

“report to the office immediately.” The new ankle unit must be

plugged into an electrical outlet to be charged. During

charging, Riley’s movements are limited to the length of the

cord. The tracker must be charged through an electrical outlet

one to two hours every day.2

The parole officer monitoring Riley can log into a website,

pinpoint his location on a map, and determine whether he is

moving and, if so, at what speed and in what direction. The

1 The Appellate Division noted, based on the submissions before
it, that Riley, “who is seventy-seven years old, complains that
this bracelet causes his leg to swell at night and is very
uncomfortable when he sleeps or wears certain shoes.” Riley v.
N.J. State Parole Bd., 423 N.J. Super. 224, 239 (App. Div.
2011).

2 Riley complains that the new device “feels like a weight,”
causes him pain while sleeping, and will cause him shame and
humiliation when he receives a message in a public place.

7
effectiveness of this tracking mode depends on the satellite and

wireless-communication reception at a particular location.

Riley, however, is required to notify his parole officer if his

tracking device becomes inoperable.

Riley was advised through a New Jersey Parole Board

“Participant Information” statement that the “GPS monitoring

program is staffed by [p]arole [o]fficers at all times” and that

he can reach his parole officer at the District Office telephone

number or the officer’s cell number.

B.

Riley filed an appeal with the Parole Board, challenging

the imposition of the SOMA requirements six months after he

“made a successful adjustment into the community without any

incident.” He characterized the GPS monitoring program as

nothing less than parole supervision for life -- a parole

requirement for certain sex offenders that post-dated his crime.

Riley claimed that the Parole Board arbitrarily extended his

sentence after he had completed serving it, in violation of the

Ex Post Facto and the Double Jeopardy Clauses of the United

States Constitution and the Ex Post Facto Clause of the New

Jersey Constitution.

The Chairman of the Parole Board wrote to Riley that as a

result of his Tier 3 designation, his “placement [in] the Sex

Offender G.P.S. Monitoring Program is mandated by statute” and

8
that his failure to comply with the program’s rules and

regulations would constitute a third-degree crime.

Riley appealed.

II.

A.

The Appellate Division, in a split decision, reversed the

Parole Board and held that the retroactive application of SOMA

to sex offenders who committed their crimes before passage of

the Act violates the Ex Post Facto Clauses of the Federal and

State Constitutions. Riley, supra, 423 N.J. Super. at 228.

Writing for the two-person majority, Judge Skillman initially

found that the retroactive application of SOMA to Riley based on

his 1986 crime “‘change[d] the legal consequences of acts

completed before [SOMA’s] effective date,’” (quoting

Commonwealth v. Cory, 911 N.E.2d 187, 192 (Mass. 2009)), thus

requiring an analysis under the Ex Post Facto Clause. Id. at

232-34. The majority then applied the ex post facto test set

forth in Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1147,

155 L. Ed. 2d 164, 176 (2003). Riley, supra, 423 N.J. Super. at

237.

The majority accepted that the Legislature’s intent in

passing SOMA was to create “a civil scheme that is primarily

regulatory” in nature. Ibid. The majority, however, determined

that the adverse effects of SOMA were so punitive that they

9
“constitute[d] retroactive punishment prohibited by the Ex Post

Facto Clause.” Id. at 238. Judge Skillman focused on two of

the seven factors listed in Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168, 83 S. Ct. 554, 567, 9 L. Ed. 2d 644, 661 (1963),

which should be considered in determining whether a statute is

punitive in effect. Riley, supra, 423 N.J. Super. at 239. The

majority asserted that SOMA subjects its participants to

“disabilities and restraints” similar to those that have

“historically been regarded as a punishment,” and certainly

similar to those found in parole, “a form of punishment that

cannot be retroactively imposed or extended without violating

the Ex Post Facto Clause.” Id. at 241 (citations and internal

quotation marks omitted).

Judge Parrillo dissented, finding no ex post facto

violation in applying SOMA to Riley. Id. at 246. Judge

Parrillo maintained that the Legislature clearly expressed its

“intent to create a civil regulatory scheme” in passing SOMA,

and that Riley failed to establish that SOMA’s “effects are

sufficiently punitive to transform its civil remedy into

criminal punishment.” Id. at 258. He applied the Mendoza-

Martinez factors in coming to that conclusion. Id. at 248-58.

In his view, the attachment of a GPS monitoring device to

Riley is far less intrusive than either involuntary commitment

under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to

10
-27.38, or the registration and notification procedures of

Megan’s Law, N.J.S.A. 2C:7-1 to -11, both of which have been

held to be nonpunitive. Id. at 248-49. Judge Parrillo also

reasoned that the GPS monitoring program “is sufficiently

distinguishable from probation, parole or supervised release so

as not to come within the constitutional ex post facto

proscription.” Id. at 252. Judge Parrillo was persuaded that

“there is a rational relationship between New Jersey’s GPS

program and the non-punitive purpose of protecting the public”

and that SOMA’s “‘sanction’ is not excessive in relation to its

non-punitive objective merely because its duration is lifelong.”

