State v. Bare and Satellite-Based Monitoring

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.