J.I. v. New Jersey State Parole Board(076442)

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).
J.I. v. New Jersey State Parole Board (A-29-15) (076442)
Argued November 7, 2016 -- Decided March 21, 2017
ALBIN, J., writing for a unanimous Court.
The Court considers: (1) whether a total Internet ban imposed on a community supervision for life offender is so
overbroad and oppressive that it serves no rational penological purpose; and (2) whether the New Jersey State Parole Board
improperly denied the offender a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.
J.I. is a sex offender subject to community supervision for life (CSL). In 2003, he pled guilty to one count of
sexual assault and two counts of endangering the welfare of a minor, having admitted that he sexually molested his three
daughters, who ranged from ages six to fourteen. The trial court’s sentence included a term of incarceration and a three-
year period of mandatory parole supervision to begin after his release. The court also imposed a special sentence of CSL,
to follow the parole supervision period. When J.I. was released in 2009, the New Jersey State Parole Board (Parole Board)
informed him that he was prohibited from accessing any social networking service or chat room.
In January 2010, a search of J.I.’s computer revealed that he had visited multiple websites that depicted minors in
the nude and was in possession of photos of minors in the nude. He was not charged with a parole violation, but his sex-
offender treatment provider indicated that the possession of such material was not conducive to his rehabilitation. As a
result, the Parole Board prohibited him from using any Internet-capable device. In October 2010, parole authorities
arrested J.I. for possessing a phone with Internet capability and for using it in that capacity. A Parole Board panel
subsequently found that J.I. had violated the terms of his supervised release by having an Internet-capable device in his
possession and by his earlier accessing pornography and images of nude children. In June 2011, he returned to
confinement where he remained until his release in October 2012.
Before his 2012 release, J.I. was informed that he was to refrain from using any computer or device to create any
social networking profile or to access any social networking service or chat room unless expressly authorized by the
District Parole Supervisor. He otherwise had full Internet access. In 2013, to further his search for employment, J.I.
requested that his District Parole Supervisor modify the social networking condition to allow him to access LinkedIn. His
request was granted, but the District Parole Supervisor prohibited J.I. from accessing the Internet for any reason other than
employment purposes. The District Parole Supervisor justified the near-total Internet ban based on J.I.’s noncompliance,
three years earlier, with the social networking/Internet condition and his accessing of inappropriate websites. On December
11, 2013, a panel of the Parole Board affirmed the near-total Internet blackout.
The District Parole Supervisor subsequently admonished J.I. for visiting non-work-related websites. J.I. appealed
to the Parole Board. Ten days later, he was admonished again, this time for visiting the websites of the church he attended
and “Rent to Own.” On March 7, 2014, J.I. and his counsel met with the District Parole Supervisor and a parole officer.
The District Parole Supervisor stated that J.I. was never permitted to use a computer or access the Internet until he
authorized him to do so and, then, only for work-related purposes. He was prohibited from using the Internet to engage in
any activity except to seek employment. J.I. continued to visit websites unrelated to his employment search and as a result,
his parole officer barred him from using a computer or the Internet for any purpose. In June 2014, a Parole Board panel
affirmed the conditions and denied his request for a hearing. The full Parole Board issued a final agency decision,
affirming the authority of the District Parole Supervisor to bar J.I. from using a computer or Internet-capable device. The
full Parole Board found the restrictions justified because of J.I.’s willful disregard of the prohibition against accessing non-
work-related websites and denied his request for a hearing.
In a published decision, the Appellate Division upheld the Parole Board’s decision. 441 N.J. Super. 564 (2015).
The panel found that the conditions were reasonable in order to reduce the likelihood of his recidivism and consistent with
protecting the public safety and welfare. The Court granted J.I.’s petition for certification. 223 N.J. 555 (2015).
HELD: Arbitrarily imposed Internet restrictions that are not tethered to promoting public safety, reducing recidivism, or
fostering an offender’s reintegration into society are inconsistent with the administrative regime governing CSL offenders.
The complete denial of access to the Internet implicates a liberty interest, which triggers due process concerns. After the
imposition of the total ban for J.I.’s Internet violations, he should have been granted a hearing. The matter is remanded to
the full Parole Board for a hearing in which it must determine whether the total computer and Internet ban serves any
public-safety, rehabilitative, or other penological goal.
1. Access to the Internet is a basic need. Most unemployed workers searching for jobs do so on the Internet and it is
difficult to imagine how a person could function in modern society given a lifetime ban on all forms of computer access and
use. (pp. 17-18)