Id. at 254–55. He submits that SOMA’s “technologically advanced

method of tracking sex offenders has no historical antecedent”

that would suggest its retroactive application violates the

prohibition against ex post facto laws. Id. at 257-58.

B.

The Parole Board filed a notice of appeal as of right as a

result of the dissent in the Appellate Division. See R. 2:2-

1(a). The sole issue on appeal as of right is whether SOMA,

when retroactively applied to Riley based on his 1986 offense,

is punitive in effect and therefore violative of the Ex Post

Facto Clause. We also granted the Parole Board’s petition for

certification, 209 N.J. 596 (2012), in which the Board claims

that SOMA, passed in 2007, was triggered by Riley’s 2009 Tier 3

11
Megan’s Law designation and therefore was not applied

retroactively. We also granted the motions of the American

Civil Liberties Union of New Jersey and the New Jersey Office of

the Public Defender to participate as amici curiae.

III.

A.

The Parole Board argues that ex post facto concerns are not

raised in this case because SOMA was triggered by Riley’s Tier 3

classification in 2009 -- a determination of his “present

dangerousness” -- not by his 1986 offense. From that reasoning,

the Parole Board concludes that SOMA was not retroactively

applied to Riley. Alternatively, the Parole Board asks this

Court to reverse based on “the sound reasoning” of Judge

Parrillo’s dissent. It believes that the majority erred by

finding that the punitive effect of SOMA violated the Federal

and State Ex Post Facto Clauses despite the “Legislature’s civil

remedial purpose” in passing SOMA. It criticizes the majority

for focusing on only two of the seven Mendoza-Martinez factors.

It submits that “[t]he relatively minor inconveniences of the

monitoring bracelet and tracker are not more onerous than the

requirements of such regulatory schemes” as Megan’s Law,

N.J.S.A. 2C:7-1 to -11, and the Sexually Violent Predator Act,

N.J.S.A. 30:4-27.24 to -27.38, which, when retroactively

12
applied, have been held not to run afoul of the ex post facto

prohibition.

B.

Riley contends that SOMA imposes “affirmative disabilities

and restraints” similar to those “that have historically been

regarded as punishment,” and that the retroactive application of

SOMA to Riley violates the Ex Post Facto Clauses of both the

Federal and State Constitutions. Riley rejects the Parole

Board’s argument that SOMA was triggered by his Tier 3 sex-

offender classification and not by his 1986 conviction. Riley

insists that the direct antecedent for his involuntary

participation in the GPS monitoring program is his 1986

conviction.

Riley also argues that SOMA is punitive for the same

reasons that this Court declared that the community supervision

for life statute is punitive: “it ‘significantly restricts the

manner in which an individual may pursue his daily life’”

(quoting State v. Schubert, 212 N.J. 295, 306 (2012)). Riley

details the punitive effects of wearing a tracking device

attached to his body twenty-four hours a day and the

requirements that he report to and be supervised by an assigned

parole officer mandated by SOMA. He describes a regime of

“continuous surveillance . . . akin to an electronic form of

parole.” Because SOMA places him on the equivalent of parole

13
supervision for life, Riley concludes that the retroactive

application of the statute is a proscribed ex post facto law.3

C.

Amici curiae American Civil Liberties Union of New Jersey

and the New Jersey Office of the Public Defender maintain that

SOMA imposes conditions akin to parole -- a twenty-four-hour

electronic guard, burdensome intrusions into Riley’s life, and

restraints on his freedom of travel -- and applies those penal

3 Riley advances two additional arguments that are not before
this Court. He asserts that the Parole Board’s GPS monitoring
program is an administrative regulatory regime that was not
adopted in accordance with the Administrative Procedure Act,
N.J.S.A. 52:14B-1 to -15, and therefore is void. Riley did not
raise this issue before the Appellate Division, nor did he seek
certification of this issue. We therefore will not address the
issue.

Riley also asserts that “SOMA’s text, structure, and
implementing procedures . . . establish that SOMA was intended
to be punitive” and therefore is an ex post facto law as applied
to him. We choose not to address this issue. We are limited to
the issues raised in Judge Parrillo’s dissent and in the Parole
Board’s petition for certification. The members of the
appellate panel agreed that the Legislature’s intent in passing
SOMA was to establish a civil, regulatory scheme; they disagreed
only about whether SOMA’s effects were punitive in nature. See
R. 2:2-1(a)(2) (permitting appeals from “final judgments as of
right . . . in cases where, and with regard to those issues as
to which, there is a dissent in the Appellate Division”);
Gilborges v. Wallace, 78 N.J. 342, 349 (1978) (“[W]here there is
a dissent in the Appellate Division, the scope of the appeal . .
. is limited to those issues encompassed by the dissent.”); R.
2:2-1(b) (permitting appeals on certification).

We note that, since Riley filed his brief, the Parole Board
adopted administrative regulations governing SOMA. 46 N.J.R.
79(b) (Jan. 6, 2014) (codified at N.J.A.C. 10A:72-11.5). We do
not pass any judgment on those regulations.
14
conditions to an individual whose offense predates the enactment

of SOMA by decades. Amici, like Riley, insist that this

retroactive increase of the penal consequences after an offense

was completed and after the sentence was served violates “the

constitutional proscription against ex post facto laws.”

