Update: As discussed on Professor Doug Berman’s Sentencing Blog, the Supreme Judicial Court of Massachusetts recently determined that the GPS monitoring law in that state is punitive in effect, and therefore may not be applied to defendants initially placed on probation for acts committed before the law’s enactment. The court’s opinion in Commonwealth v. Cory is available here. It’s interesting that the Massachusetts regime was deemed punitive even though offenders there are monitored only for the duration of their probation, whereas North Carolina’s regime, in which monitoring can continue well beyond a defendant’s formal supervision period, was deemed nonpunitive in Bare and Anderson.
Original Post: In the past month or so our appellate courts have issued several opinions related to sex offender registration and monitoring. I’m not sure we’ve reached the point where we have more answers than questions, but I thought it might be a good time to recap what the courts have said thus far. I’ll start today with a recap of two recent satellite-based monitoring cases, and then follow up with Part II discussing two cases regarding changes of address for sex offender registration purposes.
I wrote earlier about State v. Bare, the case decided June 16, 2009, in which the Court of Appeals rejected the defendant’s argument that North Carolina’s satellite-based monitoring (SBM) regime, as applied to a defendant whose crime occurred prior to the law’s enactment, violated the ex post facto clauses of the North Carolina and United States constitutions. The defendant claimed that the SBM law “change[d] the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed,” and was thus unconstitutional. The court disagreed, concluding that the legislature intended SBM to be part of a “civil and regulatory regime,” and not part of the criminal punishment imposed on the defendant.
The court went on to evaluate whether the SBM law is so punitive either in purpose or effect as to negate the State’s intention to deem it civil, applying an analytical framework set out in Kansas v. Hendricks, 521 U.S. 346 (1997), and Smith v. Doe, 538 U.S. 84 (2003). Those cases established a multi-factor test for evaluating a regime’s purpose and effect, requiring consideration of whether the regulatory scheme (1) has been regarded in our history and traditions as a punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; and (5) is excessive with respect to this purpose. Those cases place the burden on the party challenging the statute to provide the “clearest proof” of a law’s punitive nature to override the civil label used by the legislature. The Court of Appeals concluded that Mr. Bare failed to meet that burden, noting at several points that the defendant failed to present “affidavits,” “testimony” or “other evidence” that the SBM device amounts to a shame sanction, or that wearing the device hindered his ability to obtain employment. He did not demonstrate, for example, “that the device is recognizable as a monitor assigned to sex offenders as opposed to an ordinary electronic device such as a cell phone, personal data assistant, or walkie-talkie.” [“Hey, check out my new iPhone!”] The phrase “based on the record before us” appears three times in Bare, seemingly leaving open the possibility that other offenders subject to SBM might be able to bring forth sufficient affidavits, testimony, or other evidence to demonstrate the regime’s punitive purpose or effect.
Nevertheless in State v. Anderson, an SBM case decided this week, the Court of Appeals cited Bare without qualification to say “[t]his Court has already held that the provisions of the satellite-based monitoring program are civil in nature, not punitive.” Applying that principal (after noting that the issue was not properly preserved for appeal), the court rejected Mr. Anderson’s argument that SBM that should not apply to him when he was not advised prior to his guilty plea that he would be subject to the regime. The court also dismissed the defendant’s argument that the SBM statute is void for vagueness and violates due process by failing to define the standard of proof the court should apply in determining whether a defendant is a recidivist. “Having admitted at the hearing that he was a recidivist as defined under the statute,” the court said, “Defendant may not now argue before this Court that the provisions for determining recidivism are unconstitutionally vague.” Finally, the court rejected the defendant’s argument that SBM amounted to further punishment “in violation of his right to be free from double jeopardy.” Again citing to Bare, the court said that SBM is “civil in nature, not punitive” and thus cannot constitute a double jeopardy violation.
If offenders already faced a high burden (the “clearest proof”) under Hendricks and Doe to show that a purportedly civil regime is punitive, the SBM hill is a little steeper in North Carolina after Bare and Anderson.