New Jersey v. Hester

Annotate this Case

As a result of their sex-offense convictions, all four defendants were required to serve a special sentence of community supervision for life ("CSL") after completion of their prison terms. The commission of their offenses, the judgments of their convictions, and the commencement of their sentences all preceded passage of the 2014 Amendment to the Violent Predator Incapacitation Act. Before the 2014 Amendment, a violation of the terms of CSL was punishable as a fourth-degree crime. The 2014 Amendment increased a CSL violation to a third-degree crime punishable by a presumptive term of imprisonment, and such a violation converted CSL to parole supervision for life (PSL). After enactment of the 2014 Amendment, all four defendants allegedly violated the terms of their CSL. They were indicted for committing third-degree offenses and faced the increased penalties provided by that Amendment. The trial courts presiding over defendants’ cases concluded that the 2014 Amendment’s enhanced penalties, as applied to defendants, violated the Ex Post Facto Clauses of the United States and New Jersey Constitutions and dismissed the indictments. The Appellate Division affirmed. The New Jersey Supreme Court held the Federal and State Ex Post Facto Clauses barred the retroactive application of the 2014 Amendment to defendants’ CSL violations. The Court affirmed the judgment of the Appellate Division dismissing defendants’ indictments.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Melvin Hester/Mark Warner/Anthony McKinney/Linwood Roundtree (A-91-16) (079228)

Argued November 28, 2017 -- Decided May 30, 2018

ALBIN, J., writing for the Court.

Under the Violent Predator Incapacitation Act, L. 1994, c. 130, §§ 1 and 2, a defendant convicted of certain
sex offenses pursuant to
N.J.S.A. 2C:43-6.4 is required to serve a special sentence of community supervision for life
(CSL). The Court considers the constitutionality of the retroactive application of the 2014 Amendment to
N.J.S.A.
2C:43-6.4 (2014 Amendment), L. 2013, c. 214, § 4 (effective July 1, 2014), which increased the punishment for the
CSL violations committed by the four defendants in this case.

Defendants Melvin Hester, Mark Warner, Anthony McKinney, and Linwood Roundtree were convicted of
sex offenses and sentenced to serve special sentences of CSL after completion of the custodial portions of their
sentences. At the time of defendants’ sentencing proceedings, under the 1994 version of
N.J.S.A. 2C:43-6.4, a trial
court was required to impose “a special sentence of community supervision for life” on any defendant who
committed an enumerated sex offense. As part of their CSL obligations, defendants were required to abide by more
than twenty general conditions governing the terms of their supervised release. N.J.A.C. 10A:71-6.11(b). At the
time defendants’ sentences were imposed, a violation of any of the terms of the general conditions of CSL
constituted a fourth-degree crime punishable by no more than eighteen months in prison.

In 2003, the Legislature amended
N.J.S.A. 2C:43-6.4, replacing community supervision for life with parole
supervision for life (PSL). L. 2003, c. 267, § 1 (2003 Amendment). The 2003 Amendment provided that an
offender sentenced to PSL would be in the legal custody of the Commissioner of the Department of Corrections and
under the supervision of the State Parole Board for life and that a PSL violation could be prosecuted as a fourth-
degree offense,
N.J.S.A. 2C:43-6.4(d), or treated as a parole violation,
N.J.S.A. 2C:43-6.4(b). In contrast, under
CSL, in the event of a violation of a term of supervised release, the Parole Board’s only option is referral to the
appropriate prosecuting authority, which then decides whether to present the case to a grand jury. The Parole Board
has no power to return a defendant on CSL to prison through the parole-revocation process. One other noteworthy
distinction between CSL and PSL is that a defendant on CSL who commits an enumerated offense is subject to a
mandatory extended term, but is eligible for parole, whereas a defendant on PSL who commits the same offense is
subject to a mandatory extended term, but must serve the entirety of his sentence and then resume his PSL status.

In 2014, the Legislature again amended
N.J.S.A. 2C:43-6.4. L. 2013, c. 214, § 4. That Amendment
provides that a defendant on CSL who violates the terms of his supervised release may be prosecuted for committing
a third-degree crime and faces a presumption of imprisonment.
N.J.S.A. 2C:43-6.4(d). Under the 2014
Amendment, a conviction for a CSL violation also converts a defendant’s CSL status to PSL status.
N.J.S.A. 2C:43-
6.4(a).

