Yesterday I went to Lillington to teach a class for the inmates in the North Carolina prison system’s Sex Offender Accountability and Responsibility (SOAR) program. I’d like to share a little bit about what I taught—and what I learned.
The lone sex offender treatment program in the North Carolina prison system is the SOAR program at Harnett Correctional Institution in Lillington. Around 50 inmates participate in the program at any given time. All of the participants are men; there is no counterpart program for women. Recidivism data for SOAR program participants are promising. As I noted in my recap of the Sentencing Commission’s most recent recidivism report, graduates have the lowest rates of re-arrest and reimprisonment of any correctional program.
The psychologist who runs the program invited me to come talk to the inmates about sex offender sentencing, registration, and monitoring. He is always kind enough to come teach in our classes for judges and lawyers in Chapel Hill, so making the trip to Lillington was the least I could do. He said the participants had a few questions, and that he would email them to me in advance.
He sent me a list of 51 distinct questions. Some of the questions were basic. Will I have to register? For how long? How much does it cost? Some were harder to answer. Can I go to a PG movie? Can I go to church? Will they implant a chip in my arm? What if I’m homeless?
I didn’t answer every question—not even close. But I covered as many as I could.
I started with a discussion about how the sentencing law works for sex offenders, and what I learned is that many of the inmates did not have a clear understanding of how their sentences would play out in practice. In particular, there was a lot of confusion about post-release supervision. Many of the men told me they were advised by their lawyer that they would not be subject to the 5-year (60 month) post-release supervision period for sex offenders unless they had 60 extra months built into their maximum sentence. That is incorrect.
The five-year post-release supervision period applies to any sex crime that requires post-release supervision—or at least any such sex crime committed on or after December 1, 1996. That is when the General Assembly amended G.S. 15A-1368.2(c) to say that reportable sex crimes would have a 5-year post-release supervision period. S.L. 1996-18 (second extra session).
Of course, for offenses committed before December 1, 2011, that rule only applied to Class B1–E sex offenders, because Class F–I sex offenders didn’t get any post-release supervision at all back then. But after Justice Reinvestment, all felons get post-release supervision. That means that even Class F–I felons have PRS, which in turn means that the sex offenders among those lower-level felons—including Class F indecent liberties offenders—get pulled into the 5-year rule in G.S. 15A-1368.2(c). That is true even though Class F–I felons are not subject to the special maximum sentence rule that adds 60 months to the maximum sentence for any Class B1–E felony sex offender. I wrote about all of this here, in 2011.
The bottom line is that Class F–I sex offenders have a 5-year supervision period but only 9 extra months built into their maximum term of imprisonment. I wrote here about how that longer term of PRS can be a surprise, and yesterday’s conversations confirmed that the issue is by no means an academic one.
There were other questions related to PRS. For example, many of the men are sex offenders who are now serving time for some other non–sex crime. They asked whether they, as registrants, would have to do 5 years of PRS for their non–sex crimes in the same way they did for their reportable crimes. The answer is no. The 5-year period applies only to crimes that themselves require registration, not to any felony committed by a sex offender. That includes registration violations like failure to register.
There were lots of questions about the length of registration, and many of those turned on which offenses qualified as an “aggravated offense.” An aggravated offense is one that includes engaging in a sexual act involving vaginal, anal, or oral penetration, either through the use of force or the threat of serious violence, or with a victim who is less than 12 years old. G.S. 14-208.6(1a). Aggravated offenders are subject to registration and monitoring for life.
You may recall that a series of cases decided nearly a decade ago said that a trial judge is to review only the elements of the conviction offense, not the underlying facts of the case, when determining whether an offense meets the aggravated offense definition. State v. Davison, 201 N.C. App. 354 (2009) (discussed here). With that rule in place, crimes like indecent liberties with a child, sexual offense, and attempted rape can never be aggravated offenses. Nevertheless, some of the men I met yesterday were ordered to lifetime registration and monitoring as aggravated offenders for those offenses. I also talked to some who were ordered to lifetime monitoring for offenses involving the mental, physical, or sexual abuse of a minor. That’s not allowed. State v. Cowan, 207 N.C. App. 192 (2010) (discussed here).
We talked briefly about some of the restrictions on registrants—mainly the premises restrictions of G.S. 14-208.18—and some of the constitutional issues working their way through the courts. A few of the men had heard of Packingham v. North Carolina, but no one had heard of Grady v. North Carolina. I didn’t have time to talk much about petitions to terminate registration—which was probably for the best, because I haven’t perfected my plain language explanation of the SORNA tier chart. A topic for another visit, perhaps.
I learn a lot every time I visit a prison, and yesterday was no exception. I’ll continue to try to incorporate some of the real-world issues I learned about into my teaching and writing.