State v. Bare and Satellite-Based Monitoring

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I’m in Asheville for the next few days, but I wanted to write briefly about an important case decided by the Court of Appeals last week. In State v. Bare, the court held that satellite-based monitoring (SBM) of sex offenders is not punishment, and therefore does not implicate the Ex Post Facto Clause.

The defendant was convicted of two reportable sex crimes, indecent liberties with a minor in 1998 and sexual activity by a custodian of a minor in 2002. He was released from prison on April 20, 2007, bringing him within the effective date language of the law that created North Carolina’s SBM regime. That law, passed in 2006, was made effective for (among others) offenders released from prison to post-release supervision or parole on or after August 16, 2006. S.L. 2006-247. As a recidivist, the defendant is subject to SBM for the rest of his life. He argued that SBM violated the ex post facto clauses of the North Carolina and United States constitutions because the SBM law did not exist at the time he committed his crimes and imposition of SBM increases his punishment. The court disagreed.

The court walked through the two-step analysis set out by the U.S. Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), first considering whether the legislature intended the regime to impose punishment, and, if not, whether the regime was nonetheless so punitive in purpose or effect to negate the legislature’s intent to deem it civil. Suffice it to say the court concluded that the legislature intended SBM to be a civil regulatory scheme to protect the public, and the regime was not so punitive in purpose or effect to negate that intent. I’ll write more about the court’s analysis later, but for now I’ll note that much of the court’s decision appeared to turn on a lack of evidence, affidavits, or other information in the appellate record to support the defendant’s claims.

The Court of Appeals also rejected the defendant’s argument that the trial court violated G.S. 15A-1022(a) by failing to inform him that SBM would be a direct consequence of his no contest plea. The court noted first that because SBM is not punishment, G.S. 15A-1022(a) is not implicated. Moreover, because SBM is determined separately at a determination hearing (at sentencing, or at a bring-back hearing), it is not an automatic, direct result of the defendant’s plea.

More to follow — I welcome your thoughts in the interim.

7 comments on “State v. Bare and Satellite-Based Monitoring

  1. In the article State V. Bare and Satellite-Based monitoring, it referenced that law, passed in 2006, was made effective for offenders released from prison to post-release supervision or parole on or after August 16, 2006. S.L. 2006-247. On September 26, 2008, Union County Superior Court Judge W. David Lee in the petition of the State of North Carolina to require William Brian Cannupp to enroll in a satellite-base monitoring program noted that the General Assembly amended N.C. Gen. Stat. 14-208.40 during the 2007 legislative session: the effective date of these revisions is December 1, 2007. See N.C. Sess. Laws 2007-484, s. 42(b) (portion of technical corrections bill containing revised effective date). Questions: Was Judge Lee correct in his ruling reference the effective date of December 1, 2007 or the Court of Appeals (August 16, 2006)?

  2. Tara Richardson: That’s a good question. G.S. 14-208.40 was amended in 2007 by S.L. 2007-213 to add determination hearings for satellite-based monitoring. And it is correct that the effective date of S.L. 2007-213 was amended later in the same session by S.L. 2007-484, § 42(b). The revised effective date for the 2007 amendments made the prospective sentencing procedure under 14-208.40A applicable to sentences entered on or after Dec. 1, 2007. For the bring-back procedure under 14-208.40B, the revised effective date simply said the law was “effective December 1, 2007.” This led some to argue that, in the absence of a clear legislative intent for the law to apply retroactively, it should apply prospectively. Others interpreted the 2007 legislation as a procedural overlay on the substance of the 2006 legislation (S.L. 2006-247), that clearly was meant to apply retroactively to covered inmates released after August 16, 2006.

    The issue was up in the air when Judge Lee considered the Cannupp case in September 2008, but I read State v. Wooten (decided December 16, 2008) to have decided the debate in favor of the August 16, 2006 date. (I wrote a little about this when State v. Wooten was decided, http://sogweb.sog.unc.edu/blogs/ncclaw/?p=12.) In that case, Mr. Wooten’s second indecent liberties conviction was based on acts that occurred on October 31, 2001 – well before the December 1, 2007 date. Nevertheless, the court of appeals said “The legislation became effective 16 August 2006. Defendant completed his sentence for a Class F felony and was eligible for release, but not eligible for post-release supervision after the effective date of the legislation. Therefore, defendant is a person who fits the criteria the legislature intended for participation in the SBM program.”

    So, unless and until a higher court says otherwise, I’ve changed my materials (e.g., http://sogweb.sog.unc.edu/blogs/ncclaw/wp-content/uploads/2009/04/sex-offender-flow-chart-apr-09.pdf) to reflect the 2006 date.

  3. Anyone else notice the crazy sentence in this case. 10+ years for not reporting a change of address within 10 days — but reporting it in 36 days. And this because the Defendant was homeless because police informed public housing he was there and had him evicted.

    What a waste of money!

  4. Mr. Hungry: Are you referencing State v. Worley, http://www.aoc.state.nc.us/www/public/coa/opinions/2009/081532-1.htm, decided the same day as State v. Bare?

  5. Oh yeah, it was Worley. Guess that makes a lot more sense than the SBM issue (since Worley is still in jail). Ha!

    Well, the Worley case had an offensive outcome. Bare just had a crazy outcome–as though being monitored for the rest of your life wasn’t punishment. The money we waste on “sex offenders” !!!

  6. Smb is punishment, if you think about it; it is like prbation. They just watch you from there offfice on computer. so it is puishment. and breaking lots of civil rights to privacy and humilation.

  7. […] invalid by the later imposition of SBM, for the reasons set out in State v. Bare, discussed here. The supreme court affirmed all of the above. (As an aside, there’s a collateral consequence […]

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