Revisions to North Carolina’s Satellite-Based Monitoring Law

After years of litigation concerning the constitutionality of satellite-based monitoring (SBM) of sex offenders, the General Assembly has amended the law pretty dramatically. Today’s post describes those changes.

The Supreme Court of the United States made clear in Grady v. North Carolina, 575 U.S. 306 (2015), that SBM was a search, but remanded the case for a determination of whether it was an unreasonable search under the Fourth Amendment. In the vast majority of state appellate cases considering the question—including in Grady’s case itself—our courts have concluded that SBM is an unreasonable search, at least once a person’s period of formal supervision (probation, parole, or post-release supervision) ends. State v. Grady, 372 N.C. 509 (2019) (Grady III) (SBM is facially unconstitutional for unsupervised recidivists). But see State v. Hilton, ___ N.C. ___, 2021 NCSC-115 (Sept. 24, 2021) (lifetime SBM is constitutional for a defendant convicted of an aggravated offense).

Session Law 2021-138 (Senate Bill 300) amends the SBM program in several ways in response to the dozens of appellate cases finding constitutional issues with the law.

Legislative findings of efficacy. As a preliminary matter, the General Assembly included a legislative finding in new G.S. 14-208.39 that SBM is an effective tool to deter criminal behavior among sex offenders. That finding was based in part on a 2015 study from California entitled “Does GPS Improve Recidivism among High Risk Sex Offenders? Outcomes for California’s GPS Pilot for High Risk Sex Offender Parolees.” Including this finding responds to a common thread in many of the cases considering the constitutionality of SBM: that there is no evidence that North Carolina’s SBM program is actually effective in reducing crime. The hope, I think, was that this legislative finding would plug into the balancing test for Fourth Amendment reasonableness (weighing the intrusion into a person’s legitimate expectation of privacy against the extent to which the program sufficiently promotes legitimate governmental interests) and tip things toward reasonable.

I might have had doubts about how much weight that legislative finding would have been given in the appellate courts, which have previous said that legislative findings “have no magical quality to make valid that which is invalid.” Hest Techs. v. State ex rel. Perdue, 366 N.C. 289, 294 (2012). However, in recently decided State v. Hilton, 2021-NCSC-115, the Supreme Court of North Carolina concluded that the same study cited by the General Assembly and another one entitled Sex Offenders Monitored by GPS Found to Commit Fewer Crimes “demonstrate that SBM is efficacious in reducing recidivism.” The court even went on to say in that case that based on its recognition of SBM’s efficacy, there would no longer be a need for the State to prove that issue on an individualized basis. Id. ¶ 28. So, as a matter of both legislation and case law, the State’s task in proving SBM’s efficacy has seemingly become a lot easier.

The law makes several other changes intended to help SBM pass constitutional muster.

First, a change to SBM eligibility criteria: Recidivist replaced by “Reoffender.”

You may recall that in State v. Grady, the Supreme Court of North Carolina concluded that SBM was unconstitutional for any unsupervised defendant ordered to enroll solely because he or she is a recidivist. The new law replaces references to “recidivist” in the SBM law with a new term: reoffender. That may at first seem like a bit of statutory sleight of hand, but while the definition of recidivist includes anyone with a prior reportable conviction (any prior reportable conviction), reoffender includes only persons with two or more convictions for felony reportable convictions. G.S. 14-208.6(3e). So, for example, a person with multiple misdemeanor sexual battery convictions would no longer meet the repeat offender criteria. This change responds to the Supreme Court’s observation in Grady that the prior definition of recidivist “swept . . . [a] wide range of different offenses” into the category. Grady III, 372 N.C. at 544.

The definition makes clear that only one offense from a single session of court is counted when determining whether a person is a reoffender, meaning the “two or more” felony convictions must come from different sessions. The law’s effective date says that felony convictions obtained before, on, or after December 1, 2021 are included within the reoffender definition, so be aware that defendants will not be starting with a clean slate once the new law kicks in. S.L. 2021-138, sec. 18.(p).

Note that the “reoffender” definition applies only for SBM purposes. The recidivist definition still applies to sex offender registration as before, triggering lifetime registration.

Second, a change to the determination process: Risk assessment and individualized determination for all categories of offenders.

Under existing law, SBM was mandatory for recidivists, aggravated offenders, sexually violent predators, and defendants convicted of statutory rape of a child by an adult or statutory sexual offense with a child by an adult. Only for offenders convicted of an offense that involved the physical, mental, or sexual abuse of a minor (sometimes referred to as “conditional” offenders by Community Corrections) did the court order a risk assessment—generally the Static-99—and make an individualized determination of whether the defendant had to enroll in SBM. The Supreme Court found that “lack of judicial discretion” constitutionally problematic, and “contrary to the general understanding that judicial oversight of searches and seizures . . . is an important check on police power.” Grady III, 372 N.C. at 535.