1
2. Sex offenders on CSL are subject to continued governmental oversight and diminished personal autonomy. One of the
purposes of supervision is to help offenders reintegrate into society. Specific conditions restricting their activities must
bear a reasonable relationship to reducing the likelihood of recidivism and fostering public protection and rehabilitation.
The Parole Board’s Division of Parole is responsible for monitoring CSL offenders. All conditions of CSL must be in
writing and signed by the CSL offender at the time of release from custody. CSL requires that offenders refrain from using
any computer or device to create a social networking profile or to access any social networking service or chat room unless
authorized by the District Parole Supervisor. Requiring that a CSL offender’s history inform the imposition of Internet
special conditions ensures that they bear a reasonable relationship to promoting public safety and fostering rehabilitation.
If the District Parole Supervisor imposes additional special conditions, he must give written notice to the CSL offender and
to the Parole Board. The Board panel must advise the District Parole Supervisor within three working days whether it has
affirmed the imposition of the special condition. Internet conditions should be tailored to the individual CSL offender,
taking into account the underlying offense, the rehabilitative needs of the offender, and public safety. The Legislature
evidently did not intend that a total ban on Internet use should be deployed when less restrictive alternatives can achieve the
goal of public safety and personal rehabilitation. (pp. 18-23)
3. At the time of J.I.’s second release from confinement, the social networking condition was the only restriction on his use
of an Internet-capable device. The District Parole Supervisor was mistaken in his understanding that J.I. was never
authorized to use the Internet upon his release. The District Parole Supervisor had no power to impose restrictions orally or
without the approval of a Board panel. Despite J.I.’s thirteen-month compliance with the Internet conditions attached to his
CSL status, the District Parole Supervisor imposed dramatic restrictions after J.I. requested permission to access a
professional networking site that he believed would improve his prospects for employment. He justified the Internet ban
based on J.I.’s visiting pornography websites more than three years earlier. J.I.’s simple request for a relaxation of the
social networking condition set in motion the imposition of CSL conditions that banished him from nearly all of life’s
activities on the Internet. Ultimately, the near-total ban was transformed into a complete Internet ban. (pp. 23-25)
4. Federal courts have addressed Internet restrictions on supervised offenders with some frequency. The Third Circuit has
upheld a complete ban on internet access, except with prior approval of probation, when offenders have used or have
clearly demonstrated a willingness to use the Internet as a direct instrument of physical harm. However, even in child
pornography cases, the Third Circuit has declined to deny an offender access to email or benign Internet usage when a more
focused restriction, limited to pornography sites and images, can be enforced. (pp. 26-29)
5. J.I. did not use the Internet as a means of committing the offenses for which he was placed on CSL. The record does not
suggest that he ever visited a pornographic or illicit website, or used the Internet in any unlawful way, after his ultimate
release in October 2012. The Court does not condone defendant’s violations of the near-total ban by accessing benign
websites. Nevertheless, the special conditions that have brought about this appeal were overbroad. Concerns about J.I.’s
potential abuse of the Internet could have been addressed through less restrictive means. The condition denying J.I. access
to the Internet for any purpose unrelated to employment was unreasonable because it was not tied to criminal conduct,
rehabilitation, or public safety and because the Parole Board had available less restrictive alternatives than a near-total
Internet ban to achieve its mission. Further, J.I. was entitled to an opportunity to challenge the proposed imposition of the
severely enhanced Internet restrictions. A CSL offender possesses protectible liberty interests and the deprivation of such
interests implicates the minimal requirements of due process. (pp. 30-33)
6. The level of process required will depend on a number of variables, including the timing of and justification for the
Internet restriction, the severity and length of the restriction, whether facts are contested or uncontested, and whether
credibility determinations must be made. The balance of interests weighs in favor of giving a supervised offender the
opportunity to respond to a near-total or absolute Internet ban imposed more than a year after the offender’s release from
confinement. Allowing a CSL offender to file a written submission to a Board panel challenging a District Parole
Supervisor’s modification of an Internet condition is a sensible accommodation to ensure the due process rights of a CSL
offender are consonant with the Parole Board’s regulatory scheme. (pp. 35-37)
7. The absolute restriction on J.I.’s access to the Internet may undermine his rehabilitation and hinder his ability to succeed
as a free agent in society. Although J.I. has not alleged any factual disputes in the record that would suggest the need for an
evidentiary hearing, he is able to submit certifications from his therapist and other relevant sources to the Board’s attention.
The circumstances of this case, however, call for more process. J.I., personally and/or through his attorney, must be given
an opportunity to appear before the Board and be heard. The additional process will not impose an undue administrative
burden, and it may reduce the potential for an erroneous deprivation of a liberty interest. (pp. 37-38)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Parole Board for
further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE ALBIN’S opinion.

2
 SUPREME COURT OF NEW JERSEY
A-29 September Term 2015
076442

J.I.,

Appellant-Appellant,

v.

NEW JERSEY STATE PAROLE
BOARD,

Respondent-Respondent.

Argued November 7, 2016 – Decided March 21, 2017

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 441 N.J. Super. 564 (App. Div.
2015).

Michael C. Woyce argued the cause for
appellant (Murphy & Woyce, attorneys; Mr.
Woyce and Joseph S. Murphy, on the briefs).

Lisa A. Puglisi, Assistant Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General of New Jersey,
attorney, Ms. Puglisi and Christopher C.
Josephson, Deputy Attorney General, on the
letter briefs).

Fletcher C. Duddy, Deputy Public Defender,
argued the cause for amicus curiae Office of
the Public Defender (Joseph E. Krakora,
Public Defender, attorney).

Ronald K. Chen argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Rutgers Constitutional Rights Clinic
Center for Law & Justice and Edward L.
Barocas, Legal Director, attorneys; Mr.
Chen, Mr. Barocas, Jeanne M. LoCicero, and
Alexander R. Shalom, of counsel and on the

1
 brief).

JUSTICE ALBIN delivered the opinion of the Court.

Today, the Internet plays an essential role in the daily

lives of most people -- in how they communicate, access news,

purchase goods, seek employment, perform their jobs, enjoy

entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may

be subject to restrictive Internet conditions at the discretion

of the New Jersey State Parole Board (the Parole Board),

provided the conditions promote public safety and/or the

rehabilitation of the offender. In this case, the first issue

is whether a total Internet ban imposed on a CSL offender was

unnecessarily overbroad and oppressive and whether it served any

rational penological purpose. The second issue is whether the

Parole Board improperly denied J.I. a hearing to challenge the

Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for

life. After his release from confinement, J.I. was allowed full

access to the Internet, with one exception: he could not visit

an Internet social networking site without the approval of his

District Parole Supervisor.

After J.I. had served thirteen months on community

supervision for life without incident, his District Parole

Supervisor totally banned his access to the Internet except for

2
employment purposes. The District Parole Supervisor justified

the ban based not on J.I.’s conduct while on community

supervision for life, but rather on his conduct years earlier --

the accessing of pornography sites and the possession of

pornography -- that led to a violation of his parole. A Parole

Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I.

accessed several benign websites, such as those of his church

and therapist, after repeated warnings not to do so. As a

result, the parole authorities completely banned J.I. from

possessing any Internet-capable device. The Parole Board upheld

that determination and denied J.I. a hearing. The Appellate

Division affirmed.

We now reverse and remand to the Parole Board. Conditions

imposed on CSL offenders -- like those imposed on regular

parolees -- are intended to promote public safety, reduce

recidivism, and foster the offender’s reintegration into

society. Arbitrarily imposed Internet restrictions that are not

tethered to those objectives are inconsistent with the

administrative regime governing CSL offenders. We agree with

the position taken by federal courts that Internet conditions

attached to the supervised release of sex offenders should not

be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban,

3
after J.I.’s thirteen months of good behavior, cannot be easily

justified, particularly given the availability of less

restrictive options, including software monitoring devices and

unannounced inspections of J.I.’s computer. After the

imposition of the total ban for J.I.’s Internet violations, J.I.

should have been granted a hearing before the Parole Board to

allow him to challenge the categorical Internet blackout. The

complete denial of access to the Internet implicates a liberty

interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a

hearing consistent with this opinion. The Board must determine

whether the current total computer and Internet ban imposed on

J.I. serves any public-safety, rehabilitative, or other

penological goal.

I.

A.

In 2003, J.I. pled guilty to one count of second-degree

sexual assault, N.J.S.A. 2C:14-2(b), and two counts of second-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

J.I. admitted that, over a period of time, he sexually molested

his three daughters, who ranged from six to fourteen years old.

The trial court sentenced J.I. to a seven-year prison term,

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the

sexual assault charge and to concurrent terms of seven years on

4
the endangering charges. The court found that J.I.’s “conduct

was characterized by a pattern of repetitive and compulsive

behavior” and that he was amenable to sex offender treatment,

and therefore ordered that the sentence be served at the Adult

Diagnostic and Treatment Center (ADTC). The court also imposed

a three-year period of mandatory parole supervision, to begin

after J.I.’s release from custody, and a special sentence of

community supervision for life, to follow the parole supervision

period. Additionally, J.I. is subject to the registration and

notification requirements of Megan’s Law, N.J.S.A. 2C:7-1 to -

23.

