Sex Offender Treatment as a Condition of Probation

Two of the topics I write about the most are probation and sex offenders. Today’s post is about both, answering a question that—somewhat to my surprise—comes up pretty frequently: Can a defendant who entered an Alford plea to a sex crime have his or her probation revoked for failing to accept responsibility for the crime during court-ordered treatment? (In North Carolina v. Alford, 400 U.S. 25 (1970), you’ll recall, the Supreme Court held that a defendant can knowingly and voluntarily enter a guilty plea even if he is unwilling or unable to admit his commission of the crime.)

Our court of appeals dealt with that question head on in State v. Alston, 139 N.C. App. 787 (2000). In Alston, the defendant entered an Alford plea to four counts of taking indecent liberties with a child, agreeing, under the language of his plea transcript, to be treated as being guilty without admitting guilt. One of the conditions of his probation was “active participation in and successful completion of a sexual offender treatment program.” The defendant also agreed in advance that a failure to participate in and complete the program was “immediate grounds for revocation.”

Mr. Alston enrolled in treatment but “steadfastly and consistently maintained his innocence.” That resulted in his removal from the program and, in turn, the issuance of a probation violation report. At the violation hearing, a psychologist from the treatment center testified that that “the minimum entrance criterion for the program was that the offender accept some level of guilt and responsibility for his abuse,” and that Alston was “not appropriate for inclusion” in the program. The trial court revoked his probation and activated his sentences.

Alston argued on appeal that his Alford plea “necessarily contemplated” that he would be allowed to maintain factual innocence, even during his court-ordered treatment, and that requiring him to admit guilt would “rob[] him of the benefit of the bargain he struck with the State.” Therefore, he argued, he had a “lawful excuse” for his failure to comply, and the court should not have revoked his probation.

The court of appeals disagreed, citing cases from other states to say that an Alford plea is, at bottom, a guilty plea, and is in no way “infused with any special promises” regarding punishment or future proceedings. Moreover, the court noted, Alston expressly acknowledged in his plea that he would be “treated as guilty” and that he would “fully participate in and successfully complete” treatment. Revocation affirmed.

The issue has come up in other states, and though there’s no consensus, most courts have reached the same conclusion our court did in Alston. See, e.g., Carroll v. Commonwealth, 54 Va. App. 730 (2009) (revocation upheld); People v. Birdsong, 958 P. 2d 1124 (Colo. 1998) (same); Warren v. Richland Co. Circuit Ct., 223 F.3d 454 (7th Cir. 2000) (same). But see People v. Walters, 627 N.Y.S. 2d 289 (N.Y. Co. Ct 1995) (reversing a probation revocation on the ground that “the defendant was not informed, at the time of entry of his Alford plea, that he would be required to admit in therapy his factual guilt to the underlying charge”). Connecticut even has a statute covering this situation, providing that Alford-plea offenders who become ineligible for sex offender treatment because of a refusal to accept responsibility for the charged acts “shall be deemed to be in violation of the conditions of . . . probation.” Conn. Gen. Stat. Ann. § 53a-32a.

In light of Alston, the parties involved in an Alford plea to a sex crime should have their eyes open to what might be required of the defendant during any court-ordered treatment. The Division of Community Corrections’ Sex Offender Control Program (SOCP) used to include a condition (set out on form DCC-40 and incorporated by reference into the judgment) that defined “participation” in a treatment program to include an admission of responsibility, but the Division recently discontinued the program. Still, any defendant convicted of a reportable crime must, under G.S. 15A-1343(b2)(2) for probationers or under G.S. 15A-1368.4(b1)(2) for post-release supervisees, “participate in such evaluation and treatment as is necessary to complete a prescribed course of psychiatric, psychological, or other rehabilitative treatment” as ordered by the court or Post-Release Supervision and Parole Commission. The language of the mandatory statutory condition is less explicit than the SOCP condition and a little different from the condition at issue in Alston, but it still requires the offender to “participate in” and “complete” treatment—and that almost always requires an admission of guilt.