Domestic Violence and Electronic Monitoring

N.J.S.A. 2C:25-32.1 establishes a new domestic violence electronic monitoring program. The relevant statutory provisions are as follows.

N.J.S.A. 2C:25-31 Four-Year Pilot Program for Electric Monitoring of Defendants and Notification of Domestic Violence Victims.

The Attorney General and the State Parole Board shall establish, administer, and maintain a four-year pilot program in Ocean County or a different county as determined by the Attorney General pursuant to subsection b. of N.J.S.A. 2C:25-32.10 for electronic monitoring of defendants and notification of domestic violence victims as ordered by the court.

N.J.S.A 2C:25-32.2 Victim’s Informed Consent; Factors Considered by the Court.

32. Pursuant to the pilot program established by N.J.S.A. 2C:25-32, electronic monitoring may be ordered only with the victim’s informed consent as defined in N.J.S.A. 2C:25-32.5. The pilot program shall apply to defendants convicted of contempt of a domestic violence order entered pursuant to the provisions of N.J.S.A. 2C:25-1 et al. (repealed predecessor statute) or N.J.S.A. 2C:25-17.
33. In making the determination whether to place the defendant on electronic monitoring, the court may hold a hearing to consider the likelihood that the defendant’s participation in electronic monitoring will deter the defendant from injuring the victim. The court shall consider the following factors:

(1) the gravity and seriousness of harm that the defendant inflicted on the victim in the commission of the act of domestic violence that resulted in the entry of a temporary or final restraining order or a contempt order pursuant to the “Prevention of Domestic Violence Act”;

(2) the defendant’s previous history of domestic violence, if any;

(3) the defendant’s history of other criminal acts, if any;

(4) whether the defendant has access to a weapon;

(5) whether the defendant has threatened suicide or homicide;

(6) whether the defendant has a history of mental illness or has been civilly committed;

(7) whether the defendant has a history of alcohol abuse or substance abuse;

(8) the best interests of any children of the parties; and

(9) any other factors the court finds relevant to making such a determination.

It will be interesting to see how our courts interpret “history of domestic violence” and “history of criminal acts.” In the criminal court realm, dismissed charges cannot be weighed against a defendant. But these proceedings related to domestic violence and electronic monitoring are both criminal and civil in nature. Factor four seems overbroad in that the definition of a weapon is very broad and it is difficult to imagine anyone not having access to one.

The relevant statutory provisions continue as follows:

32. Any electronic monitoring device and tracking system worn or utilized by a defendant pursuant to N.J.S.A. 2C:25-32.1 et al. shall be in compliance with Offender Tracking Systems NIJ Standard 1004.00, issued by the National Institute of Justice in July 2016, and any successor standards adopted by the National Institute of Justice.
33. A defendant ordered by the court to be placed on electronic monitoring may be ordered to pay the costs and expenses related to electronic monitoring and victim notification, or a portion of the costs and expenses, based on the defendant’s ability to pay.
34. In addition to the provisions of subsection d. of this section, a defendant ordered by the court to be placed on electronic monitoring shall be assessed a monitoring fee of $250. The court may waive the fee in cases of extreme financial hardship. The fee shall be collected pursuant to the procedures established by the Attorney General and forwarded to the “Domestic Violence Victim Notification Fund” established pursuant to N.J.S.A. 2C:25-32.7.
35. The Attorney General, in consultation with the State Parole Board, shall develop procedures to determine, investigate, and respond to a defendant’s noncompliance with the terms and conditions of the electronic monitoring program on a 24-hour-per-day basis. All reports of noncompliance shall be investigated by a law enforcement officer as expeditiously as possible.
36. The Attorney General, the Administrative Office of the Courts, the Superintendent of State Police, the State Parole Board, and county and municipal law enforcement agencies shall share information obtained pursuant to N.J.S.A. 2C:25-32.1 et al.

N.J.S.A. 2C:25-32.3. Sentencing. Pursuant to the pilot program established by 2C:25-32.1 et al., whenever a defendant is convicted of contempt of a domestic violence order, the court may, in addition to any other disposition:

1. sentence the defendant to electronic monitoring with victim notification for a period of time not to exceed the expiration of the pilot program; or
2. sentence the defendant to probation and, concurrent to a disposition of probation, order electronic monitoring with victim notification.

2C:25-32.4. Electric Monitoring Device Tampering, Removal, Vandalism. Any person who tampers with, removes, or vandalizes an electronic monitoring device worn or utilized by a defendant pursuant to 2C:25-32.1 et al. is guilty of a crime of the third degree.

