by School of Government faculty member Jamie Markham
There are two categories of sex offenders subject to satellite-based monitoring: those subject to lifetime monitoring, and those subject to monitoring for a period of time specified by the court. For an offender to fall within the latter category (called “conditional” monitoring by DCC), the court must find that the offense involves the “physical, mental, or sexual abuse of a minor,” and must determine, based on a DOC risk assessment, that the offender requires the “highest possible level of supervision and monitoring.” G.S. 14-208.40A(d) and -208.40B(c). DOC uses a risk assessment based on the Static-99, a ten-question actuarial instrument developed in Canada for use with adult male sex offenders. A risk level – high, moderate, or low – is generated based on the offender’s answers to the questions.
Previously, it was unclear exactly what the risk assessment score meant. Could an offender who rates something other than high risk still be deemed to require the highest possible level of supervision and monitoring? Or is a high risk assessment a sine qua non for conditional monitoring?
The court of appeals considered these questions in State v. Kilby. Mr. Kilby had committed multiple offenses that involved sexual abuse of a minor, but the DOC risk assessment rated him as a moderate risk. The court nonetheless found that the defendant required the highest possible level of supervision of monitoring and ordered him to SBM for 5-10 years. Mr. Kilby argued on appeal that a moderate risk assessment, without more, is insufficient to support the conclusion that he required the highest level of supervision and monitoring. The court of appeals agreed and reversed the trial court.
The court began by noting that “the highest possible level of supervision and monitoring,” though undefined, must just mean SBM, because SBM is the only form of supervision or monitoring provided for in the statute – there’s nothing any higher, so it’s the highest. Although it could not “discern any direct correlation” between the risk assessment results and the SBM determination, the court said it was error to order SBM for a defendant who posed a moderate risk when there were no additional findings indicating that he required the highest possible level of supervision and monitoring. No need even to remand the case for findings, the court said, because the State presented no evidence on which such findings could be based. To the contrary, all the evidence from the hearing indicated that Mr. Kilby was a pretty cooperative guy. (I wonder: could the court have properly rested its determination on a “factual finding” that Mr. Kilby was convicted of one count of second degree sexual offense and six counts of indecent liberties with a child? Your thoughts?)
Here’s what I take away from Kilby: If the court wants to order conditional SBM for an offender with a Static-99 risk level other than high, it apparently may do so. But first, it must make findings of fact in support of its determination that the person requires the highest possible level of supervision and monitoring. I’ve updated my sex offender registration and monitoring flow chart accordingly. Forms AOC-CR-615 and AOC-CR-616 don’t leave space for such findings, but a judge could use AOC-CR-618, a generic form for additional findings, to set out the facts supporting his or her determination.
Though the court didn’t have to reach the issue of whether it was proper to order SBM for an indeterminate period of “5-10 years,” I don’t mind weighing in. My advice has been that conditional monitoring should be ordered for a discrete period, not a range of time. I say that because requests for SBM termination are before the Post-Release Supervision and Parole Commission, and under G.S. 14-208.43(e), the Commission “has no authority to consider or terminate a monitoring requirement for an offender described in G.S. 14-208.40(a)(2),” i.e., offenders subject to conditional monitoring. So, a period 5-10 years is really a period of 10 years, and you might as well call it that up front.
Finally, I wanted to draw your attention to one additional sex offender-related item, an update on State v. Worley (the homeless sex offender case).
Thanks for your sex offender law posts, Jamie. They are very helpful.
Thanks for providing the SBM matrix and the updates. I am a NC PO and I have found the matrix as a very useful tool when trying to explain the process to offenders — and their attorneys 😉 I have also used this tool in the courtroom for reference.
The sate of NC put an sat base monitor on me in Nov of 2007 my offenses occured in Oct Nov of 2005 The residive law was effective on Aug 16 2006 for offenives that occured after this date. I got a lettle stating I was being constdered in Dec 2007 I got a letter in Feb 2008 had an hearing Mar of 2008 the moitor has now been on 3 yrs they violect my consitution rights . the monitor sation harresses offenders by calling an down loading messages from 11pm to 5am just to wake you up this is going to far
Darrell Fox: My next post will discuss the effective dates of the SBM law, based on a new court of appeals opinion issued yesterday. In short, the law does not require that your offense occurred after Aug. 16, 2006. It might also apply to you if, for example, you were sentenced to probation after that date or released from prison after that date.
In my case it was one victim all whit in a 2 week period i was trialed in 2 counties ofence date oct 3 2005 and nov 19 2005 arrested nov 20th 2005 convicted in aug 8th 2006 and in may 2007 there was on repegte offence my rist assesment put in at a very low risk of reoffending the sat base monitor was put on before i had a hearing what happened to due process, the moitor was not in my judgements it went into effect in aug 16 2005 for offences that occured after that date my attorney is working to get the monitor removed I am considering a muti million dollar suite aganist the state for violation of my rigths expost facto and failure for due process