IV.

We must determine whether the 2007 Sex Offender Monitoring

Act (SOMA), N.J.S.A. 30:4-123.89 to -123.95, when applied to an

individual whose offense was completed before its enactment,

violates the constitutional prohibition on ex post facto laws.

We begin with a review of SOMA and its regulatory scheme.

SOMA directs the Chairman of the Parole Board, “in

consultation with the Attorney General, [to] establish a program

for the continuous, satellite-based monitoring of sex

offenders,” N.J.S.A. 30:4-123.92, “24 hours per day, seven days

per week,” N.J.S.A. 30:4-123.90. Those sex offenders subject to

SOMA include any “person whose risk of reoffense has been

determined to be high” -- that is, determined to be within the

Tier 3 risk under Megan’s Law, N.J.S.A. 2C:7-8. N.J.S.A. 30:4-

123.91(a)(1). In July 2009, at a Megan’s Law hearing, the

Superior Court determined that Riley scored in the Tier 3

category based primarily on his 1986 attempted sexual assault

and other previous sexual-offense convictions, making him

15
automatically subject to GPS monitoring under SOMA. See

N.J.S.A. 30:4-123.91(a)(1).

The statute’s monitoring system provides for the

“continuous” geographical tracking of an offender based on

satellite GPS and other technology, for “law enforcement

agencies to compare the [location of offenders] with reported

crime incidents,” and for the Parole Board to determine on a

twenty-four-hour basis whether an offender is in compliance with

the program’s conditions. N.J.S.A. 30:4-123.92(b), (c). The

Parole Board Chairman is authorized to promulgate guidelines to

effectuate the program. N.J.S.A. 30:4-123.92(d). Noncompliance

with the conditions of the program is punishable as a third-

degree crime. N.J.S.A. 30:4-123.95.

In 2014, the Parole Board promulgated regulations defining

the conditions of GPS monitoring under SOMA, which are

essentially the same as the Notice of Conditions given to Riley

in August 2009. N.J.A.C. 10A:72-11.5. We already have

described the burdens and restraints placed on Riley resulting

from the GPS monitoring program that began with the permanent

attachment of a tracking device to his ankle six months after he

had completed the entirety of his criminal sentence.

We next turn to the Ex Post Facto Clause jurisprudence.

V.

A.

16
 The United States Constitution and the New Jersey

Constitution both prohibit the State Legislature from passing an

“ex post facto law.” U.S. Const. art. I, § 10; N.J. Const. art.

IV, § 7, ¶ 3. The New Jersey Ex Post Facto Clause is

interpreted in the same manner as its federal counterpart. Doe

v. Poritz, 142 N.J. 1, 42 (1995). The Ex Post Facto Clause

furthers two primary goals. It assures that individuals can

rely on laws until they are “‘explicitly changed,’” and it

restricts the government from passing “‘potentially vindictive

legislation.’” Carmell v. Texas, 529 U.S. 513, 566, 120 S. Ct.

1620, 1650, 146 L. Ed. 2d 577, 614-15 (2000) (quoting Weaver v.

Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L. Ed. 2d

17, 23 (1981)).

The Ex Post Facto Clause proscribes “[e]very law that

changes the punishment, and inflicts a greater punishment, than

the law annexed to the crime, when committed.” Calder v. Bull,

3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798). Stated

slightly differently, “any statute . . . which makes more

burdensome the punishment for a crime, after its commission, . .

. is prohibited as ex post facto.” Beazell v. Ohio, 269 U.S.

167, 169-70, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925). These

formulations, which are “faithful to our best knowledge of the

original understanding of the Ex Post Facto Clause,” simply bar

a legislature from “retroactively alter[ing] the definition of

17
crimes or increas[ing] the punishment for criminal acts.”

Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715, 2719,

111 L. Ed. 2d 30, 39 (1990).

B.

Two findings must be made for a law to violate the ex post

facto prohibition. A court must first determine that the law is

“retrospective.” Miller v. Florida, 482 U.S. 423, 430, 107 S.

Ct. 2446, 2451, 96 L. Ed. 2d 351, 360 (1987) (citation and

internal quotation marks omitted).4 A law is retrospective if it

“‘appl[ies] to events occurring before its enactment’” or “if it

‘changes the legal consequences of acts completed before its

effective date.’” Ibid. (quoting Weaver, supra, 450 U.S. at 29,

31, 101 S. Ct. at 964, 965, 67 L. Ed. 2d at 24). Second, the

court must determine whether the law, as retrospectively

applied, imposes additional punishment to an already completed

crime. Kansas v. Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072,

2086, 138 L. Ed. 2d 501, 520 (1997) (citation omitted).

Assuming that a statute is intended to apply retroactively,

determining whether the statute imposes punishment requires a

two-part evaluation under the Ex Post Facto Clause. Smith,

supra, 538 U.S. at 92, 123 S. Ct. at 1146-47, 155 L. Ed. 2d at

176. First, a court must assess whether the Legislature

4 Courts use the terms “retrospective” and “retroactive”
interchangeably.
18
intended “to impose punishment.” Id. at 92, 123 S. Ct. at 1147,

155 L. Ed. 2d at 176. If the court finds that the Legislature

had a punitive intent, “that ends the inquiry.” Ibid.