Based on the 2014 Amendment, a grand jury returned indictments charging defendants with violating the
general conditions of their CSL. The trial judges presiding over defendants’ cases found that the 2014 Amendment
constituted an ex post facto law, as applied to defendants who were on community supervision for life at the time of
the alleged violations, that violated the United States and New Jersey Constitutions. The Appellate Division
affirmed.
449 N.J. Super. 314, 318 (App. Div. 2017). The Court granted certification. 233 N.J. ___ (2017).

HELD: The Federal and State Ex Post Facto Clauses bar the retroactive application of the 2014 Amendment to
defendants’ CSL violations. The 2014 Amendment retroactively increased the punishment for defendants’ earlier
committed sex offenses by enhancing the penalties for violations of the terms of their supervised release. The
Amendment, therefore, is an ex post facto law that violates the Federal and State Constitutions as applied to defendants.
The Court affirms the judgment of the Appellate Division dismissing defendants’ indictments.
1
1. The United States and New Jersey Constitutions prohibit the State from passing an “ex post facto Law.” U.S.
Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3. An ex post facto law is defined by two critical elements. First,
the law must apply to events occurring before its enactment; and second, it must disadvantage the offender affected
by it. A retroactive law that merely effects a procedural change to a statutory scheme will fall outside of the
constitutional prohibition. In contrast, a law that retroactively imposes additional punishment to an already
completed crime disadvantages a defendant, and therefore is a prohibited ex post facto law. (pp. 12-14)

2. Parole and probation are punishments imposed for the commission of a crime. Community supervision for life
and its corollary parole supervision for life are merely indefinite forms of parole and are also classified as
punishment. A statute that retroactively imposes increased postrevocation penalties on a scheme of supervised
release relates to the original offense. Greenfield v. Scafati,
277 F. Supp. 644, 646 (D. Mass. 1967), aff’d,
390 U.S. 713 (1968), forbade on ex post facto grounds the application of a Massachusetts statute imposing sanctions for
violation of parole to a prisoner originally sentenced before its enactment. The three-judge federal district court
panel rejected the argument that the amended law was not an ex post facto law because Greenfield was on notice of
its consequences before he violated parole. Scafati,
277 F. Supp. at 646. The panel held that the statute denying
Greenfield good-conduct deductions, enacted after the commission of his offense and imposition of his sentence,
materially altered the situation of Greenfield to his disadvantage and therefore constituted prohibited ex post facto
legislation. Ibid. In Weaver v. Graham, the Supreme Court cited Scafati for the proposition that an inmate cannot
be “disadvantaged by new restrictions on eligibility for release” based on a statute enacted after the commission of
the inmate’s crime.
450 U.S. 24, 34 (1981). (pp. 14-16)

3. In keeping with those precedents, the Court has held that a law that retroactively increases the punishment for a
CSL violation constitutes an ex post facto law. In State v. Perez, the defendant was serving a special sentence of
CSL pursuant to
N.J.S.A. 2C:43-6.4 for crimes committed in 1998 when he was convicted in 2011 of child luring
and endangering the welfare of a child.
220 N.J. 423, 428-29 (2015). The 2003 Amendment to
N.J.S.A. 2C:43-6.4
“replaced all references to 'community supervision for life’ with 'parole supervision for life.’” Id. at 429. The trial
court sentenced defendant to a mandatory extended term without parole eligibility, as though he had violated the
terms of PSL, based on the 2
003 Amendment. Id. at 429, 431, 437-38. By contrast, if the pre-amendment version
of
N.J.S.A. 2C:43-6.4 applied, the defendant would have been subject to a mandatory extended term for the new
offenses but eligible for parole. Id. at 438. The Court concluded that the 2003 Amendment to
N.J.S.A. 2C:43-6.4
“enhances the punitive consequences of the special sentence of CSL to [the defendant’s] detriment and violates the
federal and state prohibition of ex post facto legislation.” Id. at 442. (pp. 17-18)

