Over two years ago I said I would someday try to sort North Carolina’s reportable sex crimes into the tiers set out in the federal Sex Offender Registration and Notification Act (SORNA). Today’s the day.
The chart is available here.
I’ve written about why SORNA offense tiering matters in many previous posts. Here is the short summary. A superior court judge cannot grant a sex offender’s petition to terminate registration if doing so would violate “the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” G.S. 14-208.12A(a1)(2).
The most important federal standard that a judge must consider when hearing a petition to terminate registration is the length of registration that would be required for the offense under SORNA. Federal law sorts crimes into three tiers—Tier I, Tier II, and Tier III—that require registration for 15 years (reducible to 10 in certain circumstances), 25 years, and life, respectively. Without knowing the federal tier into which a state crime would fall, the judge hearing the petition would not know if the offender has been registered long enough to comply with the federal minimum registration period for that type of offense, and thus would not know whether granting the petition would comply with federal standards, as required by G.S. 14-208.12A(a1)(2).
In the chart linked above, I attempted to place every reportable offense in North Carolina into its proper tier. Some determinations were straightforward. Sexual battery, for example, is surely a Tier I offense, because it is a misdemeanor and not punishable by imprisonment for more than one year. The definitions Tier II and Tier III require as a threshold matter that the offense be punishable by imprisonment for more than one year. 42 U.S.C. § 16911. Some determinations, however, were much more complicated. The proper tiering of indecent liberties with a child, for instance, has been an issue in several reported appellate cases in North Carolina—and the ultimate answer is still open to debate.
I applied the following rules in putting the chart together.
Elements only. The Supreme Court of North Carolina has generally instructed the trial courts to use a categorical, elements-based approach when determining an offense tier. State v. Moir, __ N.C. App. __, 794 S.E.2d 685 (2016). That instruction lines up with the federal regulations themselves, which say that when placing offenses into tiers, “jurisdictions generally may premise the determination on the elements of the offense, and are not required to look to underlying conduct that is not reflected in the offense of conviction.” 73 Fed. Reg. 38030, 38053.
Except as to victim age. Federal regulations say that tier classifications that depend on victim age must be obeyed even for crimes whose elements do not specify that the victim must be below the threshold age if the victim was in fact below it. Id. That is why some of the crimes get split between multiple tiers.
And except when necessary to identify a defendant’s precise crime under a divisible statute. I discussed this issue in this prior blog post. When a defendant has been convicted under a divisible statute—that is, one that sets out multiple distinct offenses—the supreme court has instructed the trial courts to use a “modified categorical approach” to determine the defendant’s offense tier. That approach allows the court to review a limited number of additional documents—the indictment, the plea agreement, and jury instructions, for example—to determine under which of the multiple offenses defined in a divisible statute the defendant was actually convicted. Moir, 794 S.E.2d. at 695. Remember, though, that the modified categorical approach does not open the door to freewheeling consideration of the particular facts of the defendant’s case. Rather, once the precise crime of conviction is identified, the review of additional documents and the additional facts they contain ends, and the conviction crime is itself evaluated in a categorical way to determine its tier. With that in mind, in my opinion, even if indecent liberties is a divisible offense, both versions of it are probably Tier I, as explained in the chart. Second-degree sexual exploitation of a minor is an example of a divisible statute where the two versions appear to fall into different tiers.
If you use the chart at all, please take it for what it is. I tried to create a useful reference on a complicated issue of law, but I sometimes fear that putting information in chart form gives it an air of certainty that isn’t really warranted. I discussed the chart with two experienced and thoughtful lawyers—prosecutor Kayley Taber and defense lawyer Keith Williams (thank you both)—to be sure that both agreed with my general approach. But ultimately, please bear in mind that the proper tiering of essentially every offense on the chart is an open question, ripe for argument in the trial division.