Upon J.I.’s release from confinement in October 2009, the

Parole Board served him with the conditions of his mandatory

parole supervision, which included the mandate that he refrain

from accessing any social networking service or chat room. In

January 2010, a parole officer’s search of J.I.’s computer

revealed that J.I. had visited multiple websites that “depicted

minors in the nude.” J.I. admitted to doing so. A parole

officer also found in J.I.’s possession “‘barely legal’ DVDs and

a book of ‘artistic’ photos of pre-teen and minor females in the

nude.”

J.I. was not charged with a criminal offense or parole

violation, but his sex-offender treatment provider indicated

that the possession of such material was “not conducive to

5
[J.I.’s] rehabilitation or reintegration into society.” In

light of J.I.’s conduct, the Parole Board prohibited J.I. from

using any Internet-capable device.

In October 2010, the parole authorities arrested J.I. for

possessing a mobile phone with Internet capability and for using

it “regularly in that capacity.” In March 2011, a panel of the

Parole Board found that J.I. had violated the conditions of his

supervised release by having “an Internet capable device in his

possession” and by his earlier “accessing pornography and images

of nude children.” In June 2011, J.I. returned to confinement

at the ADTC, where he remained until his release sixteen months

later.

B.

Before his release in October 2012, J.I. acknowledged in

writing the conditions attached to his community supervision for

life. The only restriction on J.I.’s use of a computer or the

Internet was that he “refrain from using any computer and/or

device to create any social networking profile or to access any

social networking service or chat room . . . unless expressly

authorized by the District Parole Supervisor.” Under the social

networking condition, J.I. was prohibited from accessing

websites such as Facebook and Match.com. J.I. otherwise had

full access to the Internet. Indeed, a Deputy Attorney General

confirmed by email that the social networking restriction was

6
the only limitation on J.I.’s use of the Internet.

In 2013, J.I. was sixty-two years old, unemployed, and

without the means to pay the mortgage on the home where his wife

and son lived or otherwise provide financial assistance to his

family. To further his search for employment, J.I. requested

that his District Parole Supervisor modify the social networking

condition to allow him to access LinkedIn, a job-related

networking site. At this point, J.I. was in compliance with all

the conditions of his community supervision for life, including

the Internet conditions.

In response to J.I.’s request for a limited modification to

the social networking condition, on December 5, 2013, J.I.’s

District Parole Supervisor prohibited J.I. from accessing the

Internet for any purpose other than employment purposes, subject

to his installing monitoring software on his computer. J.I.’s

request to access LinkedIn was granted. J.I., however, was now

subject to far more onerous Internet restrictions than before

his request for relief -- despite his thirteen-month compliance

with the terms of his community supervision. The District

Parole Supervisor justified this near-total Internet ban based

on J.I.’s noncompliance, three years earlier, with “the State

Parole Board’s Social Networking/internet condition and his use

of questionable and inappropriate internet sites.” Six days

later, on December 11, 2013, a panel of the Parole Board

7
affirmed the near-total Internet blackout. Nothing in the Board

panel’s statement of reasons suggests that J.I. had the

opportunity to submit written objections to the newly imposed

Internet restrictions.

Almost fifty days later, the District Parole Supervisor

admonished J.I. for visiting non-work-related websites -- a car-

buying website, “Godtube,” “Morris Psychological Group,” and

“Covenant Eye.”1 Covenant Eye was the filtering website program

that allowed J.I.’s parole officer to track and monitor his

Internet usage.

On February 17, 2014, J.I. appealed to the Parole Board the

conditions imposed by the District Parole Supervisor,

restricting his computer and Internet access to employment-

related uses. Ten days later, J.I. was admonished again, this

time for visiting the websites of the church he attended -- the

Parsippany Baptist Church -- and “Rent to Own.”

On March 7, 2014, J.I. and his counsel met with the

District Parole Supervisor and a parole officer. At this

meeting, the District Parole Supervisor stated that J.I. was

never permitted to use a computer or access the Internet until

1 According to J.I. (per his Appellate Division brief), Godtube
is a “religious website providing spiritual guidance through
videos and biblical passages,” and the Morris Psychological
Group is where “his sex offender specific therapist is
employed.” Contact information for that therapist is located on
the Group’s website.
8
he authorized him to do so and, then, only for work-related

purposes. The District Parole Supervisor’s assertion conflicted

not only with the written CSL conditions issued at the time of

J.I.’s release from custody, but also with assurances given to

J.I.’s attorney by a Deputy Attorney General. The District

Parole Supervisor made clear that J.I. could not use the

Internet to communicate with relatives, visit his church’s

website, make purchases, bank, or engage in any other benign

activity except to seek employment.

After the meeting, J.I. continued to visit websites

unrelated to his employment search: typesofaid.com, a website

explaining different assistance programs, and slimming.com, a

website offering weight-loss counseling. In response, J.I.’s

parole officer barred him from using a computer or the Internet

for any purpose. J.I. was also advised that if any Internet-

capable device -- such as an iPhone -- were found in his

possession, he would be arrested. The parole authorities did

not allege that J.I. accessed pornographic or illicit websites

since his release from confinement.

In June 2014, a Parole Board panel affirmed the

“computer/Internet” and “social networking” conditions attached

to J.I.’s community supervision for life and denied his request

for an evidentiary hearing.

C.

9
 On administrative appeal, J.I. urged the full Parole Board

to remove the Internet and computer restrictions and grant him

an evidentiary hearing.

On October 29, 2014, the full Parole Board issued a final

agency decision, affirming the authority of the District Parole

Supervisor to bar J.I. from using a computer or Internet-capable

device and requiring him “to provide the nature and purpose of

each request for computer/Internet use or social networking.”

According to the Board, the Division of Parole would determine

whether each request for Internet use was consistent with J.I.’s

rehabilitative needs based on supporting documentation.

The Parole Board found that the Division of Parole’s

complete restriction on J.I.’s use of a computer or Internet-

capable device was justified because of his “willful disregard”

of the prohibition against accessing non-work-related websites.

The Board also denied J.I.’s request for an evidentiary hearing,

reasoning that the computer/Internet access ban did not

constitute the infringement of a liberty interest similar to the

imposition of a curfew and that no factual issue had to be

resolved.

D.

A panel of the Appellate Division upheld the Parole Board’s

decision to keep standing a total ban on J.I.’s access to a

computer and the Internet as a condition of his community

10
supervision for life. J.I. v. N.J. State Parole Bd., 441 N.J.