4. Here, 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. 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. 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. 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. The 2014 Amendment to
N.J.S.A. 2C:43-6.4 “enhances the punitive consequences of the special sentence
of CSL to [the defendant’s] detriment” in the same way that the 2003 Amendment did in Perez. See
220 N.J. at 442.
Moreover, the 2014 Amendment retroactively imposes increased postrevocation penalties in the manner condemned
by Scafati,
277 F. Supp. at 644-46, and Weaver,
450 U.S. at 34. (pp. 18-22)

5. The retroactive application of the 2014 Amendment to
N.J.S.A. 2C:43-6.4, which enhanced the punishments for
defendants’ violations of the terms of their supervised release under CSL, violates the Ex Post Facto Clause of the
United States Constitution. Independent of the federal constitutional analysis, the 2014 Amendment violates
defendants’ rights under the New Jersey Constitution’s Ex Post Facto Clause. (p. 22)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-
91 September Term 2016
079228

STATE OF NEW JERSEY,

Plaintiff-Appellant,

MELVIN HESTER,

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

MARK WARNER,

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

ANTHONY MCKINNEY,

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

LINWOOD ROUNDTREE,

Defendant-Respondent.

1
Argued November 28, 2017 – Decided May 30, 2018

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
449 N.J. Super. 314 (App. Div.
2017).

Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for appellant
(Christopher S. Porrino, Attorney General,
attorney; Jennifer E. Kmieciak, of counsel
and on the briefs).

James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for respondent
Linwood Roundtree (Joseph E. Krakora, Public
Defender, attorney; James K. Smith, Jr., of
counsel and on the letter brief).

Molly O’Donnell Meng, Assistant Deputy
Public Defender, argued the cause for
respondents Melvin Hester, Mark Warner, and
Anthony McKinney (Joseph E. Krakora, Public
Defender, attorney; Molly O’Donnell Meng, of
counsel and on the letter brief).

JUSTICE ALBIN delivered the opinion of the Court.

Under the Violent Predator Incapacitation Act, L. 1994, c.

130, §§ 1 and 2, a defendant convicted of certain sex offenses

pursuant to
N.J.S.A. 2C:43-6.4 is required to serve a special

sentence of community supervision for life (CSL).1 We must

determine the constitutionality of the retroactive application

of the 2014 Amendment to
N.J.S.A. 2C:43-6.4 (2014 Amendment), L.

1 The Violent Predator Incapacitation Act is part of a statutory
scheme known as “Megan’s Law.” State v. Perez,
220 N.J. 423,
436-37 (2015).

2
2013, c. 214, § 4 (effective July 1, 2014), which increased the

punishment for the CSL violations committed by the four

defendants in this case.

As a result of their sex-offense convictions, all four

defendants were required to serve a special sentence of

community supervision for life after completion of their prison

terms. The commission of their offenses, the judgments of their

convictions, and the commencement of their sentences all

preceded passage of the 2014 Amendment. Before the 2014

Amendment, a violation of the terms of CSL was punishable as a

fourth-degree crime. See L. 1994, c. 130, § 2. The 2014

Amendment increased a CSL violation to a third-degree crime

punishable by a presumptive term of imprisonment, and such a

violation converted CSL to parole supervision for life (PSL).

See
N.J.S.A. 2C:43-6.4(a) and (d); see also L. 2013, c. 214,

§ 4. Unlike CSL, PSL authorizes the New Jersey Parole Board to

revoke an offender’s supervised release for a PSL violation and

to return the offender to prison. See
N.J.S.A. 2C:43-6.4(b).

After enactment of the 2014 Amendment, all four defendants

allegedly violated the terms of their CSL. They were indicted

for committing third-degree offenses and faced the increased

penalties provided by that Amendment. The trial courts

presiding over defendants’ cases concluded that the 2014

Amendment’s enhanced penalties, as applied to defendants,

3
violated the Ex Post Facto Clauses of the United States and New

Jersey Constitutions and dismissed the indictments. The

Appellate Division affirmed. State v. Hester,
449 N.J. Super.
314, 318 (App. Div. 2017).

We now hold that the Federal and State Ex Post Facto

Clauses bar the retroactive application of the 2014 Amendment to

defendants’ CSL violations. A law that retroactively increases

or makes more burdensome the punishment of a crime is an ex post

facto law. Riley v. Parole Bd.,
219 N.J. 270, 284-85 (2014).

