On January 25, 2021, the New Jersey Supreme Court decided the companion cases of State v. Hakum Brown and State v. Rodney Brown. The principal issue under N.J.S.A. 2C:7-2 was whether a penalty increase for failure to register as a sex offender was an Ex Post Facto violation when the predicate crime was committed before the penalty increase.
Justice LaVecchia wrote for a 6 to 1 majority of the Court as follows: The logic advanced by defendants and amicus, and adopted by the Appellate Division in this matter and in the prior published opinion in Timmendequas, is inconsistent with the foundational reasoning of Doe v. Poritz. Doe recognized the registration requirement as an administrative obligation rather than a penal consequence of the original predicate sex offense; the fact that violations of that administrative obligation are themselves separately punishable does not alter the nature of the obligation itself. Thus, imposition of that obligation did not involve a retroactive increase in punishment for the predicate crime. And, by extension, increasing the penal consequences for a violation of that obligation is similarly distinct from the punishment imposed for the predicate crime.
To the extent that the Appellate Division’s analysis in this matter and in Timmendequas is rooted in in the reasoning espoused in Hester, moreover, it fails to account for the key distinguishing feature in that appeal. Hester involved aspects of the application of CSL and PSL. Both are recognized not as administrative obligations, but rather as punitive measures imposed as part of the supervised release of an offender convicted of a qualifying offense. As Perez noted, when comparing CSL to registration, CSL is different in kind because it is punishment for the predicate offense — the offense that caused the sentence to include CSL. And as for PSL, our case law is replete with the acknowledgment that parole is continued punishment for the offense that carries it as part of the sentence, rendering the individual in the continued custody of the Department of Corrections. Thus, in Hester as in Perez, claims of retroactive imposition of punishment related to enhancement of supervised release that was a condition of a sex offense sentence. In sum, Hester involved a different and distinguishable setting than the one posed here — an increase in offense degree imposed on prospective violations of the Megan’s Law registration requirement.
An ex post facto violation occurs when a new law increases the penalty for crimes committed before the new law was enacted. The issue is often raised in cases involving sex offenders. There is a tendency to push for harsher punishments for those who have already been convicted of sex offenses along with those who commit new sex offenses.