The new law responds to that concern by expanding the risk assessment and individualized determination process to all categories of potential enrollees. Under amended G.S. 14-208.40A (for determinations made at sentencing) and -208.40B (the analogous section for bring-back hearings), when the court finds that a defendant has been classified as a sexually violent predator, reoffender, or aggravated offender, or was convicted of statutory rape or sexual offense of a child by an adult, it shall order the Division of Adult Correction and Juvenile Justice to complete a risk assessment, and then, based on that (and, probably, other findings, as discussed here), determine whether the offender requires SBM. To be clear, SBM is no longer automatic for offenders in these categories.

For offenders who committed an offense that involved the physical, mental, or sexual abuse of a minor, the process is the same under the new law as it was under the old law: the court orders the risk assessment, and the judge determines based on it whether to order SBM for a period of time in its discretion. As we’ll see in a moment, though, that term of years now has an upper limit.

The statute gives DACJJ up to 60 days to complete the risk assessment. The law’s previous grant of “a minimum of 30 days” to DACJJ to complete the assessment is deleted, in recognition of the fact that probation officers are usually able to run the Static-99 very quickly, often even before the determination hearing begins.

Third, a change to the permissible duration of SBM: Former lifetime categories are changed to 10 years, and the abuse-of-a-minor category (“conditional” offenders) is capped at 10 years.

In State v. Thompson, 273 N.C. App. 686 (2020), the Court of Appeals concluded that a 10-year SBM period imposed on a defendant convicted of multiple sexual offenses against children was “not ‘significantly burdensome and lengthy,’ especially given that defendant will already be subject to post-release supervision by the State for half of that time period.” When it was decided, Thompson was one of the very few cases in which an SBM order withstood a constitutional challenge, and so its outer boundary of 10 years got incorporated into the revised law that will take effect in December. The exact length of the permissible SBM period under the new law depends on the offender’s enrollment category as follows.

For reoffenders, aggravated offenders, sexually violent predators, and defendants convicted of statutory rape of a child by an adult or statutory sexual offense with a child by an adult, if the court finds that the defendant requires the highest possible level of supervision and monitoring and orders SBM, it shall be for a period of 10 years—no more, no less. G.S. 14-208.40A(c1). In other words, the former “lifetime” SBM offenders are now “10-year” offenders (assuming they are ordered to SBM at all, based on their risk assessment). There is no longer any possibility of lifetime SBM for determinations made on or after December 1, 2021. (There are still references to lifetime SBM in G.S. 14-27.23(b) and -27.28(b), the statutory sections for statutory rape of a child by an adult and statutory sexual offense with a child by an adult, respectively, but those are probably ripe for a conforming technical correction.)

For offenders who committed an offense that involved the physical, mental, or sexual abuse of a minor (like indecent liberties, for example), the new law says that SBM is for a period specified by the court, not to exceed 10 years. Previously, any period of time would have been permissible, although the court was never allowed to order lifetime SBM for offenders in this category. State v. Cowan, 207 N.C. App. 192, 203 n. 5 (2010) (“[T]he trial court erred by ordering that Defendant enroll in lifetime SBM as compared to subjecting him to SBM for a term of years.”).

As noted above, the law makes no change to the duration of the sex offender registration period.

Fourth, a change to the process for removal from SBM: Judicial review replaces Post-Release Supervision and Parole Commission review.

Under revised G.S. 14-208.43, reoffenders, aggravated offenders, sexually violent predators, and defendants convicted of statutory rape of a child by an adult or statutory sexual offense with a child by an adult ordered to enroll in SBM for 10 years may, 5 years after the date of initial enrollment, petition the superior court in the county of conviction for termination or modification of their SBM enrollment period. Previously, offenders in those categories would have been ordered to lifetime SBM, and they would have been allowed to petition the Post-Relief Supervision and Parole Commission for removal. The Supreme Court viewed that process skeptically in Grady, prompting the legislative change. Grady III, 372 N.C. at 534–35 (“The termination requests are directed not to a judicial officer but the Post-Release Supervision and Parole Commission, which is furnished no meaningful criteria for evaluating these requests . . . . [F]rom the years 2010 through 2015, the Commission received sixteen requests for termination by individuals subjected to lifetime SBM and denied all of them.”).