Community supervision for life was a punishment imposed on

defendants at the time they were sentenced. See id. at 288-89.

The 2014 Amendment retroactively increased the punishment for

defendants’ earlier committed sex offenses by enhancing the

penalties for violations of the terms of their supervised

release. The Amendment, therefore, is an ex post facto law that

violates our Federal and State Constitutions as applied to

defendants.

We affirm the judgment of the Appellate Division dismissing

defendants’ indictments.

In separate proceedings, defendants Melvin Hester, Mark

Warner, Anthony McKinney, and Linwood Roundtree were convicted

of sex offenses and sentenced to serve special sentences of

4
community supervision for life in accordance with
N.J.S.A.

2C:43-6.4, after completion of the custodial portions of their

sentences.2 All four defendants had committed their sex offenses

more than ten years before the enactment of the 2014 Amendment

to
N.J.S.A. 2C:43-6.4 and were sentenced under an earlier

iteration of that statute.

At the time of defendants’ sentencing proceedings, under

the 1994 version of
N.J.S.A. 2C:43-6.4, a trial court was

required to impose “a special sentence of community supervision

for life” on any defendant who committed an enumerated sex

offense before January 14, 2004.
3 See L. 1994, c. 130, § 2

(codified at
N.J.S.A. 2C:43-6.4 (1995)); L. 2003, c. 267, § 1

(PSL effective Jan. 14, 2004); N.J.A.C. 10A:71-6.11(a) and (b).

Under CSL, convicted sex offenders, such as defendants, are

“supervised as if on parole and subject to conditions

appropriate to protect the public and foster rehabilitation.”

2 Defendants’ cases, which raised identical constitutional
issues, were consolidated on appeal. Hester,
449 N.J. Super. at 317.
3 The enumerated sex offenses referenced above are “aggravated
sexual assault, sexual assault, aggravated criminal sexual
contact, kidnapping pursuant to
N.J.S.A. 2C:13-1(c)(2),
endangering the welfare of a child by engaging in sexual conduct
which would impair or debauch the morals of the child pursuant
to
N.J.S.A. 2C:24-4(a), luring or an attempt to commit any such
offense.” N.J.A.C. 10A:71-6.11(a).

5 L. 1994, c. 130, § 2; N.J.A.C. 10A:71-6.11(b); see also State v.

Schubert,
212 N.J. 295, 305-08 (2012).

As part of their CSL obligations, defendants were required

to abide by more than twenty general conditions governing the

terms of their supervised release. N.J.A.C. 10A:71-6.11(b).

The general conditions relevant to this appeal obligated each

defendant: to report to his “assigned parole officer as

instructed,” N.J.A.C. 10A:71-6.11(b)(2); to “[r]eside at a

residence approved by the assigned parole officer,” N.J.A.C.

10A:71-6.11(b)(7); to “[o]btain the permission of the assigned

parole officer prior to any change of residence,” N.J.A.C.

10A:71-6.11(b)(8); and to “[c]omply with any curfew established

by the assigned parole officer,” N.J.A.C. 10A:71-6.11(b)(19).

At the time defendants’ sentences were imposed, a violation

of any of the terms of the general conditions of CSL constituted

a fourth-degree crime punishable by no more than eighteen months

in prison. L. 1994, c. 130, § 2; see also
N.J.S.A. 2C:43-

6(a)(4). In the event of a prosecution for a violation,

defendants were entitled to all of the procedural protections of

the criminal justice process, including the right to a grand

jury presentation and trial by jury. The 1994 version of

N.J.S.A. 2C:43-6.4 did not authorize the Parole Board to revoke

defendants’ supervised release and return them to prison, as

6
would be the case of a typical parolee. See L. 1994, c. 130,

§ 2.

A brief history of subsequent amendments to
N.J.S.A. 2C:43-

6.4 gives context to the issue before us.

In 2003, the Legislature amended
N.J.S.A. 2C:43-6.4,

replacing community supervision for life with parole supervision

for life. L. 2003, c. 267, § 1 (2003 Amendment). The 2003

Amendment did not simply give CSL a new name. Rather, it

provided that an offender sentenced to PSL would be in the legal

custody of the Commissioner of the Department of Corrections and

under the supervision of the State Parole Board for life. Ibid.