Super. 564 (App. Div. 2015). In doing so, the panel reaffirmed

the constitutionality of N.J.A.C. 10A:71-6.11(b)(23).2 Id. at

578-79; see also J.B. v. N.J. State Parole Bd., 433 N.J. Super.

327, 341 (App. Div. 2013), certif. denied, 217 N.J. 296 (2014).

That provision allows a Parole Board panel to order a parolee to

“[r]efrain from using any computer and/or device to create any

social networking profile or to access any social networking

service.” N.J.A.C. 10A:71-6.11(b)(23). The panel indicated

that its affirmance of the social networking restriction in J.B.

did not suggest that the Parole Board could not impose an

absolute ban on the use of an Internet-capable device in a

particular case. J.I., supra, 441 N.J. Super. at 579.

The panel also rejected J.I.’s ex-post facto and as-applied

due process challenges to N.J.A.C. 10A:71-6.11(b)(23), which was

adopted before J.I. began serving his community supervision for

life but after the events resulting in his convictions. Id. at

580-82. The panel held that the regulation “is remedial in

purpose and effect, not punitive” and that “[i]t is aimed at

2 In 2012, N.J.A.C. 10A:71-6.11(b)(22) was amended to include
certain definitions, including definitions of “Internet website
or application,” “social networking service,” and “chat room.”
See 44 N.J.R. 30(a) (Jan. 3, 2012). In December 2016, the
section was recodified, with no alteration to the text, at
N.J.A.C. 10A:71-6.11(b)(23). See 48 N.J.R. 2612(b) (Dec. 5,
2016).
11
protecting the public from sex offenders, fostering

rehabilitation, and reducing the likelihood of recidivism.” Id.

at 582.

The panel, moreover, rejected J.I.’s argument that the

Parole Board’s decision to uphold an “absolute ban on his use of

an Internet-capable device” was arbitrary and capricious. Id.

at 583. The panel asserted that the absolute ban was justified

because of J.I.’s repeated violations of the conditions of his

community supervision, which limited his Internet use to

employment purposes; the nature of the crimes he committed; and

his earlier accessing of pornographic material. Id. at 584.

The panel found that the special “conditions were reasonable in

order to reduce the likelihood of his recidivism and consistent

with protecting the public safety and welfare and fostering his

rehabilitation.” Ibid. The panel concluded that J.I. had a due

process right “of notice and an opportunity to object to the

conditions and request broader Internet access,” but not a right

to a hearing. Id. at 584-85.

We granted J.I.’s petition for certification. J.I. v. N.J.

State Parole Bd., 223 N.J. 555 (2015). We also granted the

motions of the American Civil Liberties Union of New Jersey

(ACLU-NJ) and the Office of the Public Defender to participate

as amici curiae.

II.

12
 A.

J.I. contends that the issue is not whether the Parole

Board may restrict a supervised sex offender from particular

Internet websites or social networks, but whether it may impose

a total ban on Internet access in the circumstances of this

case. J.I. submits that the restrictions imposed by his

District Parole Supervisor, and affirmed by the Parole Board,

denying him complete access to the Internet were

constitutionally overbroad and in violation of his free speech

rights under the United States and New Jersey Constitutions. He

asserts that he has never used the Internet to commit a crime or

seek out a victim and therefore the total Internet restriction

is not narrowly tailored to advance a legitimate state interest.

J.I. asserts that prohibiting him from possessing a

computer or Internet-capable device is a form of banishment,

leaving him “without access to nearly every communicative device

used in the modern world.” J.I. states that absolute Internet

bans as a condition of parole, even when subject to modification

by a probation officer, have been deemed unreasonable by panels

of the United States Court of Appeals for the Third Circuit,

citing United States v. Albertson, 645 F.3d 191 (3d Cir.), cert.

denied, 564 U.S. 1028, 131 S. Ct. 3045, 180 L. Ed. 2d 862

(2011); United States v. Heckman, 592 F.3d 400 (3d Cir. 2010);

United States v. Voelker, 489 F.3d 139 (3d Cir. 2007). Last,

13
J.I. argues that the Internet ban deprived him of a liberty

interest, triggering his due process right to a hearing before

the Parole Board.

B.

The ACLU-NJ submits that the relevant statutes and

regulations governing CSL offenders should be read so that their

reach does not exceed constitutional bounds. The exercise of

unbridled discretion by parole officers in setting Internet

restrictions, the ACLU-NJ posits, offends constitutional norms.

The ACLU-NJ states that, when imposing broad-ranging Internet

restrictions, the Parole Board should be required to make “a

particularized showing that the restrictions are justified”

based on both a review of the offender’s prior conduct and an

assessment of the current risk that he will use the Internet for

“predatory conduct.” It submits that Internet restrictions

should be narrowly tailored “when applied to offenders who do

not have a history of prohibited behavior through the Internet.”

C.

The Public Defender contends that the absolute Internet ban

violates not only J.I.’s First Amendment rights, but also his

right to be free from arbitrary and unreasonable government

action. The Public Defender emphasizes that the Internet played

no role in the crimes J.I. had committed and that J.I. had not

displayed any time-relevant inclination to view pornography on

14
the Internet. The Public Defender asserts that the standard

adopted by the Third Circuit -- requiring that Internet

restrictions be narrowly tailored to serve a legitimate purpose

-- is consistent with our administrative statutory scheme and

constitutional principles. That standard, he observes, takes

into account the immense role that the Internet plays in modern-

day life and recognizes the hardships caused to offenders

seeking employment and reintegration into society by severe

Internet restrictions.

D.

The Parole Board asks this Court to affirm the Appellate

Division because the Internet restrictions imposed on J.I. were

based on substantial evidence in the record and did not violate

any of his constitutional rights. The Board contends that the

reasonableness of Internet conditions imposed on released sex

offenders is “not viewed through the traditional lens of First

Amendment jurisprudence”; instead, the reasonableness of those

conditions is viewed in light of the offenders’ CSL status.

Accordingly, the Board maintains that the First Amendment is not

offended in this setting if restrictions “bear a reasonable

relationship to the State’s important interests of protecting

the public and fostering rehabilitation.” The Board insists

that the Internet restrictions placed on J.I. struck “a fair

balance between those interests and [J.I.’s] interests in free

15
expression and association.”

The Board also argues that the cited Third Circuit cases

are not pertinent because they interpret federal statutory

provisions. The Board states that the Internet restriction is

not imposed “as a general condition of supervision,” but only

“on an individualized basis as a special condition,” such as

here, where the “offender defies less restrictive conditions

concerning inappropriate Internet use.” The Board asserts that

it “must have the discretion to impose and remove conditions in

response to an offender’s behavior -- both to assist in

rehabilitating him and to protect the public.”

