On April 27, 2020, a three-judge appellate panel decided the Somerset County case of State v. R.K. The principal issue under N.J.S.A. 2C:43-6.4 involved the constitutionality of banning a sex offender from using social media.
Presiding Judge Sumners wrote for the Court in relevant part: Accordingly, we join in this reasoning to conclude Packingham is applicable to the Board’s social networking ban – N.J.A.C. 10A:71-6.11(b)23, making the ban unconstitutionally overbroad because it completely denies access to R.K.’s ability to express himself in the protected forum of public debate through social networking.
In reaching this conclusion, we reject the Board’s position that Packingham should not be applied retroactively to R.K.’s sentences. Though neither the United States Supreme Court, nor any other court that we are aware of, has addressed the retroactivity of Packingham, we agree with R.K. that based on Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. 718 (2016), Packingham applies retroactively. The Montgomery Court held “when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule.” 136 S. Ct. at 729. The social networking bans imposed on R.K. are substantive because they infringe upon his constitutional right to free speech. See Id. at 729-30 (holding “substantive rules set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose”).
The State defends the social networking ban by pointing to its “escape valve” provision, which allows the District Parole Supervisor to lift the ban when there is a legitimate reason for doing so. In our view, giving this authority to the supervisor is not sufficient to save the ban from constitutional fatality.
Somerset County has long had a reputation for having a prosecutor’s office that takes extreme positions against defendants. The idea that a District Parole Supervisor’s unchecked authority is sufficient to protect a sex offender’s constitutional rights is an example of an extreme position.