Under the 2003 Amendment, a PSL violation could be prosecuted as

a fourth-degree offense,
N.J.S.A. 2C:43-6.4(d), or treated as a

parole violation,
N.J.S.A. 2C:43-6.4(b). In contrast, under

CSL, in the event of a violation of a term of supervised

release, the Parole Board’s only option is referral to the

appropriate prosecuting authority, which then decides whether to

present the case to a grand jury. See Perez,
220 N.J. at 441.

The Parole Board has no power to “return a defendant [on CSL] to

prison through the parole-revocation process.” Ibid. (citing

Sanchez v. Parole Bd.,
368 N.J. Super. 181, 184 (App. Div.

2004)).

7
One other noteworthy distinction between CSL and PSL is

that a defendant on CSL who commits an enumerated offense is

subject to a mandatory extended term, but is eligible for

parole,
N.J.S.A. 2C:43-6.4(e)(1) (law effective in 2003 and

earlier), whereas a defendant on PSL who commits the same

offense is subject to a mandatory extended term, but must serve

the entirety of his sentence and then resume his PSL status,

N.J.S.A. 2C:43-6.4(d). Perez,
220 N.J. at 441-42.

In 2015, this Court concluded in Perez that the 2003

Amendment to
N.J.S.A. 2C:43-6.4, which substituted PSL for

defendants already on CSL, violated the Ex Post Facto Clauses of

our Federal and State Constitutions because the conversion

enhanced the penal exposure of those convicted of crimes when

CSL was the applicable law. Id. at 442.

In 2014, the Legislature again amended
N.J.S.A. 2C:43-6.4.

L. 2013, c. 214, § 4. That Amendment provides that a defendant

on CSL who violates the terms of his supervised release may be

prosecuted for committing a third-degree crime:

A person who violates a condition of a special
sentence of community supervision for life
. . . pursuant to this section without good
cause is guilty of a crime of the third degree
[and] . . . shall be sentenced to a term of
imprisonment, unless the court is clearly
convinced that the interests of justice so far
outweigh the need to deter this conduct and
the interest in public safety that a sentence
to imprisonment would be a manifest injustice.

8
[
N.J.S.A. 2C:43-6.4(d) (emphasis added).]

The statutory language makes clear that a defendant convicted of

a CSL violation faces a presumption of imprisonment.

Under the 2014 Amendment, a conviction for a CSL violation

also converts a defendant’s CSL status to PSL status. The

Amendment in relevant part provides:

[A] judge imposing sentence on a person who
has been convicted of . . . violating a
condition of a special sentence of community
supervision for life . . . shall include, in
addition to any sentence authorized by this
Code, a special sentence of parole supervision
for life.

[N.J.S.A. 2C:43-6.4(a).]

Based on the 2014 Amendment, the Essex County Grand Jury

returned four separate indictments charging defendants Hester,

Warner, McKinney, and Roundtree with violating the general

conditions of their CSL. All four defendants were charged with

third-degree offenses: (1) Hester for failing to reside at a

residence approved by a parole officer, to obtain permission to

change his address, and to comply with curfew requirements; (2)

Warner for failing to reside at a residence approved by a parole

officer and to obtain permission to change his address; (3)

McKinney for failing to report to his parole officer; and (4)

Roundtree for failing to reside at a residence approved by a

9
parole officer, to obtain permission to change his address, and

to report to his parole officer.

As a consequence of the 2014 Amendment, each defendant, if

convicted, faced a three-to-five-year prison term with a

presumption of incarceration and the imposition of a special

sentence of parole supervision for life. See
N.J.S.A. 2C:43-

6(a)(3);
N.J.S.A. 2C:43-6.4(a) and (d).

The trial judges presiding over defendants’ cases found

that the 2014 Amendment to
N.J.S.A. 2C:43-6.4 constituted an ex

post facto law as applied to defendants who were on community

supervision for life at the time of the alleged violations.

Because the Amendment increased the punishment for a violation

of the general conditions of defendants’ supervised release from

a fourth-degree offense (the law in effect when defendants

committed their underlying offenses) to a third-degree offense,

the judges determined that the 2014 Amendment, as applied,

violated the Ex Post Facto Clauses of the United States and New

Jersey Constitutions.