Finally, the Board insists that J.I. was given all the

process to which he was entitled: “notice and a meaningful

opportunity to be heard” when the special condition barring

Internet/computer access was imposed. The Board submits that

the total Internet/computer ban does “not impose a significant

restraint on the offender’s liberty that would trigger the

heightened process” this Court established for curfews in

Jamgochian v. New Jersey State Parole Board, 196 N.J. 222, 239-

42 (2008).

III.

This appeal raises several issues: (1) whether the

District Parole Supervisor and Parole Board’s imposition of a

complete ban on J.I.’s use of an Internet-capable device was so

16
unnecessarily overbroad that it violated the statutory and

regulatory scheme governing CSL offenders as well as

constitutional norms; (2) whether J.I., as an offender subject

to community supervision for life, possesses a protectible

liberty interest in access to the Internet and a computer; and,

if so, (3) whether J.I. was afforded the minimum requirements of

due process before he was deprived of that liberty interest.

We begin with an overview of the important role the

Internet plays in contemporary society and then turn to the

general purposes of parole supervision and the statutory and

regulatory scheme governing the imposition of Internet

restrictions on CSL offenders.

IV.

Today, access to the Internet is considered to be a basic

need and one of the most meaningful ways to participate in the

essentials of everyday life. See Laura Tatelman, Note, Give Me

Internet or Give Me Death: Analyzing the Constitutionality of

Internet Restrictions as a Condition of Supervised Release for

Child Pornography Offenders, 20 Cardozo J.L. & Gender 431, 442

(2014). Through email and social networks, the Internet has

become a primary means of communication among family members and

friends, coworkers, patients and their doctors, clients and

their lawyers, and individuals seeking employment. See id. at

446, 450-51. Online, people engage in banking and business

17
transactions, purchase items, and watch movies and television.

See Lori McPherson, The Sex Offender Registration and

Notification Act (SORNA) at 10 Years: History, Implementation,

and the Future, 64 Drake L. Rev. 741, 789 (2016). The Internet

provides access to newspapers, magazines, news networks and

blogs, reference materials, and much of the world’s literature.

Voelker, supra, 489 F.3d at 145 & n.3. In 2012, the Internet

surpassed radio and newspapers as a source of news for Americans

and was poised to become more popular than television. Derek

Thomas, Why the Internet Is About To Replace TV as the Most

Important Source of News, The Atlantic (Oct. 1, 2012),

http://www.theatlantic.com/business/archive/2012/10/why-the-

internet-is-about-to-replace-tv-as-the-most-important-source-of-

news/263100/. Most unemployed workers searching for jobs do so

on the Internet, and millions of students take online classes.

See Tatelman, supra, 20 Cardozo J.L. & Gender at 445–46. All in

all, the Internet is a ubiquitous presence in contemporary life,

and it is difficult “to imagine how [a person] could function in

modern society given [a] lifetime ban on all forms of computer

access and use.” Voelker, supra, 489 F.3d at 148.

V.

A.

Sex offenders subject to community supervision for life,

and parolees in general, are subject to “continued governmental

18
oversight and diminished personal autonomy when they are on

parole or some other form of post-release supervision.” J.B.,

supra, 433 N.J. Super. at 337. Although an offender on parole

may face substantial restrictions not faced by the average

citizen, the ultimate purpose of parole “is to help [offenders]

reintegrate into society as constructive individuals.”

Morrissey v. Brewer, 408 U.S. 471, 477-78, 92 S. Ct. 2593, 2598,

33 L. Ed. 2d 484, 492 (1972). To that end, specific conditions

restricting the activities of a CSL offender, including

restrictions on Internet access, must bear a reasonable

relationship to reducing the likelihood of recidivism and

fostering public protection and rehabilitation. See N.J.S.A.

2C:43-6.4(b); N.J.S.A. 30:4-123.59(b)(1); see also Pazen v. N.J.

State Parole Bd., 374 N.J. Super. 356, 367 (App. Div. 2005)

(noting, in construing N.J.S.A. 30:4-123.59(b), “federal

decisions . . . have rejected special conditions of parole where

those conditions could not be justified as related to the

rehabilitation of the parolee, the protection of society or the

prevention of recidivistic behavior”).

B.

One component of J.I.’s sentence was that he be subject to

community supervision for life. See N.J.S.A. 2C:43-6.4. The

State Parole Board’s Division of Parole is responsible for the

oversight and monitoring of CSL offenders. N.J.A.C. 10A:71-

19
6.11(b). CSL offenders are “supervised as if on parole and

subject to conditions appropriate to protect the public and

foster rehabilitation.” N.J.S.A. 2C:43-6.4(b) (1994) (emphasis

added) (amended 2003).3 Those conditions are comprised of

mandatory general conditions and permissive special conditions.4

The general and specific conditions of community

supervision for life must be in writing and signed by the CSL

offender at the time of his release from custody. N.J.S.A.

30:4-123.59(b); see also N.J.A.C. 10A:71-6.11(j). One of the

general conditions of community supervision for life requires

that a CSL offender “[r]efrain from using any computer and/or

device to create any social networking profile or to access any

social networking service or chat room in the offender’s name or

any other name for any reason unless expressly authorized by the

District Parole Supervisor.” N.J.A.C. 10A:71-6.11(b)(23).

In addition to the general CSL conditions, “the member or

board panel certifying parole release . . . may impose any other

specific conditions of parole deemed reasonable in order to

3 The current version of N.J.S.A. 2C:43-6.4(b), although
referring to offenders subject to parole supervision for life,
requires -- as did the earlier version -- that the conditions of
a “special sentence” be “appropriate to protect the public and
foster rehabilitation.”

4 An offender who violates a specific or general condition of
community supervision for life “is guilty of a crime of the
third degree.” N.J.S.A. 2C:43-6.4(d).
20
reduce the likelihood of recurrence of criminal or delinquent

behavior, including a requirement that the parolee comply with

the Internet access conditions set forth in [N.J.S.A. 30:4-

123.59(b)(2)].” N.J.S.A. 30:4-123.59(b)(1); see also N.J.S.A.

2C:43-6.4(f)(1); N.J.A.C. 10A:71-6.4, -6.11(b). The setting of

a specific condition must be “based on [the] prior history of

the parolee or information provided by a victim.” N.J.S.A.

30:4-123.59(b)(1). Requiring that a CSL offender’s prior

history inform the imposition of Internet special conditions

ensures that those conditions bear a reasonable relationship to

promoting public safety and fostering rehabilitation. Cf.

N.J.S.A. 30:4-123.59(b)(2).

If the District Parole Supervisor decides to impose

additional special conditions, he must give “written notice” to

the CSL offender and to the Parole Board. Ibid. Importantly,

“[a] special condition shall not be deemed effective until

affirmed by the appropriate Board panel.” N.J.A.C. 10A:71-

6.11(k)(4). The Board panel is required to advise the District

Parole Supervisor within three working days whether it has

affirmed the imposition of the special condition. N.J.A.C.