2C:25-32.5 Informed Consent Definition; Termination of Victim Participation. a. As used in 2C:25-32.1 et al., “informed consent” means that prior to consenting to a defendant’s participation in the electronic monitoring program, the prosecutor’s office has provided the victim the following information:

(1) The victim’s right to refuse to participate in electronic monitoring and the process for requesting the court to terminate the victim’s participation after it has been ordered, including the requirement for a resentencing hearing for the defendant when the victim terminates participation, as set forth in subsection b. of this section;

(2) The manner in which the electronic monitoring technology functions and the risks and limitations of that technology, the operational procedures of the device and the applicable instructions regarding the device, and the extent to which the system will track and record the victim’s location and movements;

(3) The boundaries imposed on the defendant during the electronic monitoring;

(4) The sanctions that the court may impose on the defendant for violating an order issued by the court;

(5) The procedure that the victim is to follow if the defendant violates an order or if electronic monitoring equipment fails;

(6) Identification of support services available to assist the victim in developing a safety plan to use if the defendant violates an order or if electronic monitoring equipment fails;

(7) Identification of community services available to assist the victim in obtaining shelter, counseling, education, child care, legal representation, and other help in addressing the consequences and effects of domestic violence; and

(8) The non-confidential nature of the victim’s communications with the court concerning electronic monitoring and the restrictions to be imposed upon the defendant’s movements.

1. If the victim requests that the court terminate the victim’s participation, through application by the prosecutor to the court, in the electronic monitoring program after the program has been ordered, the court shall hold a hearing to resentence the defendant. Electronic monitoring with victim notification shall continue until the court issues a resentencing decision.

2C:25-32.6 Civil Penalties. a. From the implementation of the pilot program through the fifth year thereafter, and, in addition to the provisions of 2C:25-29, any person found by the court in a final hearing to have committed an act of domestic violence shall be ordered by the court to pay a civil penalty of $200. In imposing this civil penalty, the court shall take into consideration the nature and degree of injury suffered by the victim. The court may waive the penalty in cases of extreme financial hardship.

1. In addition to any other disposition, the court shall impose a civil penalty of $250 on any person:

(1) convicted of a crime or offense involving domestic violence; or

(2) convicted of contempt of a domestic violence order, unless the person was previously assessed the monitoring fee, in which case the court shall not impose the civil penalty pursuant to this subsection.

1. The civil penalties imposed pursuant to this section shall expire at the end of the fifth year following implementation of the pilot program.

2C:25-32.7 Establishment of the Domestic Violence Victim Notification Fund. a. There is hereby established the “Domestic Violence Victim Notification Fund,” a dedicated, non-lapsing fund within the General Fund and administered by the Attorney General. The fund shall be the depository of the following moneys:

(1) the costs and expenses imposed on the defendant for electronic monitoring and victim notification;

(2) the $250 monitoring fee;

(3) the $200 civil penalty; set forth in subsection a. of 2C:25-32.6;

(4) the $250 civil penalty set forth in subsection b. of 2C:25-32.6; and

(5) any other monies that may be available to the fund through appropriation by the Legislature or any public or private source.

1. All moneys deposited in the “Domestic Violence Victim Notification Fund” shall be used to defray the costs of electronic monitoring with victim notification.

2C:25-32.8. Product, System, or Services Suppliers Not Liable for Damages; Exception. Notwithstanding any other provision of law to the contrary, no supplier of a product, system, or service used for electronic monitoring with victim notification in the pilot program shall be liable, directly or indirectly, for damages arising from any injury or death associated with the use of the product, system, or service unless, and only to the extent that, such action is based on a claim that the injury or death was proximately caused by a manufacturing defect in the product or system.

The principal manufacturer(s) of the electronic monitoring equipment were likely some of the strongest lobbyists in favor of this legislation. It is foreseeable that equipment failure and a victim being hurt or killed as a result of not being notified of the proximity of the offender would be a basis for a lawsuit. This provision seeks to limit the manufacturers’ liability. Manufacturers will likely put heavy burdens on the offender with regard to the maintenance of the equipment in an effort to shift the blame.

The electronic monitoring legislation concluded with the following:

2C:35-32.9 Annual Report Evaluating Pilot Program. Not later than one year following the implementation of the pilot program, and annually thereafter for a total of four years, the Attorney General shall submit to the Governor, and to the Legislature, a report containing an evaluation of the pilot program. The report shall recommend whether the pilot program should be continued as a Statewide program and include a cost impact analysis of the costs and expenses used to help pay for electronic monitoring and victim notification, the monitoring fee, and civil penalties imposed on defendants to defray the costs of electronic monitoring and victim notification.

2C:25-32.10. Promulgation of Rules and Regulations; Change of County. a. The Attorney General, in conjunction with the State Parole Board, and in consultation with the Ocean County Prosecutor and Ocean County Sheriff and any other entities that the Attorney General deems necessary, including, but not limited to, local victim service providers and abuse intervention programs, shall promulgate rules and regulations to effectuate the provisions of 2C:25-32.1.

1. If the Attorney General, while promulgating rules and regulations to effectuate the provisions pursuant to subsection a. of this section, determines that a county other than Ocean County may be a more effective venue for the pilot program, the Attorney General may change the county in which the pilot program is established.

It would be interesting to know the criteria for evaluating what New Jersey County is the most effective venue for a domestic violence electronic monitoring pilot program. The implication is that there is more domestic violence per capita in Ocean County and thus a greater need for additional safeguards like electronic monitoring. Or, the Attorney General might believe that Ocean County Law Enforcement is best equipped to handle the problem.