The Appellate Division affirmed. Hester,
449 N.J. Super.

at 318. The panel held that, in contravention of the Federal

and State Ex Post Facto Clauses, the 2014 Amendment

retroactively increased defendants’ punishment for a CSL

violation by elevating the penalty from a fourth-degree to a

10
third-degree crime and by mandating the imposition of PSL.

Ibid. In an opinion written by Judge Fasciale, the panel

rejected the State’s argument that the Amendment did not

increase the punishment for defendants’ pre-2014 sex offenses

but rather punished the commission of new crimes -- the CSL

violations. Id. at 328-31.

We granted the State’s petition for certification. 233

N.J. ___ (2017).

II.

The State argues that the Appellate Division erred in

finding that the 2014 Amendment to
N.J.S.A. 2C:43-6.4

constituted an ex post facto law as applied to defendants. The

State maintains that the 2014 Amendment placed defendants on

notice that if they violated the conditions of CSL, they would

face conviction for a third-degree offense and conversion of CSL

to PSL. Because defendants committed their CSL violations after

the effective date of the Amendment, the State reasons that they

committed new crimes subject to new statutory punishments and

therefore the Amendment did not relate back or increase the

punishment for defendants’ predicate sex offenses.

Defendants urge this Court to affirm the Appellate

Division’s dismissal of their indictments on ex post facto

11
grounds. Defendants contend that the 2014 Amendment

substantively altered the terms of their supervised release by

exposing them to an enhanced punishment -- a third-degree rather

than a fourth-degree crime -- for a CSL violation and conversion

of their CSL status to PSL status. They claim that when a

defendant is placed on supervised release, any statutory

amendment enhancing the punishment for a CSL violation, beyond

the punishment existing at the time of the commission of the

predicate offense, relates back to the predicate offense and

cannot be retroactively applied.4

III.

The United States and New Jersey Constitutions prohibit our

State from passing an “ex post facto Law.” U.S. Const. art. I,

§ 10, cl. 1 (“No State shall . . . pass any . . . ex post facto

Law[.]”); N.J. Const. art. IV, § 7, ¶ 3 (“The Legislature shall

not pass any . . . ex post facto law[.]”). An ex post facto law

includes “[e]very law that changes the punishment, and inflicts

a greater punishment, than the law annexed to the crime, when

committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798);

see also Riley,
219 N.J. at 284-85. Thus, “any statute . . .

4 Defendants’ challenge to the constitutionality of the 2014
Amendment, as applied, is limited to those defendants on CSL for
offenses that predated the enactment of the Amendment.

12
which makes more burdensome the punishment for a crime, after

its commission, . . . is prohibited as ex post facto.” Beazell

v. Ohio,
269 U.S. 167, 169-70 (1925).

We have construed New Jersey’s Ex Post Facto Clause in the

same manner as its federal counterpart. Riley,
219 N.J. at 284;

Doe v. Poritz,
142 N.J. 1, 42 (1995). Both Ex Post Facto

Clauses ensure “that individuals can rely on laws until they are

'explicitly changed,’” and “restrict[] the government from

passing 'potentially vindictive legislation.’” Riley,
219 N.J.

at 284 (quoting Carmell v. Texas,
529 U.S. 513, 566 (2000)).

Both Clauses are “aimed at laws that 'retroactively . . .

increase the punishment for criminal acts.’” Perez,
220 N.J. at
438 (quoting Cal. Dep’t of Corr. v. Morales,
514 U.S. 499, 504

(1995)).

An ex post facto law is defined by two critical elements.

“[F]irst, the law 'must be retrospective, that is, it must apply

to events occurring before its enactment’; and second, 'it must

disadvantage the offender affected by it.’” Miller v. Florida,

482 U.S. 423, 430 (1987) (quoting Weaver v. Graham,
450 U.S. 24,

29 (1981)). A retroactive law that merely effects a procedural

change to a statutory scheme will fall outside of the

constitutional prohibition. Ibid. (citing Dobbert v. Florida,

432 U.S. 282, 293 (1977)); Perez,
220 N.J. at 438-39. In

contrast, a law that retroactively “imposes additional

13
punishment to an already completed crime” disadvantages a

defendant, and therefore is a prohibited ex post facto law. See

Riley,
219 N.J. at 285 (citing Kansas v. Hendricks,
521 U.S. 346, 370 (1997)).

