Curfews and Electronic Monitoring of Probationers

Some probationers are subject to a curfew—a time each day (usually in the evening or at night) when they are restricted to their residence. Recent changes to the law have generated some questions about curfews. In particular, there appears to be some confusion about whether a curfew can or must be monitored electronically. This post collects the relevant statutes and discusses some of the legal issues raised by electronically-monitored curfews.

At the outset, I should be clear about what I mean by electronic monitoring. As a result of legislation passed in 2011, “electronic monitoring” is a defined term throughout Chapter 15A. S.L. 2011-245 (SB 311). It means “monitoring with an electronic monitoring device that is not removed from a person’s body, that is utilized by the supervising agency in conjunction with a Web-based computer system that actively monitors, identifies, tracks, and records a person’s location at least once every minute 24 hours a day . . . .” G.S. 15A-101.1(3a). Thus, when electronic monitoring is statutorily required, it necessarily involves a pretty high-powered technology. In fact, when Community Corrections monitors a curfew electronically, they use the very same GPS-enabled ankle bracelets that they use for satellite-based monitoring of sex offenders (albeit with different policy guidelines for how officers respond to perceived violations).

But when is electronic monitoring of a curfew actually required by statute? Pretty rarely, as it turns out. There are three types of probation curfews: two that may be imposed by a judge and one that may be imposed by a probation officer through delegated authority.

Curfew as a special condition of probation. In general, a curfew is neither a regular nor statutory special condition of probation. It is, rather, something the court may order as an ad hoc special condition of probation under authority of G.S. 15A-1343(b1)(10). The court of appeals once referred to G.S. 15A-1343(b1)(3c) as a curfew condition, see State v. Lambert, 146 N.C. App. 360 (2001), but I think that statutory subdivision more clearly describes electronic house arrest, which is more restrictive than a curfew. The companion fee provision in G.S. 15A-1343(c2) even refers back to subdivision (b1)(3c) as “house arrest with electronic monitoring.” When the court orders electronic house arrest under special condition G.S. 15A-1343(b1)(3c), the law says the offender “shall be required to wear a device which permits the supervising agency to monitor the offender’s compliance with the condition electronically . . . .”  There is no similar provision requiring electronic monitoring for a curfew ordered by the court. A judge could, of course, order monitoring in conjunction with the curfew, but it is not required.

Curfew as part of intensive supervision. Under prior law, a curfew was a standard component of intensive supervision under G.S. 15A-1340.11(5) (defining intensive supervision as probation that requires, among other things, “a specific period each day during which the offender must be at his or her residence”). But even for intensive probationers there was no statutory requirement for the curfew to be monitored electronically. (The Justice Reinvestment Act repealed intensive supervision for probationers with offense dates on and after December 1, 2011, but there are still over 1,700 offenders on intensive supervision.)

Curfew imposed through delegated authority. A probation officer can add a curfew through delegated authority in Structured Sentencing cases. The delegated authority curfew condition allows the officer to require the probationer to “[s]ubmit to a curfew which requires the offender to remain in a specified place for a specified period each day and wear a device that permits the offender’s compliance with the condition to be monitored electronically.” G.S. 15A-1343.2(e) and (f). (The condition is now identical for both community and intermediate probationers.) So, a curfew imposed by a probation officer through delegated authority apparently must be monitored electronically. And because the statute mentions electronic monitoring, the monitoring must be done in a way that complies with the technical requirements of G.S. 15A-101.1(3a). Recall that the officer may only exercise delegated authority in response to a violation or for offenders who fall in supervision levels 1 and 2.

To sum up, only the officer-imposed curfew condition must be monitored electronically. May a judge order electronic monitoring alongside the curfew as a special condition of probation? Yes (assuming the condition is reasonably related to the defendant’s rehabilitation, as required by G.S. 15A-1343(b1)(10)). May a judge order a curfew without also ordering electronic monitoring? Of course. Community Corrections is considering a policy of using electronic monitoring to enforce all curfews (regardless of whether monitoring is mentioned in the judgment), but they have not yet adopted that rule. If they do, I’ll write more about it here.