The district attorney must receive notice of the petition at least three weeks before any hearing on the matter. At the hearing, the defendant and the State may present evidence, and the victim may appear and be heard, either through an oral statement, a written statement, or submission of an audio or video statement. The judge must ask if the victim is present and wishes to be heard. G.S. 14-208.43(c).

The court may grant the offender’s petition only after finding (1) that the offender has been enrolled in SBM for at least 5 years, and (2) that he or she no longer requires the highest possible level of supervision and monitoring for 10 years. If the court can make those findings, it can either terminate the offender’s SBM immediately, or order the person to remain enrolled for a specified time not to exceed a total of 10 years. If the court does not grant any relief, the person can petition again two years from the date of the denial. G.S. 14-208.43(f).

There is no authority for the court to consider early termination of SBM for an abuse-of-a-minor offender ordered to SBM for a term of years. G.S. 14-208.43(f).

Looking at revised G.S. 14-208.43 in conjunction with the new law’s effective date (SBM determinations on or after December 1, 2021), it’s reasonably clear that this subsection was meant to be forward-looking, applicable to offenders newly enrolled in 10-year monitoring after December 1 of this year.

Relief for offenders already subject to SBM. For offenders already subject to lifetime SBM, the law adds new G.S. 14-208.46 to give them a pathway to have lifetime SBM converted to 10-year SBM. That new section says that offenders enrolled in SBM for life may, five years after their initial enrollment, petition the superior court in the county of conviction for termination or modification of SBM. If the person has not yet been enrolled for 10 years, the court shall order the person to remain enrolled for a total of 10 years. G.S. 14-208.46(d). If the person has already been enrolled for more than 10 years, the court shall order SBM terminated immediately. G.S. 14-208.46(e). The statute calls for a hearing procedure similar to the one described above for 10-year offenders, but unlike those hearings, these hearings for lifetime offenders do not involve judicial discretion—the offender’s lifetime SBM is either mandatorily converted to 10 years, or mandatorily terminated if 10 years have already gone by. There really isn’t any need for substantive evidence aside from the relevant dates of enrollment.

The existing SBM offenders who get left out in the cold by this section are term-of-years, abuse-of-a-minor enrollees. Prior law would have allowed a judge to order SBM for a period of time in the court’s discretion based on the results of the risk assessment, and that period of time could have exceeded 10 years. (It often doesn’t—a common practice is to order SBM for 5 years, matching the length of the defendant’s period of PRS—but it could and sometimes did.) Those offenders likewise cannot obtain relief under existing petition laws because the Parole Commission never had authority to terminate monitoring for abuse-of-a-minor offenders. These offenders may still have valid constitutional claims in light of Grady, but they are not covered under this new statute. Abuse-of-a-minor offenders who were ordered to enroll in SBM for life do appear to fall within the literal language of G.S. 14-208.46(a), but remember, under State v. Cowan (mentioned above), offenders in this category shouldn’t have been ordered to lifetime SBM in the first place.

Conforming changes to various conditions of probation. The new law makes conforming changes to various conditions of probation, parole, and post-release supervision, as well as the statutes pertaining to probation officers’ delegated authority, in recognition of the fact that all categories of SBM now require a risk assessment and a judicial finding that the defendant requires the highest possible level of supervision and monitoring. G.S. 15A-1344(e2), which had required SBM as a condition of probation for certain offenders whose probation was extended, is repealed.

Reconsideration of Grady-affected individuals. An uncodified section of S.L. 2021-138 gives the State some guidance on what to do with individuals who fall in the same category as the defendant in State v. Grady, that is, persons enrolled in lifetime SBM based solely on their status as a recidivist, who are no longer supervised through probation, parole, or post-release supervision. The provision instructs DACJJ to provide each elected district attorney a list of all such enrollees in their district for a review of whether those enrollees might be subject to SBM on some other basis (such as having committed an offense involving the physical, mental, or sexual abuse of a minor, or, presumably, by meeting the new definition of “reoffender”). If the DA makes a preliminary determination that some other basis might apply, he or she may petition the court for a hearing on the matter, to be resolved under G.S. 14-208.40A as amended by the new law. Each DA may instead ask the Attorney General to handle these matters on his or her behalf. S.L. 2021-138, sec. 18.(o). Note that this provision does not expressly require anyone already removed from SBM based on Grady (or any other reason) to be brought back before the court for a hearing.

Summary. The diagram below summarize the new rules for SBM for determinations made on or after December 1, 2021. A revised form AOC-CR-615, incorporating the newly required findings and possible orders, is forthcoming.