The State contends that the “completed crime” is the CSL

violation, whereas defendants assert that the “completed crime”

is the predicate offense. Here, because the additional

punishment attaches to a condition of defendants’ sentences, the

“completed crime” necessarily relates back to the predicate

offense. See Perez,
220 N.J. at 442; see also Hester,
449 N.J.

Super. at 318 (holding that “the predicate crime, for which

defendants received the special sentence of CSL, is the

operative 'crime’” in determining that 2014 Amendment violated

Ex Post Facto Clauses).

Parole and probation are punishments imposed for the

commission of a crime, Riley,
219 N.J. at 288, and parole “is,

in legal effect, imprisonment,” Anderson v. Corall,
263 U.S. 193, 196 (1923). “Community supervision for life and its

corollary parole supervision for life are merely indefinite

forms of parole” and are also classified as punishment. Riley,

219 N.J. at 288-89; see also Perez,
220 N.J. at 441 (“[T]he

Legislature has manifested that CSL and PSL were and are

14
intended to be penal rather than remedial post-sentence

supervisory schemes.”).

A statute that retroactively imposes increased

“postrevocation penalties [on a scheme of supervised release]

relate[s] to the original offense,” raising the issue of whether

the defendant is “worse off” for ex post facto purposes.

Johnson v. United States,
529 U.S. 694, 701 (2000).5 In finding

that postrevocation penalties must be attributed to an original

conviction, the United States Supreme Court in Johnson referred

to its summary affirmance of a three-judge panel in Greenfield

v. Scafati,
277 F. Supp. 644 (D. Mass. 1967), aff’d,
390 U.S. 713 (1968), which “forbade on ex post facto grounds the

application of a Massachusetts statute imposing sanctions for

violation of parole to a prisoner originally sentenced before

its enactment.”
529 U.S. at 701.

In that case, Greenfield was sentenced to prison under a

law that entitled him to good-conduct deductions from his

sentence for the duration of his incarceration.
277 F. Supp. at
644-45. While Greenfield was still imprisoned, Massachusetts

5 In Johnson, the United States Supreme Court elided the ex post
facto issue by finding that a preexisting statute permitted the
imposition of the same penalties for a violation of supervised
release that the government argued were permissible under the
later-enacted statute for which it argued retroactive
application. See
529 U.S. at 701-13.

15
amended the law, which then provided that a paroled prisoner who

violated the terms of his release and was returned to prison

would be ineligible for good-conduct deductions for the first

six months of his reincarceration. Id. at 645. After being

paroled, Greenfield violated the terms of his release and was

returned to prison. Ibid. Greenfield challenged on ex post

facto grounds the amended law’s denial of good-conduct

deductions for the period after his reincarceration. Id. at

644-45. The three-judge federal district court panel rejected

the argument that the amended law was not an ex post facto law

because Greenfield was on notice of its consequences before he

violated parole. Id. at 646. The panel held that the statute

denying Greenfield good-conduct deductions, enacted after the

commission of his offense and imposition of his sentence,

“materially 'alter[ed] the situation of [Greenfield] to his

disadvantage’” and therefore constituted prohibited ex post

facto legislation. Ibid. (quoting State ex rel. Woodward v. Bd.

of Parole,
99 So. 534, 536 (La. 1924)).

In Weaver, the Supreme Court approvingly cited Scafati for

the proposition that an inmate cannot be “disadvantaged by new

restrictions on eligibility for release” based on a statute

enacted after the commission of the inmate’s crime.
450 U.S. at
34.

16
In keeping with those precedents, our Court has held that a

law that retroactively increases the punishment for a CSL

violation constitutes an ex post facto law. In Perez, the

defendant was serving a special sentence of community

supervision for life pursuant to
N.J.S.A. 2C:43-6.4 for crimes

committed in 1998 when he was convicted in 2011 of child luring

and endangering the welfare of a child.
220 N.J. at 428-29.

