J.I. v. New Jersey State Parole Board(076442) , 228 N.J. 204 ( 2017 )

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