However, even if the Legislature’s “intention was to enact

a regulatory scheme that is civil and nonpunitive, [the court]

must further examine whether the statutory scheme is so punitive

either in purpose or effect as to negate the State’s intention

to deem it civil.” Ibid. (alteration, citation, and internal

quotation marks omitted). To determine the “effects” of a

statute for ex post facto purposes, the United States Supreme

Court found “as a useful framework” seven factors referred to in

Mendoza-Martinez, a case involving a double jeopardy challenge.

Id. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 179.

The Supreme Court in Smith focused on the five Mendoza-

Martinez factors “most relevant” to its analysis of whether the

“effects” of the Alaska Sex Offender Registration Act imposed a

retroactive punishment violative of the Ex Post Facto Clause.

Id. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 180.5 The

5 In Poritz, supra, we declined to utilize the Mendoza-Martinez
factors in deciding the ex post facto challenge to Megan’s Law.
142 N.J. at 72. Since our 1996 decision in Poritz, the United
States Supreme Court issued Smith, supra, applying the Mendoza-
Martinez factors in analyzing the constitutionality of Alaska’s
version of Megan’s Law under the Ex Post Facto Clause. 538 U.S.
at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 179. Because we
have acknowledged that there is no difference in the
interpretation of the Ex Post Facto Clause under federal and
19
Supreme Court looked to whether the sex-offender registry scheme

“in its necessary operation” (1) “has been regarded in our

history and traditions as a punishment”; (2) “imposes an

affirmative disability or restraint”; (3) “promotes the

traditional aims of punishment”; (4) “has a rational connection

to a nonpunitive purpose”; or (5) “is excessive with respect to

this purpose.” Ibid.6 These factors are considered “useful

guideposts” and not an “exhaustive [or] dispositive” list. Id.

at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 179-80 (citations

and internal quotation marks omitted). Each factor does not

necessarily receive the same weight.

Applying those factors in Smith, the Court upheld Alaska’s

sex offender registration and notification statute against an ex

post facto challenge, finding that it was a civil regulatory

scheme with nonpunitive effects. The Court concluded that the

statute did not impose physical restraints on sex offenders,

left them free to “change jobs [and] residences,” and “to move

where they wish and to live and work as other citizens, with no

supervision.” Id. at 100-01, 123 S. Ct. at 1151-52, 155 L. Ed.

state law, we follow the reasoning of Smith, the most recent
exposition on the Clause.
6 In the ex post facto analysis in Smith, supra, the Supreme
Court determined that two of the seven Mendoza-Martinez factors
“are of little weight”: whether the relevant behavior is
already a crime and whether the regulation requires a finding of
scienter. 538 U.S. at 105, 123 S. Ct. at 1154, 155 L. Ed. 2d at
185.
20
2d at 181-82 (emphasis added). The Court observed that the

registration and notification law imposed obligations “less

harsh than the sanctions of occupational debarment, which [the

Court has] held to be nonpunitive.” Id. at 100, 123 S. Ct. at

1151, 155 L. Ed. 2d at 181.

In an earlier case, the Supreme Court determined that the

retroactive application of a Kansas statute allowing for the

civil commitment of sexually violent predators did not violate

the Ex Post Facto Clause. Hendricks, supra, 521 U.S. at 371,

117 S. Ct. at 2086, 138 L. Ed. 2d at 520-21. Under the Kansas

statute, commitment of a convicted offender occurs only if the

State shows that he “suffers from a mental abnormality or

personality disorder which makes [him] likely to engage in the

predatory acts of sexual violence.” Id. at 357, 117 S. Ct. at

2080, 138 L. Ed. 2d at 512 (citation and internal quotation

marks omitted). Commitment is permitted, regardless of the date

of the predicate offense, based on a court’s determination of

current dangerousness to the public. Id. at 371, 117 S. Ct. at

2086, 138 L. Ed. 2d at 520. Significantly, however, a person

cannot be “confined any longer than he suffers from a mental

abnormality rendering him unable to control his dangerousness,”

and he is entitled to yearly reviews at which the State bears

the burden of justifying continued commitment. Id. at 364, 117

S. Ct. at 2083, 138 L. Ed. 2d at 516. The Court in Hendricks

21
found that the statute did not constitute “punishment” under the

Ex Post Facto Clause, in part because the sexually violent

predator law was comparable to traditional involuntary civil

commitment of those suffering from a mental illness. Id. at

369-71, 117 S. Ct. at 2086, 138 L. Ed. 2d at 520.7 According to

the Court, “historically,” such “nonpunitive detention” of the

dangerous mentally ill has not been considered to be punishment.

Id. at 363, 117 S. Ct. at 2083, 138 L. Ed. 2d at 516.