The 2003 Amendment to
N.J.S.A. 2C:43-6.4 “replaced all

references to 'community supervision for life’ with 'parole

supervision for life.’” Id. at 429 (citing L. 2003, c. 267,

§ 1). The trial court sentenced defendant to a mandatory

extended term without parole eligibility, as though he had

violated the terms of PSL, based on the 2003 Amendment. Id. at

429, 431, 437-38. By contrast, if the pre-amendment version of

N.J.S.A. 2C:43-6.4 applied, the defendant, given his CSL status,

would have been subject to a mandatory extended term for the new

offenses but eligible for parole. Id. at 438. Because the

defendant was sentenced under the amended statute’s PSL

designation, he was also subject to the Parole Board’s authority

to revoke his supervised release. Id. at 441.

We concluded in Perez that the 2003 Amendment rendered more

than “a simple change in nomenclature” or “a simple

clarification of the Legislature’s intent about the nature of

the special condition of post-sentence supervision of certain

17
sexual offenders.” Id. at 440-43. The 2003 Amendment to

N.J.S.A. 2C:43-6.4 required the defendant “to spend many

additional years in prison due to this so-called clarification.”

Id. at 442. Accordingly, we held that the 2003 Amendment

“enhances the punitive consequences of the special sentence of

CSL to [the defendant’s] detriment and violates the federal and

state prohibition of ex post facto legislation.” Ibid.

We now turn to the facts of the case before us.

IV.

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).

18
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.6 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.
220 N.J. at
441.

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,
162 N.J. 580,

587 (2000).

In Oliver, we upheld the constitutionality of New Jersey’s

three-strikes law,
N.J.S.A. 2C:43-7.1, which mandated the

6 At a parole-revocation hearing, the Parole Board may revoke a
defendant’s parole solely on clear and convincing evidence of a
violation of the conditions of parole.
N.J.S.A. 30:4-123.63(d).
An administrative officer -- not a judicial officer -- sits as
the final arbiter of the facts. See
N.J.S.A. 30:4-123.63.

19
imposition of a life sentence without the possibility of parole

for defendants convicted of certain violent crimes on three

separate occasions. Id. at 583-85, 595. 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. Id. at 587-91.

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

20
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.

This case is not substantively different from Perez, where

we held that the 2003 Amendment to
N.J.S.A. 2C:43-6.4, which

retroactively altered a defendant’s status from CSL to PSL,

exposed a defendant to an increased punishment for a violation

of supervised release, and therefore contravened the Federal and

State Ex Post Facto Clauses.
220 N.J. at 427-28, 442. This

case is also indistinguishable from Scafati, where the United

States Supreme Court affirmed a three-judge federal district

court panel’s injunction of a Massachusetts law that

retroactively altered the manner of awarding good-conduct

deductions after the defendant’s sentence but before he violated

parole.
390 U.S. 713;
277 F. Supp. at 644-46.

The 2014 Amendment to
N.J.S.A. 2C:43-6.4 “enhances the

punitive consequences of the special sentence of CSL to [the

defendant’s] detriment” in the same way that the 2003 Amendment

did in Perez. See
220 N.J. at 442. Moreover, the 2014

Amendment retroactively imposes increased postrevocation

penalties in the manner condemned by Scafati,
277 F. Supp. at
644-46, and Weaver,
450 U.S. at 34.

21
In effect, the 2014 Amendment materially altered

defendants’ prior sentences to their disadvantage -- increasing

to a third-degree crime a violation of the terms of their

supervised release and converting their CSL to PSL, thus

empowering the Parole Board to return them to prison for a

violation, such as failing to report a change of address. The

2014 Amendment effected not a simple procedural change but

rather one that offends the very principles animating the Ex

Post Facto Clauses of our Federal and State Constitutions.

For the reasons expressed, we hold that the retroactive

application of the 2014 Amendment to
N.J.S.A. 2C:43-6.4, which

enhanced the punishments for defendants’ violations of the terms

of their supervised release under CSL, violates the Ex Post

Facto Clause of the United States Constitution. We also hold

that, independent of our federal constitutional analysis, the

2014 Amendment violates defendants’ rights under the New Jersey

Constitution’s Ex Post Facto Clause. See Michigan v. Long,
463 U.S. 1032, 1041 (1983). We therefore affirm the judgment of the

Appellate Division dismissing defendants’ indictments, which

charged them with the third-degree crime of violating the

general conditions of their supervised release under N.J.A.C.

10A:71-6.11(b).

22
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.