10A:71-6.11(k)(2). The regulation does not provide the CSL

offender with an opportunity to file a written submission to the

Board panel. The three-day timeframe in which the Board panel

must act on a proposed modification of a special CSL condition,

21
evidently, does not contemplate input from the CSL offender.

When appropriate, “the member or board panel certifying

parole release” may set one or more of the following special

conditions related to Internet access:

(a) Prohibit the person from accessing or
using a computer or any other device with
Internet capability without the prior written
approval of the court, except the person may
use a computer or any other device with
Internet capability in connection with that
person’s employment or search for employment
with the prior approval of the person’s parole
officer;

(b) Require the person to submit to periodic
unannounced examinations of the person’s
computer or any other device with Internet
capability . . . ;

(c) Require the person to submit to the
installation on the person’s computer or
device with Internet capability, at the
person’s expense, one or more hardware or
software systems to monitor the Internet use;
and

(d) Require the person to submit to any other
appropriate restrictions concerning the
person’s use or access of a computer or any
other device with Internet capability.

[N.J.S.A. 30:4-123.59(b)(2); see also
N.J.S.A. 2C:43-6.4(f)(1).]5

Subsections (b), (c), and (d) represent monitoring conditions to

5 Except for minor differences, N.J.S.A. 2C:43-6.4(f) and
N.J.S.A. 30:4-123.59(b)(2) are almost identical. N.J.S.A.
2C:43-6.4 speaks not only to the trial court’s authority to
impose special conditions, but also to the Parole Board’s power
to do so as well.
22
ensure that a CSL offender is using the Internet for legitimate

purposes whereas subsection (a) represents a total ban on the

use of any Internet-capable device for any purpose, subject to

the employment exception at the discretion of the District

Parole Supervisor.

The statute’s structure, and common sense, suggests that

Internet conditions should be tailored to the individual CSL

offender, taking into account such factors as the underlying

offense and any prior criminal history, whether the Internet was

used as a tool to perpetrate the offense, the rehabilitative

needs of the offender, and the imperative of public safety.

Given the statute’s list of optional Internet conditions, the

Legislature evidently did not intend that a total ban on

Internet use should be deployed when less restrictive

alternatives can achieve the goal of public safety and personal

rehabilitation.

VI.

A.

On September 19, 2012, J.I. signed a three-page form

setting forth the general and specific conditions of his

community supervision for life. The one condition on the CSL

form relevant to this appeal is the social networking condition.

It reads:

I shall refrain from using any computer and/or

23
 device to create any social networking profile
or to access any social networking service or
chat room (including but not limited to
MySpace, Facebook, Match.com, Yahoo 360) in my
name or any other name for any reason unless
expressly authorized by the District Parole
Supervisor.

In addition, J.I. acknowledged that he would “be subject to any

special conditions . . . imposed by the District Parole

Supervisor [and] affirmed by the appropriate Board panel.”

(Emphasis added).

At the time of J.I.’s second release from confinement, the

social networking condition was the only restriction on his use

of an Internet-capable device. A Deputy Attorney General

confirmed that point with J.I.’s attorney by email. The

District Parole Supervisor, therefore, was mistaken in his

understanding that J.I. was never authorized to use the Internet

upon his release. Although he indicated otherwise to J.I., the

District Parole Supervisor had no power to impose restrictions

orally or without the approval of a Board panel. Despite J.I.’s

thirteen-month compliance with the Internet conditions attached

to his CSL status, the District Parole Supervisor imposed

dramatic restrictions after J.I. requested permission to access

a professional networking site that he believed would improve

his prospects for employment. As a result, J.I. went from full

access to the Internet, subject to the social networking

restriction, to no access to the Internet, except for employment

24
purposes. The District Parole Supervisor did not point to any

conduct during J.I.’s thirteen-month CSL period to justify the

newly imposed restrictions. Instead, he justified the Internet

ban based on J.I.’s visiting pornography websites more than

three years earlier.

With no apparent input from J.I., a Board panel affirmed

the Internet ban except for employment purposes. The timeline

of events suggests that J.I.’s simple request for a relaxation

of the social networking condition -- to allow access to

LinkedIn -- set in motion the imposition of CSL conditions that

banished him from nearly all of life’s activities on the

Internet.

J.I. appealed to the full Parole Board challenging the

newly imposed special condition restricting his Internet access

for employment purposes only. He also requested a hearing.

Ultimately, the near-total ban was transformed into a

complete Internet ban. Before and after J.I. filed his

administrative appeal, he visited the websites of his church,

his therapist, and other seemingly benign websites. Those

websites were not employment related and therefore accessing

them was in violation of the new special condition. Thereafter,

the parole authorities barred J.I. from using the Internet for

any purpose -- including employment-related purposes -- and from

possessing any Internet-capable device. A Parole Board panel

25
and then the full Parole Board affirmed that decision. The

Board denied J.I.’s request for a hearing.

B.

Although the reasonableness of Internet restrictions

imposed on a CSL offender is a novel issue for this Court,

federal courts, such as the United States Court of Appeals for

the Third Circuit, have addressed Internet restrictions on

supervised offenders with some frequency.6 Although the federal

statute dealing with supervised release, 18 U.S.C.A. § 3583, is

worded differently from New Jersey’s corollary CSL provisions,

the principles governing the federal and state statutes are

similar. Under federal law -- as under state law -- “the

primary purpose of supervised release is to facilitate the

6 Pending before the United States Supreme Court is a
constitutional challenge to a North Carolina criminal statute
that prohibits sex offenders from accessing certain Internet
websites. Packingham v. North Carolina, __ U.S. ___, 137 S. Ct.
368, 196 L. Ed. 2d 283 (2016) (granting certiorari). The North
Carolina statute at issue makes it a crime for any registered
sex offender “to access a commercial social networking Web site
where the sex offender knows that the site permits minor
children to become members or to create or maintain personal Web
pages on the commercial social networking Web site.” State v.
Packingham, 777 S.E.2d 738, 743-44 (N.C. 2015) (quoting N.C.G.S.
§ 14-202.5). The North Carolina Court of Appeals held that the
statute is “unconstitutional both on its face and as applied to
defendant,” but the North Carolina Supreme Court reversed,
holding that the statute is “constitutional in all respects” and
does not violate the First Amendment. Id. at 741. The criminal
nature of the North Carolina statute distinguishes Packingham
from the case before us.

26
integration of offenders back into the community rather than to

punish them.” Albertson, supra, 645 F.3d at 197 (citing U.S.