In contrast to the statutes in Smith and Hendricks that are

denominated as nonpunitive and civil in nature, parole and

probation have historically been viewed as punishment. See

Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164, 3168,

97 L. Ed. 2d 709, 717 (1987) (“Probation, like incarceration, is

‘a form of criminal sanction imposed by a court upon an offender

. . . .’” (quoting George G. Killinger et al., Probation and

Parole in the Criminal Justice System 14 (1976))); United States

v. Dozier, 119 F.3d 239, 242 (3d Cir. 1997) (“Supervised release

is punishment; it is a deprivation of some portion of one’s

liberty imposed as a punitive measure for a bad act.”); State v.

Bowditch, 700 S.E.2d 1, 8 (N.C. 2010) (“An offender’s period of

parole or probation, and its attendant State supervision,

historically have been considered a form of criminal

7 In Hendricks, the Supreme Court did not strictly adhere to the
Mendoza-Martinez framework.
22
punishment.”). That parole is “in legal effect imprisonment” is

well established. See Anderson v. Corall, 263 U.S. 193, 196, 44

S. Ct. 43, 44, 68 L. Ed. 247, 254 (1923) (stating that although

parole is “an amelioration of punishment, it is in legal effect

imprisonment”); see also United States ex rel. Nicholson v.

Dillard, 102 F.2d 94, 96 (4th Cir. 1939) (stating that parole is

“imprisonment in legal effect”).

Significantly, the Court in Smith, supra, differentiated

between Alaska’s sex-offender registry scheme and probation and

supervised release. 538 U.S. at 101, 123 S. Ct. at 1152, 155 L.

Ed. 2d at 182. The Court noted that, unlike the registration

and notification law, probation or supervised release curtailed

an individual’s right “to live and work as other citizens”

without supervision and imposed “a series of mandatory

conditions [that] allow the supervising officer to seek the

revocation of probation or release in case of infraction.”

Ibid.

Community supervision for life and its corollary parole

supervision for life are merely indefinite forms of parole. We

have ruled that community supervision for life “is punitive

rather than remedial.” Schubert, supra, 212 N.J. at 308. We

came to that conclusion despite the fact that “one of the

purposes of community supervision for life is to protect the

public from recidivism by defendants convicted of serious sexual

23
offenses.” Id. at 307-08 (citation and internal quotation marks

omitted). As we noted in Schubert, “one of the purposes of

incarceration” is public safety, id. at 308, yet no one would

seriously argue that -- outside of civil-commitment detention --

imprisonment is nonpunitive because of the remedial benefits of

deterrence and safety to the public.

In Schubert, supra, we determined that a trial court could

not amend a sexual offender’s judgment of conviction to impose

community supervision for life, N.J.S.A. 2C:43-6.4 (now called

parole supervision for life, L. 2003, c. 267), four years after

the offender had successfully completed his probationary

sentence. 212 N.J. at 300-01, 313. We concluded in Schubert

that increasing a sentence after the defendant has completed

serving it “is a violation of a defendant’s fundamental rights

under the Double Jeopardy Clauses of the United States and New

Jersey Constitutions.” Id. at 313. What constitutes punishment

is no different under either a double jeopardy or ex post facto

analysis.8 Hendricks, supra, 521 U.S. at 369–71, 117 S. Ct. at

2085-86, 138 L. Ed. 2d at 519-21 (holding that because

“commitment under the [Kansas Sexually Violent Predator Act] is

not tantamount to ‘punishment,’” it does not violate either

8 For this reason, SOMA as applied retroactively to Riley
arguably violates the Double Jeopardy Clauses, U.S. Const.
amend. V; N.J. Const. art. 1, ¶ 11, as imposition of community
supervision for life did in Schubert.
24
Double Jeopardy Clause or Ex Post Facto Clause); see also Smith,

supra, 538 U.S. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 179

(noting that Mendoza-Martinez factors originated in double

jeopardy jurisprudence and “migrated into our ex post facto case

law”).

C.

Courts in other jurisdictions have addressed whether GPS

monitoring of sex offenders constitutes punishment for ex post

facto purposes, with varying results. In Cory, supra, the

Massachusetts Supreme Judicial Court declared that a law

requiring the mandatory GPS monitoring of sex offenders already

on probation was “punitive in effect” and therefore violated the

Ex Post Facto Clause. 911 N.E.2d at 197. The court weighed the

Mendoza-Martinez factors in reaching that outcome. Id. at 195-

97. The court found that “[t]he GPS device burden[ed] liberty .

. . by its permanent, physical attachment” and “its continuous

surveillance,” and found that the device was “dramatically more

intrusive and burdensome” than a yearly registration

requirement. Id. at 196. The court observed that in “no

context other than punishment” does the state physically attach

-- for a period of years under threat of imprisonment -- a

device “without consent and also without consideration of

individual circumstances.” Id. at 196. The attachment of a GPS

25
monitoring device, according to the court, “is a serious,

affirmative restraint.” Ibid.

