Ad Hoc Conditions of Probation

Under G.S. 15A-1343(b1)(10), a court may, in addition to the regular conditions of probation and any statutory special conditions, require a defendant to “[s]atisfy any other conditions determined by the court to be reasonably related to his rehabilitation.” Any ad hoc conditions must also bear a relationship to the defendant’s crime. State v. Cooper, 304 N.C. 180 (1981). Our appellate courts have interpreted the catch-all provision broadly, giving trial judges “substantial discretion” in tailoring a judgment to fit a particular offender and offense. State v. Johnston, 123 N.C. App. 292 (1996).

State v. Cooper is a leading case. In it, the defendant was convicted of fourteen counts of possession of stolen credit cards. He was placed on probation with a condition that he “not operate a motor vehicle on the streets or highways of North Carolina from 12:01 a.m. until 5:30 a.m. during the period of probation.” 304 N.C. at 181–82. He challenged the condition, arguing that it bore no relationship to his offense and was not reasonably related to his rehabilitation. The supreme court disagreed, essentially relying on the maxim that nothing good happens after midnight: a restriction on motor vehicle use minimized the defendant’s “opportunity for contact with persons engaged in criminal activities”—even if his crime didn’t happen at night, and even if it had nothing to do with driving (although the defendant failed to show either of those things). Id.

Other ad hoc conditions upheld over the years include:

  • A condition prohibiting the probationer from working as a contractor, when he had been convicted of obtaining property by false pretenses from a homeowner by claiming to be a painting contractor. State v. Simpson, 25 N.C. App. 176 (1975).
  • A condition requiring the defendant to “abstain personally, entirely, from the use of intoxicating liquors,” when he had been convicted of a violation of the prohibition law. 187 N.C. 609 (1924).
  • A condition prohibiting a sex offender from being in a child’s “presence.” State v. White, 129 N.C. App. 52 (1998).

An ad hoc condition of probation will be deemed invalid if it is not reasonably related to the probationer’s rehabilitation, or if it bears no reasonably relationship to the probationer’s crime. A condition will also be stricken it violates a statute or the Constitution. State v. Caudle, 276 N.C. 550 (1970) (“A condition which is a violation of the defendant’s constitutional right and, therefore, beyond the power of the court to impose is per se unreasonable.”). In State v. Lambert, 146 N.C. App. 360 (2001), for example, the court of appeals noted the invalidity of special probation condition prohibiting a defendant from filing court documents unless they were signed and filed by a licensed attorney. Even thought the defendant, a paralegal, had been convicted for the unauthorized practice of law, the condition unreasonably infringed on his fundamental right of access to the courts and his right to conduct his defense pro se.

Other ad hoc conditions held invalid over the years include:

  • A condition requiring the defendant to leave North Carolina for two years. State v. Doughtie, 237 N.C. 368 (1953).
  • A condition requiring a probationer to withdraw his appeal in another pending case. State v. Rhinehart, 267 N.C. 470 (1966).
  • Conditions requiring defendants to make payments to the local police for “continued enforcement,” under the rationale described here. Shore v. Edmisten, 290 N.C. 628 (1976).

Nationally, conditions directed at a defendants’ personal appearance (e.g., “get a haircut,” Simpson v. State, 772 S.W.2d 276 (Tex. App. 1989)), or personal relationships (e.g., “don’t get anyone other than your wife pregnant,” United States v. Smith, 972 F.2d 960 (8th Cir. 1992)) are generally stricken. Similarly, as Jeff mentioned in a news roundup in January, the Second Circuit invalidated a condition requiring a convicted sex offender, upon entering a “significant romantic relationship,” to inform his partner of his sex crime. United States v. Reeves, 591 F.3d 77 (2d Cir. 2010). The court deemed the condition unreasonably vague, declaring it impossible to find a common definition of what makes a romantic relationship “significant.”

Courts are divided on so-called “Hester Prynne” conditions—those requiring probationers to inform others of their offense by, for example, wearing a sign or placing a bumper sticker on their car. See generally Phaedra Athena O’Hara Kelly, The Ideology of Shame: An Analysis of First Amendment and Eighth Amendment Challenges to Scarlet-Letter Probation Conditions, 77 N.C. L. Rev. 783 (1999). Some courts conclude that the conditions don’t further the defendant’s rehabilitation. See, e.g., People v. Meyer, 680 N.E.2d 315 (Ill. App. 1988) (invalidating a condition requiring a probationer to post a sign at his house saying “WARNING: A VIOLENT FELON LIVES HERE. ENTER AT YOUR OWN RISK”); People v. Letterlough, 655 N.E.2d 146 (N.Y. 1995) (overturning a condition requiring the probationer to put a fluorescent “CONVICTED DWI” sign around his license plate). Others have upheld similar conditions. See, e.g., Ballenger v. State, 436 S.E.2d 793 (Ga. App. 1993) (requiring a probationer to wear a bracelet saying “DUI CONVICT”). I’m not aware of similar cases in North Carolina, but I hope you might share examples you’ve seen.

Finally, a procedural note. By statute, a defendant’s failure to object to a condition of probation at the time of sentencing does not constitute a waiver of the right to raise the objection at a later time. G.S. 15A-1342(g). The supreme court has said the “at a later time” language of the statute does not grant the defendant a “perpetual right” to challenge a condition of probation. Rather, he or she must do so no later than the hearing at which a violation of the condition is being considered. Cooper, 304 N.C. at 183. Later challenges—for instance, those raised on appeal of a probation revocation—will be deemed an improper collateral attack on the underlying judgment. State v. Rush, 158 N.C. App. 738 (2003).

4 thoughts on “Ad Hoc Conditions of Probation”

  1. I know an officer that had a judge order a probationer to have prenatal care and birth control counseling. I don’t know how the judge expected the officer to confirm the birth control counseling….

  2. raji: “Ad hoc” is Latin that literally translates to “for this”–as in, for a particular case. So, there’s the regular list of conditions in the statute, and then the court can also add “ad hoc” conditions, that is, conditions the court makes up for a particular case.


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.