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Sex Offender Registration as a Bargaining Chip

December 8th, 2010
By Jamie Markham

I am sometimes asked if a defendant convicted of a reportable sex crime can plea bargain his or her way out of the obligation to register. I have also been asked if a defendant convicted of a non-reportable offense can plead his or her way into registration.

A formal advisory opinion from that state attorney general’s office suggests that the answer to both questions is no. The June 24, 2002 opinion letter, available here, was issued in response to a sheriff’s inquiry as to whether a particular person was required to register as a result of a federal conviction for sexual abuse of a ward. The letter concluded that the offender needed to register because that crime is substantially similar to G.S. 14-27.7(a), intercourse and sexual offense with certain victims, an offense that is reportable here. The opinion probably could have left it at that, but it went on to say that “it is our opinion that once an offender is convicted of a reportable offense . . . . the individual is subject to registration and no authority exists to alter this requirement. . . . No exceptions exist in North Carolina’s Sex Offender Registry Program either to exclude an otherwise registerable offender from the program, or to include an otherwise non-registerable offender in the program.”

I tend to agree. At the most basic level, plea agreements purporting to excuse a defendant from the obligation to register for a reportable conviction appear to run afoul of G.S. 14-208.7, which says offenders with a reportable conviction “shall be required to maintain registration.” Just as a defendant may not plea bargain around the sentencing laws, it seems to me that he or she may not plead around the registration requirement. See State v. Wall, 348 N.C. 671 (1998) (holding a defendant was not entitled to specific performance of a plea bargain for a concurrent sentence when a consecutive sentence was required by law, notwithstanding the prosecutor’s consent).

Moreover, it’s not clear that sex offender registration is generally something the court has authority to order (or not order) at all. Only in cases involving peeping crimes under G.S. 14-202(l) and aiding and abetting under G.S. 14-208.6(4)(a) does the court have to enter an affirmative order or make findings to trigger the registration requirement. Otherwise, aside from probationers ordered register as a special condition of probation under G.S. 15A-1343(b2), registration is a matter between the registrant and the sheriff that flows from the reportable conviction alone. But see State v. Phillips, __ N.C. App. __, 691 S.E.2d 104 (2010) (referencing a trial court “order requiring defendant to register as a sex offender for the duration of his natural life”). Only since the advent of determination hearings for satellite-based monitoring have trial courts routinely entered “orders” (on forms AOC-CR-615) requiring registration. The judicial notification required under G.S. 14-208.8 for defendants who do not receive an active sentence (for which judges may use AOC-CR-261) is not an order, but rather notice to the defendant of his or her duty to register.

I’ve heard this issue might soon be before the court of appeals. If it results in a reported case I’m sure I’ll write something about it here.

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5 Responses to “Sex Offender Registration as a Bargaining Chip”

  1. Kemp Phillips says:

    Jamie,
    Have you heard about the case in Salinas, California about the police officer that plead guilty and was offered a choice between 3 years in prison or probation and he would have to register as a sex offender? The officer chose prison over registering. How do you think this will affect the courts view of the registry and whether or not it is punitive? What is your opinion about the registry? Do you think it is punitive?

  2. Defender says:

    In my court appointed work, I have had several cases recently where my client who was charged with a registerable offense was given the choice to two plea offers: 1. plead guilty to a non-registerable felony with the sentence up to the judge or 2. plead guilty to sexual battery with probation (which requires registration as a sex offender).

    A majority of these clients took the felony to avoid our modern day, and in my opinion much harsher given the restrictions on where these people can go, version of the scarlet letter.

    • Kemp Phillips says:

      I think most people consider the registration punitive. The courts have not seen it that way yet but it seems as though it is trending in that direction. It is hard to deny it if people are chosing prison time over the registration. Do you think that these situations could be used in an ex post facto case against the registration?

    • Kemp Phillips says:

      Your reply makes Jamie’s article seem naive about the registration being used as a bargaining chip. He should be more familiar with how the system works.

  3. nescafe says:

    Can DOC’s use this threat of registering inmates as sexual predators even when they did not actually commit a sexual offense. According to the original court plea bargaining agreement and judgment he was convicted of 2 charges of kidnapping: 1 adult and 1 child because he would not let them use the phone. The original had four types of offenses listed under #8 and they were: 8. finds the above named offense(s) is a reportable conviction. GS 14-208.6 item d. and finds the above designated offense(s) x is an offense against a minor. There was no sexual offense of any kind, but the NCDOC is now suddenly threatening him to admit to a sexual offense or he cannot go to honor grade or get any other opportunities. I wonder if they are refusing him medical treatment in order to get him to admit to that particular offense. They told him he had an abscess on his heart about 4 months ago, but they did not tell him what it means or what treatment, warnings he needs to heed or anything. He has requested to see the Dr. but only gets to see the nurse and she can’t help him. He wonders why they won’t tell him if he can play ball, or exercise or maybe they just want him to drop dead and pretend they didn’t know anything about it until they get what they want.

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