In contrast to Cory, in Doe v. Bredesen, the United States

Court of Appeals for the Sixth Circuit upheld, against an ex

post facto challenge, the Tennessee Serious and Violent Sex

Offender Monitoring Pilot Project Act, which “authorized the

Tennessee Board of Probation and Parole . . . to subject a

convicted sexual offender to a satellite-based monitoring

program for the duration of his probation.” 507 F.3d 998, 1000

(6th Cir. 2007) (emphasis added).

Importantly, unlike the defendants in Cory and Bredesen,

Riley had completed the entirety of his sentence and was under

no form of supervised release at the time the State subjected

him to a regime of GPS monitoring. In Cory and Bredesen, GPS

monitoring became an additional condition to an ongoing

probation. We do not suggest that GPS monitoring may not be

added as a condition of parole supervision that is ongoing --

that is, while the offender is still serving his sentence.

Bowditch, supra, 700 S.E.2d 1, is clearly at odds with Cory

and the Appellate Division majority in this case. There, the

North Carolina Supreme Court 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. Id. at 3. The majority ruled that the statute

26
as a whole was “enacted with the intent to create a civil

regulatory scheme” and did not violate the Ex Post Facto Clause.

Id. at 13. A three-person dissent sharply disagreed with the

majority, finding that “[t]he physical and practical realities

of the [GPS monitoring] program . . . transform the effect of

the scheme from regulatory to punitive.” Id. at 21 (Hudson, J.,

dissenting).

VI.

We now apply the principles enunciated in ex post facto

jurisprudence to the case before us. Initially, it is important

to note the scenarios not implicated here. This is not a case

about a defendant who committed a crime after the passage of

SOMA or about a defendant who was subjected to the additional

condition of GPS monitoring for the duration of his probation or

parole. The only question we address is whether a defendant who

committed a past offense and completed his sentence before

enactment of SOMA can be subjected to the Parole Board’s regime

of GPS monitoring.

A.

The Parole Board argues that the 2007 Sexual Offense

Monitoring Act was not applied retroactively to Riley’s 1986

commission of attempted sexual assault, but prospectively to

Riley’s Megan’s Law Tier 3 high-risk designation in 2009. The

Board contends that the Tier 3 designation -- not the offense

27
conduct -- triggered the GPS monitoring and therefore the

retroactivity issue is illusory. We reject that argument, as

did all members of the appellate panel. Riley, supra, 423 N.J.

Super. at 232-34.

The Board’s reasoning is not supported by United States

Supreme Court jurisprudence. In Johnson v. United States, the

Supreme Court engaged in an ex post facto retroactivity analysis

of a new law that permitted the extension of a period of

supervised release. 529 U.S. 694, 697-701, 120 S. Ct. 1795,

1799-1801, 146 L. Ed. 2d 727, 734-36 (2000). The new law was

enacted after the defendant committed the offense for which he

was placed on supervised release but before the defendant

violated the terms of his earlier-imposed supervised release.

Id. at 698, 120 S. Ct. at 1799, 146 L. Ed. 2d at 734. The

Supreme Court made clear that penalties that “relate to the

original offense” are applied retroactively. Id. at 701, 120 S.

Ct. at 1801, 146 L. Ed. 2d at 736. Because the “postrevocation

penalties relate[d] to the original offense,” an additional term

of supervised release under the new law would have applied

retroactively. Ibid.

In Poritz, supra, when conducting an ex post facto analysis

of the newly enacted Megan’s Law, which included a community-

notification requirement determined by tier designation, we

looked to the date of the original offense as the triggering

28
event. See 142 N.J. at 20. Had we selected the tier

determination as the starting point, a retroactivity analysis

would have been unnecessary. Similarly, by the Parole Board’s

reasoning, the United States Supreme Court needlessly conducted

an ex post facto analysis in Smith.

Riley’s Tier 3 designation was based on his 1986 conviction

and other prior sexual offense convictions. At the Megan’s Law

hearing, the court made no independent assessment of Riley’s

current dangerousness unrelated to his prior convictions. The

predicate events responsible for Riley’s current regime of GPS

monitoring are his 1986 sexual offense and earlier offenses, and

therefore the question is whether SOMA can retroactively apply

to completed conduct without offending the Constitution.

B.

For purposes of our ex post facto analysis, we accept that

the Legislature, in passing SOMA, intended to enact a remedial,

regulatory scheme that was civil and nonpunitive in nature.

“[O]nly the clearest proof will suffice to override legislative

intent and transform what has been denominated a civil remedy

into a criminal penalty.” Hudson v. United States, 522 U.S. 93,

100, 118 S. Ct. 488, 493, 139 L. Ed. 2d 450, 459 (1997)

(citation and internal quotation marks omitted). After finding

that Riley did not present such proof, the appellate panel

unanimously concluded that “the Sex Offender Monitoring Act’s

29
express legislative objectives reflect a civil scheme that is

primarily regulatory in intent.” Riley, supra, 423 N.J. Super.

at 237. No appeal was taken from that determination.

VII.

