The State contends that the 2014 Amendment is a classic recidivist statute that enhances the punishment for subsequent offenses and therefore is not an ex post facto law. However, the 2014 Amendment operates differently than recidivist statutes that have withstood challenge under the Federal and State Ex Post Facto Clauses. See, e.g., State v. Oliver, (2000).
In Oliver, we upheld the constitutionality of New Jersey’s three-strikes law, which mandated the imposition of a life sentence without the possibility of parole for defendants convicted of certain violent crimes on three separate occasions. In doing so, we noted that the United States Supreme Court has found “that recidivist statutes do not violate the Ex Post Facto Clause if they were on the books at the time the triggering offense was committed.” Id. at 587 (citing Gryger v. Burke, 334 U.S. 728, 732 (1948)). In Oliver, the three-strikes law was on the books at the time the defendant committed the third qualifying violent offense, and therefore he was on notice of the legal consequences of his conduct.
Importantly, the three-strikes law and other recidivist statutes enhance a defendant’s punishment for a subsequent crime because of that defendant’s commission of previous crimes. Had defendants in the present cases committed a crime, such as another sex offense — as opposed to violations of the general conditions of their supervised release — an applicable recidivist statute would allow an enhanced punishment for the subsequent offense. See, e.g., N.J.S.A. 2C:14-6. But here, the 2014 Amendment related not to the commission of a subsequent crime but rather to the terms of the sentence imposed for defendants’ prior crimes. The supervised release requirements of reporting to a parole officer, securing permission to live at a residence or change an address, and complying with any curfew imposed were integral parts of defendants’ special sentences of CSL. The punishment for violating those regulatory requirements — and other regulations set forth in N.J.A.C. 10A:71-6.11(b) — was established when defendants committed their crimes and received their sentences.
The appellate attorney(s) for the defendant(s) did an excellent job in drawing a subtle distinction between subsequent crimes and subsequent violations of the terms of a previous sentence. They convinced the court of this distinction even though the prosecution could argue that in the case of CSL and PSL, a violation of the terms of a previous sentence is a crime in itself, as opposed to a typical violation of probation.
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