Sentencing Comm’n, Federal Offenders Sentenced to Supervised

Release 8-9 (2010)). Moreover, conditions of supervised release

under federal law must be “reasonably related” to federal

sentencing factors and must involve “no greater deprivation of

liberty than is reasonably necessary” to fulfill the statute’s

purposes. Id. at 196-97 (citing United States v. Pruden, 398

F.3d 241, 248 (3d Cir. 2005)).

Although our state’s supervised-release statutes are framed

differently from their federal counterparts, nothing in the

language of our statutes -- or in our jurisprudence -- suggests

that CSL offenders may be subject to conditions that deprive

them of their liberty when those conditions are not reasonably

necessary to protect the public or foster their rehabilitation.

To read our statutory scheme as allowing greater restrictions on

the liberty of CSL offenders than are necessary would needlessly

raise questions about its constitutionality. Accordingly, we

may gain insight by reviewing how our sister federal courts

address the imposition of Internet restrictions on sex

offenders.

Third Circuit cases recognize that access to the Internet

is “essential in modern life for legitimate purposes of

communication, commerce, and information-gathering,” United

27
States v. Miller, 594 F.3d 172, 185 (3d Cir. 2010), and

therefore an Internet-access condition of “supervised release

must be supported by some evidence that the condition imposed is

tangibly related to the circumstances of the offense, the

history of the defendant, the need for general deterrence,” or

similar penological concerns, ibid. (quoting Voelker, supra, 489

F.3d at 144).

The Third Circuit has upheld “a complete ban on internet

access, except with prior approval of probation,” when offenders

“have used or have clearly demonstrated a willingness to use the

internet as a direct instrument of physical harm.” Albertson,

supra, 645 F.3d at 197. It affirmed a ten-year total Internet

ban when an offender used the Internet to encourage an “online

chat companion to abuse sexually a minor girl in front of a

webcam,” id. at 197-98 (citing United States v. Thielemann, 575

F.3d 265, 268 (3d Cir. 2009), cert. denied, 558 U.S. 1133, 130

S. Ct. 1109, 175 L. Ed. 2d 291 (2010)), and a three-year total

ban when an offender used the “internet to communicate, arrange

to meet, and have sexual relations with a minor girl,” id. at

198 (citing United States v. Crandon, 173 F.3d 122, 125 (3d

Cir.), cert. denied, 528 U.S. 855, 120 S. Ct. 138, 145 L. Ed. 2d

118 (1999)).

In contrast, in cases where there was no direct link

between Internet use and a “putative victim,” the Third Circuit

28
has ruled that a “blanket ban” is overbroad. Ibid. (citation

omitted). Thus, even in child pornography cases, the Third

Circuit has declined to deny an offender “access to email or

benign internet usage when a more focused restriction, limited

to pornography sites and images, can be enforced by unannounced

inspections of material stored on [the offender’s] hard drive or

removable disks.” Ibid. (quoting Miller, supra, 594 F.3d at

186).

In Albertson, a case involving a defendant convicted of

possession of child pornography on a home computer, the Third

Circuit struck down a special condition barring the use of any

Internet-capable computer as overbroad. Id. at 198-99. The

circuit court did not minimize the serious harm caused by

possessors of child pornography, but it determined that

“inspections, coupled with the required installation of

monitoring or filtering software, are reasonable methods of

enforcing a more targeted internet restriction.” Id. at 200.

The Third Circuit concluded that “in a time where the daily

necessities of life and work demand not only internet access but

internet fluency, sentencing courts need to select the least

restrictive alternative for achieving their sentencing

purposes.” Ibid. It therefore remanded to the district court

to implement a more tailored scheme. Ibid.

C.

29
 Informed by our statutory and regulatory scheme governing

CSL offenders, and the federal cases cited, we cannot conclude

that the Internet restrictions at issue were reasonably tailored

to advance the goals of rehabilitation or public safety. J.I.

did not use the Internet as a means of committing the offenses

for which he was placed on community supervision for life.

Although J.I., while on mandatory parole supervision, visited

pornography websites sometime before January 7, 2010, the record

does not suggest that he ever visited a pornographic or illicit

website or used the Internet in any unlawful way after his

ultimate release from the ADTC in October 2012. J.I. had been

in compliance with his CSL conditions for thirteen months when

the District Parole Supervisor and Parole Board panel imposed a

near-total ban on Internet access. Only after the entry of that

near-total ban did J.I. violate the Internet conditions by

visiting benign websites, such as those of his church and

therapist. We do not condone those violations because relief

from overbroad or oppressive restrictions must be achieved

through lawful means. A CSL offender must abide by the special

conditions of his supervision unless and until relief is

granted.

Nevertheless, we cannot ignore that the special conditions

that have brought about this appeal were overbroad. Legitimate

concerns about J.I.’s potential abuse of the Internet could have

30
been addressed through less restrictive means that were

available under N.J.S.A. 30:4-123.59(b)(2)(b), (c), and (d).

Under these sections, a CSL offender may be required “to submit

to periodic unannounced examinations” of any Internet-capable

device, N.J.S.A. 30:4-123.59(b)(2)(b); to install a software

monitoring system at his own expense, N.J.S.A. 30:4-

123.59(b)(2)(c); and to accede to any other “appropriate

restrictions” concerning the use of an Internet-capable device,

N.J.S.A. 30:4-123.59(b)(2)(d). Neither the District Parole

Supervisor nor the Parole Board panel explained why those

provisions were not acceptable alternatives to ensure public

safety and the offender’s rehabilitation before prohibiting

J.I.’s access to the Internet for all purposes unrelated to

employment.

Our review of the Parole Board’s determination is

deferential in light of its expertise in the specialized area of

parole supervision, and we must uphold findings that are

supported by credible evidence in the record. McGowan v. N.J.

State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

Judicial review, however, requires that we not blindly defer to

an agency’s decision. See Brady v. Dep’t of Pers., 149 N.J.

244, 256 (1997). The justification for Internet restrictions

must be based on “more than the caprice of a parole officer.”

Jamgochian, supra, 196 N.J. at 246. The parole authorities do

31
not have unbridled discretion to impose unnecessary or

oppressive Internet conditions that do not advance a rational

penological policy. Arbitrary and unreasonable decisions of an

administrative agency are not sustainable. See McGowan, supra,

347 N.J. Super. at 563.

The Internet condition imposed by the District Parole

Supervisor in December 2013 denying J.I. access to the Internet

for any purpose unrelated to employment was unreasonable because

it was not tied to criminal conduct, rehabilitation, or public

safety. Moreover, J.I.’s prior visits to pornographic websites

and possession of pornographic material occurred before his re-

incarceration and after he had complied for more than a year

with his CSL terms. The Parole Board had available less

restrictive alternatives than a complete Internet ban to achieve

its mission.

Accordingly, the Internet condition placed on J.I. cannot

be sustained on administrative law grounds.