The issue is whether, despite the remedial intent of the

Legislature, SOMA’s adverse effects are “so punitive either in

purpose or effect as to negate the State’s intent to deem it

only civil and regulatory.” Smith, supra, 538 U.S. at 92, 123

S. Ct. at 1147, 155 L. Ed. 2d at 176 (alteration, citation, and

internal quotation marks omitted). In other words, if the real

world effects of the twenty-four-hour GPS monitoring regime on

Riley’s life are unmistakably punitive in nature, the Ex Post

Facto Clause will bar retroactive application of SOMA. This

“adverse effects” analysis requires us to turn to the five

Mendoza-Martinez factors considered most relevant by the Supreme

Court in Smith.

A.

The first two of the Mendoza-Martinez factors identified in

Smith weigh most heavily in our analysis. The first factor is

whether “the regulatory scheme[] has been regarded in our

history and traditions as a punishment.” Id. at 97, 123 S. Ct.

at 1149, 155 L. Ed. 2d at 180. The technology that has given

rise to SOMA is of relatively recent origin. There are no

direct historical analogues to a twenty-four-hour-a-day

30
electronic surveillance that can track an individual’s every

movement. Nevertheless, the closest analogue to SOMA is parole

and, more particularly, parole supervision for life.

Riley, now eighty-one years old, having fully completed his

criminal sentence, is under the Parole Board’s supervision and

subject to regulations it has adopted. He has been assigned a

monitoring parole officer. He must notify his parole officer of

any change in residence; of any change in employment, including

work hours and schedule; of plans to travel outside of the

State; and of GPS equipment that is inoperable, lost, or

damaged. He must permit his parole officer to enter his home to

perform equipment maintenance and “to investigate a report of

non-compliance with a condition of the monitoring program.” The

parole officer must be able to monitor Riley twenty-four hours a

day, and to determine when he is moving, at what speed, and in

what direction. Riley must always be available to respond to

messages sent to him through his GPS tracking device. That

requires Riley to have his GPS device charged at all times --

two hours after every sixteen hours of use. He also is

responsible for the cost of its repair. Riley cannot travel

anywhere his GPS device does not operate or where it cannot be

charged within a sixteen-hour period. The failure to comply

with any those conditions constitutes a third-degree crime

punishable by up to five years in prison. N.J.S.A. 30:4-123.94.

31
 This scheme, unlike the reporting and notification

requirements of Megan’s Law, is similar to a form of supervised

release with mandatory conditions that allows a supervising

officer -- such as a parole officer -- to seek revocation of the

release for a violation. Cf. Smith, supra, 538 U.S. at 101, 123

S. Ct. at 1152, 155 L. Ed. 2d at 182. SOMA 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.

SOMA does not share the exact conditions of parole

supervision for life. Cf. N.J.A.C. 10A:71-6.12(d) (defining

conditions of parole supervision for life). In some ways, SOMA

is both more and less onerous than parole supervision for life.

Nevertheless, SOMA plays a role sufficiently similar to allow

the comparison. Moreover, Riley cannot do anything to alter his

Tier 3 (high risk) designation, which is based on his prior

convictions. Unlike the Sexually Violent Predator Act, which

permits for yearly review to determine whether the committee

continues to pose a danger to the public and which allows for

his release if he does not, N.J.S.A. 30:4-27.35 to -27.36, SOMA

ensures that Riley’s future is static -- he is condemned to wear

the electronic monitoring device for the rest of his life.

B.

32
 SOMA, moreover, “imposes an affirmative disability or

restraint” -- the second most important Mendoza-Martinez factor

in our analysis. See Smith, supra, 538 U.S. at 97, 123 S. Ct.

at 1149, 155 L. Ed. 2d at 180. That is evident from our

discussion that SOMA imposes a regime similar to parole. If the

“affirmative disability or restraint” imposed by a law “is minor

and indirect, its effects are unlikely to be punitive.” Id. at

99-100, 123 S. Ct. at 1151, 155 L. Ed. 2d at 181 (citation and

internal quotation marks omitted). On the other end of the

spectrum, if “the affirmative disability or restraint” is direct

and extreme, then the statute’s effects are more likely to be

punitive.

Here, the disabilities and restraints placed on Riley

through twenty-four-hour GPS monitoring enabled by a tracking

device fastened to his ankle could hardly be called “minor and

indirect.” Cf. id. at 100, 123 S. Ct. at 1151, 155 L. Ed. 2d at

181. Riley is tethered to an electronic device that must be

recharged every sixteen hours, and therefore he cannot travel to

places where there are no electrical outlets. In addition to

the requirement that he tell his parole officer before he leaves

the State, Riley cannot travel to places without GPS reception

because his tracker will be rendered inoperable and his parole

officer will be unable to monitor his whereabouts. SOMA clearly

impinges on the “freedom to travel,” which “has long been

33
recognized as a basic right under the Constitution.” See United

States v. Guest, 383 U.S. 745, 758, 86 S. Ct. 1170, 1178, 16 L.

Ed. 2d 239, 249 (1966). SOMA’s grant of authority to parole

officers to gain access to Riley’s home is also an incursion

into Riley’s Fourth Amendment privacy rights. See State v.

Domicz, 188 N.J. 285, 306 (2006) (stating that, generally, if

police do not have warrant, person, “in the familiar

surroundings of his home, can send the police away without fear

of immediate repercussions”). Moreover, the tracking device,

permanently strapped to Riley’s leg, causes pain when he sleeps.

