Is Being Homeless a Probation Violation?

A probation violation must be willful. In this prior post I wrote about the burden-shifting process in which the State must prove to the court’s reasonable satisfaction that a violation has occurred, and then the defendant has an opportunity to show that the failure to comply was not willful. The issue often arises in the context of monetary violations, where the defendant must—according to a statutory clause that includes a convoluted triple-negative—be given an opportunity to show that “nonpayment was not attributable to a failure . . . to make a good faith effort to obtain the necessary funds for payment.” G.S. 15A-1364; -1345(e).

Two recent cases from the court of appeals discuss the willfulness of a different type of violation: homeless sex offenders’ inability to find a suitable residence.

In State v. Talbert, a defendant was sentenced to probation for failing to register as a sex offender. He also received an active sentence for a larceny conviction. On the day he was to be released from prison, Talbert’s probation officer met with him to see if he had found a suitable place to live. He had not. He had no money and no family, and shelters had refused him because he was a sex offender. This was a problem, because Talbert was subject to a special condition of probation pursuant to Probation’s “Sex Offender Control Program” that required him to “[r]eside at a residence to be approved by the supervising officer.” Before Talbert ever left prison his probation officer filed a violation report and arrested him for failing to have an approved residence. At the violation hearing Talbert asked for a day or two to call friends to find a place to live, something he had not been able to do from prison. The probation officer, seeing no “light at the end of the tunnel,” recommended revocation and the court revoked.

State v. Askew has similar facts. A defendant sentenced to probation for indecent liberties with a child was due to be released from a prison sentence for another conviction. His probation judgment ordered him to report to his probation officer within 24 hours of his release from the active sentence. He never got the chance. Instead, his probation officer arrested him before he left the prison, alleging that he violated his intensive probation by failing to have an approved residence plan. At the revocation hearing the judge questioned how the defendant could have willfully violated the condition before ever being released. The probation officer testified that “DCC policy requires offenders on intensive probation to provide a suitable residence before they are released.” The trial court revoked the defendant’s probation.

Both Talbert and Askew argued on appeal that their respective violations were not willful. In both cases, the court of appeals agreed. Each opinion began by citing the rule that “a defendant’s probation should not be revoked because of circumstances beyond his control.” State v. Duncan, 270 N.C. 241 (1967). In Talbert’s case, the court disagreed that the defendant had “exerted minimal effort” in finding an approved residence. To the contrary, his lack of family and money and the difficulty of finding a shelter that will house sex offenders were sufficient proof that his violation was not willful. The court also noted that the State failed to point to any specific Community Corrections policy saying that a homeless person could not satisfy the suitable residence requirement. In Askew’s case, the court likewise concluded that it was premature to arrest the defendant for failing to find a suitable place to live before he was ever released from incarceration. He was never given a full opportunity to find a place to live—something that is difficult for many felons, much less a sex offender (who is subject to residency restrictions under G.S. 14-208.16 and other premises restrictions under G.S. 14-208.18) who was still behind bars. The court reversed both revocation judgments.

In light of Talbert and Askew, Community Corrections may need to update its policies on the process for finding a suitable residence for a sex offender. On the other hand, some parts of the cases are a little out of date and may not come up again. First, Talbert was apparently subject to the “Sex Offender Control Program,” an additional set of conditions that Community Corrections formerly asked courts to add in sex offender cases. I thought the program had been discontinued by the time Talbert was placed on probation in September 2010 (I discussed DAC’s discontinuation of the program in this post from July 2010), but perhaps it continued as a matter of local practice. Either way, Talbert was on probation for failing to register as a sex offender—which is not itself a reportable conviction. Even under the terms of the old program (described on this form), I’m not sure he should have been subject to it. Askew was subject to the rules of intensive supervision, which the Justice Reinvestment Act repealed for defendants on probation for offenses committed on or after December 1, 2011. And of course, under the JRA, neither of these violations would have been revocation-eligible had they occurred on or after December 1, 2011. Sex offenders who are post-release supervisees can be revoked for technical violations, G.S. 15A-1368.3(c)(1), but there is no similar exception for sex offender probationers.