VII.

We also conclude that J.I. was entitled to a reasonable

opportunity to challenge the proposed imposition of the severely

enhanced Internet restrictions, if only through written

submissions to the Parole Board panel, and to a hearing in some

form -- even if not an evidentiary one -- before the full Parole

Board after the total Internet ban was imposed.

32
 A CSL offender possesses protectible liberty interests, and

the deprivation of such an interest implicates the minimal

requirements of due process -- notice and an opportunity to be

heard. See Jamgochian, supra, 196 N.J. at 239-41; see also Doe

v. Poritz, 142 N.J. 1, 106 (1995). “[W]henever an individual

risks governmental exposure to a ‘grievous loss,’” even while

under parole supervision, the right to due process attaches.

State ex rel. D.G.W., 70 N.J. 488, 501-02 (1976) (quoting

Morrissey, supra, 408 U.S. at 481, 92 S. Ct. at 2600, 33 L. Ed.

2d at 494).

In Jamgochian, supra, we held that a CSL offender was

entitled to a Parole Board hearing to challenge the imposition

of a seven-day-a-week, eleven-hour-a-day curfew that lasted

sixteen months. 196 N.J. at 241, 250-51. We concluded -- after

applying the balancing test set forth by the United States

Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.

Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976) -- that the enforced

detention of a CSL offender in his own home, through a special

parole condition imposed years after his release from prison,

implicated a liberty interest triggering due process

protections.7 Jamgochian, supra, 196 N.J. at 240-41. A special

7 In determining the “precise procedural protections mandated by
due process in a particular case,” we apply the three-factor
test set forth in Mathews v. Eldridge:

33
condition of supervised release that totally banishes an

offender from the Internet and prohibits his possession of any

Internet-capable device arguably isolates him from society more

thoroughly than a partial curfew and therefore equally

implicates a liberty interest.

“Under the Mathews test, the individual’s liberty interest

and the value of added procedural protections must be balanced

against the State’s interest in maintaining a manageable parole

system.” Id. at 245. In Jamgochian, we acknowledged that the

process due CSL offenders facing a curfew would depend on the

circumstances of each case. Id. at 247. For example, we noted

that “[a] curfew that is imposed immediately upon a supervised

offender’s release from prison may be distinguished from one

imposed after the offender has lived in the community.” Id. at

245 n.8. That is so because “[a] curfew imposed after an

[F]irst, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute safeguards; and finally, the
Government’s interest, including the function
involved and the fiscal and administrative
burdens that the additional or substitute
procedural requirement would entail.

[Jamgochian, supra, 196 N.J. at 240
(alteration in original) (quoting Mathews,
supra, 424 U.S. at 335, 96 S. Ct. at 903, 47
L. Ed. 2d at 33).]
34
offender has lived freely in society for some period of time

must be related to conduct engaged in by the offender after his

release.” Ibid. That point is apposite here because J.I.

complied for thirteen months with the Internet conditions set on

his release date, and the Parole District Supervisor justified

imposing extreme restrictions based on conduct that predated his

release.

We also recognized in Jamgochian that the Parole Board was

authorized to impose a curfew on an emergent basis to ensure

public safety before affording a CSL offender a hearing. Id. at

247. That same principle holds true concerning an Internet ban.

The case before us, however, did not present any exigency that

required the delay of J.I.’s right to be heard in some

meaningful way before imposition of the near-total ban.

Because “due process is a flexible concept,” the level of

process required will depend on a number of variables, including

the timing of and justification for the Internet restriction,

the severity and length of the restriction, whether facts are

contested or uncontested, and whether credibility determinations

must be made. See ibid. Requiring certain procedural

protections to guard against the erroneous deprivation of a

supervised offender’s liberty interest necessarily places an

additional burden on the Parole Board. Id. at 246. Although we

require process to safeguard against arbitrary government

35
action, we will not mandate a regime that makes it impractical

to impose an Internet restriction to protect the public or

rehabilitate an offender. See ibid.

As a point of reference, it bears noting that regular

parolees are provided with the opportunity to submit written

comments within fifteen days to a Board panel on an application

to modify a condition of their parole. N.J.A.C. 10A:71-6.6(e).

The panel has forty-five days from receipt of an application to

render a decision. N.J.A.C. 10A:71-6.6(f). The process

afforded to regular parolees appears to exceed that provided to

CSL offenders, who do not have a similar opportunity to provide

written submissions to the Board panel reviewing their

conditions. Indeed, in the case of a CSL offender, the panel is

required to act within three working days of a District Parole

Supervisor’s decision. N.J.A.C. 10A:71-6.11(k)(2).

“[T]he balance of interests weighs in favor of giving a

supervised offender the opportunity to respond in a meaningful

way to” a near-total or absolute Internet ban imposed more than

a year after the offender’s release from confinement. See

Jamgochian, supra, 196 N.J. at 246. In the case of a Board

panel’s review of a District Parole Supervisor’s imposition of

stringent Internet restrictions, as here, due process will be

satisfied by allowing the CSL offender “the opportunity to

respond by letter with supporting attachments, such as

36
certifications or affidavits.” See id. at 247. The regulation,

as written, does not contemplate input from the CSL offender.

Allowing a CSL offender ten or fifteen days to file a written

submission to a Board panel challenging a District Parole

Supervisor’s modification of an Internet condition is a sensible

accommodation to ensure the due process rights of a CSL offender

are consonant with the Parole Board’s regulatory scheme.

Now, we address the process necessary before the full

Parole Board in the case before us. J.I. is presently banned

from having any access to the Internet and is threatened with

arrest if he is in possession of an Internet-capable device.

The absolute restriction on J.I.’s access to the Internet may

undermine his rehabilitation and hinder his ability to succeed

as a free agent in society. Although J.I. has not alleged any

factual disputes in the record that would suggest the need for

an evidentiary hearing, he is able to submit certifications from

his therapist and other relevant sources to the Board’s

attention. The circumstances of this case, however, call for

more process. Those circumstances include the fact that the

parole authorities imposed more restrictive Internet conditions

-- amounting to a near-total ban -- after J.I. had been

compliant with his CSL conditions for thirteen months and that

J.I.’s underlying conviction was unrelated to the Internet.

J.I., personally and/or through his attorney, must be given an

37
opportunity to appear before the Board and be heard. The

additional process will not impose an undue administrative

burden, and it may reduce the potential for an erroneous

deprivation of a liberty interest.

In the end, the additional process will serve the interests

of both the Parole Board and J.I., for neither will benefit if a

District Parole Supervisor arbitrarily and unreasonably imposed

a near-total or absolute Internet ban.

VIII.

For the reasons expressed, we reverse the Appellate

Division and remand to the Parole Board for proceedings

consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’S
opinion.

38