Even though SOMA’s purpose is not to shame Riley, the

“effects” of the scheme will have that result. If Riley were to

wear shorts in a mall or a bathing suit on the beach, or change

clothes in a public locker or dressing room, or pass through an

airport, the presence of the device would become apparent to

members of the public. The tracking device attached to Riley’s

ankle identifies Riley as a sex offender no less clearly than if

he wore a scarlet letter. His parole officer may also send

audible messages to Riley on the tracker that he may receive in

a public place. Unlike the Megan’s Law registration and

notification scheme described in Smith, SOMA’s twenty-four-hour

surveillance of Riley and onerous restrictions deprive him of

freedom of movement and the ability “to live and work as other

34
citizens, with no supervision.” Cf. Smith, supra, 538 U.S. at

100-01, 123 S. Ct. at 1151-52, 155 L. Ed. 2d at 181-82.9

C.

The remaining Mendoza-Martinez factors discussed in Smith

do not alter the ineluctable conclusion that the “effects” of

the continuous GPS global monitoring scheme are punitive in

nature. Whether SOMA “promotes the traditional aims of

punishment” or has a “rational connection to a nonpunitive

purpose,” Id. at 97, 123 S. Ct. at 1149, 155 L. Ed. 2d at 180,

are not decisive factors here. To the extent that SOMA

resembles parole, it necessarily embodies aims commonly

associated with punishment, including deterrence. On the other

hand, “[a]ny number of governmental programs might deter crime

without imposing punishment.” Id. at 102, 123 S. Ct. at 1152,

155 L. Ed. 2d at 183. Rehabilitation too is a factor both in

fashioning a criminal sentence and in certain civil regulatory

schemes, such as the Sexually Violent Predator Act. It is

difficult to see what rehabilitative benefits SOMA might offer

Riley.

9 The Appellate Division dissent and the Board assert that SOMA
is “far less restrictive” than the Sexually Violent Predator
Act. However, the SVPA has a unique historical basis --
involuntary civil commitment. One cannot claim that parole and
probation are not punishment simply because they are less harsh
than civil confinement.
35
 Public safety is a prime consideration in the imposition of

a criminal sentence, Schubert, supra, 212 N.J. at 307-08, yet

public safety is also a driving force for such nonpunitive civil

statutes as Megan’s Law and the Sexually Violent Predator Act.

All in all, these factors are inconclusive in determining

whether the statute is punitive or civil in nature. Id. at 307

(noting that statute will not be classified as “remedial rather

than punitive because the purpose of the statute is to protect

members of the community”).

Last, whether SOMA “is excessive with respect to [its

nonpunitive] purpose,” Smith, supra, 538 U.S. at 97, 123 S. Ct.

at 1149, 155 L. Ed. 2d at 180, necessarily depends on whether it

falls closer on the scale to traditional forms of punishment,

such as parole. The overall objective of SOMA is public safety,

which we have observed is present in both punitive and civil

remedial schemes.

In the end, we conclude that SOMA’s adverse effects are “so

punitive . . . as to negate the State’s intent to deem it only

civil and regulatory.” Id. at 92, 123 S. Ct. at 1147, 155 L.

Ed. 2d at 176 (alteration, citation, and internal quotation

marks omitted); see Bowditch, supra, 700 S.E.2d at 21 (Hudson,

J., dissenting) (“The physical and practical realities of the

[GPS monitoring] program . . . transform the effect of the

scheme from regulatory to punitive.”). The retroactive

36
application of SOMA to George Riley twenty-three years after he

committed the sexual offense at issue and after he fully

completed his criminal sentence violates the Ex Post Facto

Clauses of the United States and New Jersey Constitutions.

VIII.

For the reasons expressed, we affirm the judgment of the

Appellate Division, which held that the retroactive application

of SOMA to George Riley violates the Ex Post Facto Clauses of

the Federal and State Constitutions. We remand to the New

Jersey Parole Board for enforcement of this judgment.

JUSTICE LaVECCHIA and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE ALBIN’s opinion. CHIEF
JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-VINA filed a
separate, dissenting opinion.

37
 SUPREME COURT OF NEW JERSEY
A-94 September Term 2011
069327

GEORGE C. RILEY,

Appellant-Respondent,

v.

NEW JERSEY STATE PAROLE
BOARD,

Respondent-Appellant.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-

VINA, dissenting.

We dissent substantially for the reasons expressed in Judge

Parrillo’s thoughtful dissenting opinion. Riley v. N.J. State

Parole Bd., 423 N.J. Super. 224, 246 (App. Div. 2011) (Parrillo,

P.J.A.D., dissenting).

1
 SUPREME COURT OF NEW JERSEY

NO. A-94 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court

GEORGE C. RILEY,
Appellant-Respondent,
v.
NEW JERSEY STATE PAROLE
BOARD,
Respondent-Appellant.

DECIDED September 22, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Chief Justice Rabner

CHECKLIST AFFIRM/REMAND REVERSE

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 4 3

1