On May 30, 2018, the New Jersey Supreme Court decided the case of consolidated appeals case of State v. Hester, Warner, McKinney, and Roundtree. The principle issue before the Court was whether a 2014 amendment N.J.S.A. 2C:43-6.4 violated our state and federal constitutions’ ex post facto clause. The amendment that upgraded the offense of violating community supervision for life from a fourth degree to a third degree offense was applied retroactively to the four defendants.
Writing for a unanimous Court, Justin Albin held in relevant part as follows: All four defendants committed sex offenses long before the 2014 Amendment to N.J.S.A. 2C:43-6.4. As a result, they were convicted and sentenced to prison terms and a special sentence of CSL. The terms of their CSL required that they abide by certain general conditions, which included reporting to a parole officer, securing the officer’s permission to live at a residence or change an address, and complying with any curfew imposed by the officer. N.J.A.C. 10A:71-6.11(b)(2), (7), (8), and (19). At the time of the commission of their offenses, a violation of a general condition of CSL was punishable as a fourth-degree crime. After the 2014 Amendment, the same violation is not only punishable as a third-degree crime, with a presumption of imprisonment, but also converts a defendant’s CSL into PSL. See N.J.S.A. 2C;43-6.4(a) and (d).
Under PSL, the Parole Board has the authority to simply revoke a defendant’s supervised release for a violation of a general condition and bypass the panoply of procedural rights afforded under the criminal justice system, such as the rights to trial by jury and to have guilt proven beyond a reasonable doubt. In Perez, the State conceded “that the almost-universal practice since the enactment of [PSL] is to revoke a defendant’s parole and return him to prison” for a condition-of-release violation rather than prosecute him for a crime.
The conversion of CSL to PSL is as significant a penalty as the upgrading of the charge carrying a mandatory period of parole ineligibility. It strips a defendant of fundamental constitutional rights in addition to subjecting him or her to 3 to 5 years in prison with a presumption of imprisonment that, with very limited exceptions, only applies to first or second degree offenses.
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