Satellite-Based Monitoring Is not Punishment

Tag Archives: ex post facto

Satellite-Based Monitoring Is not Punishment

Posted on October 19, 2010 by Jamie Markham

I was out of the office when the Supreme Court of North Carolina released its latest batch of opinions, so I’m just now getting around to writing about big news related to satellite-based monitoring (SBM) of sex offenders. In State v. Bowditch, the state high court concluded that SBM is not a criminal punishment, and thus does not implicate constitutional prohibitions against ex post facto laws.

Bowditch was a consolidated case involving three defendants whose crimes occurred before the SBM regime was enacted into law in 2006. At their G.S. 14-208.40B SBM determination hearing, the defendants developed an extensive factual record on various aspects of the monitoring regime, including the size and recharging period of the tracking devices enrollees must wear, the way the devices transmit information and alerts to DOC, and the various ways in which the program impacts an enrollee’s daily life. Based on that record, the defendants successfully persuaded the trial court that SBM is punitive—and thus an unconstitutional ex post facto punishment as applied to them. After the State appealed, the supreme court granted the defendants’ petition for discretionary review, bypassing the court of appeals.

The supreme court reversed. Using the “intent-effects” framework the United States Supreme Court has used to analyze other ex post facto challenges, see Smith v. Doe, 538 U.S. 84 (2003) (holding Alaska’s sex offender registration law to be nonpunitive), the court determined that the General Assembly did not intend for SBM to punish offenders, and that the regime was no so punitive in effect as to negate the legislature’s intent. Justice Brady wrote for a four-justice majority.

Regarding the legislature’s intent, the court concluded that the SBM law’s placement in Chapter 14 of the General Statues (the criminal law chapter) and its choice of DOC (the agency primarily responsible for criminal punishment) to oversee the program were not dispositive indicators of the legislative objective behind SBM. To the contrary, the court noted that the SBM law was placed in the same statutory article as the sex offender registration law—a regime already deemed civil by North Carolina’s appellate courts, State v. Sakobie, 165 N.C. App. 447 (2004)—and that it made sense from an “organizational and fiscal” standpoint for DOC to run the program.

The court proceeded to analyze whether, despite the legislature’s civil intent, the law is punitive in effect. Applying the multi-factor analysis endorsed by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the court decided it is not. While acknowledging that the SBM device certainly has an impact on enrollees’ lives, the court concluded that it was less harsh than restraints such as occupational debarment, license revocation, and—perhaps most convincingly—involuntary commitment, each of which has been deemed nonpunitive by the United States Supreme Court. See De Veau v. Braisted, 363 U.S. 144 (1960) (forbidding work as a union official); Hawker v. New York, 170 U.S. 189 (1898) (revoking a medical license); and Kansas v. Hendricks, 521 U.S. 346 (1997) (civil commitment of sex offenders). Enrollees’ limited ability to swim, scuba dive, and travel by air are not trivial, the court said, but “no aspect of the SBM program remotely approaches the same level of restraint as the detainment inherent in the civil commitment scheme upheld in Hendricks.”

The majority likewise rejected the defendants’ argument that SBM is no different than electronic house arrest (an intermediate punishment under Structured Sentencing), noting that the monitoring component of the SBM law is “more passive” than EHA, and that DOC makes some effort to treat unsupervised SBM enrollees (that is, those whose period of probation, parole, or post-release supervision has ended) differently than those still under formal supervision. The requirement of 90-day visits by DOC officials to maintain the system did not, the court said, amount to an unnecessary burden on enrollees’ Fourth Amendment rights because they, as convicted felons, have a diminished expectation of privacy. (I was unable through my own research to find many cases in support of the idea that once convicted of a felony, a person’s Fourth Amendment rights are forever diminished. Two of the cases the court cites for this point involve felons who are still in prison or on probation, and thus still in the process of being punished.) The court also disagreed with the notion that the SBM equipment amounts to a scarlet-letter shaming sanction, saying a “casual observer could perceive the [equipment] to be any number of personal electronic devices.”

Finally, the court concluded that the SBM law’s nonpunitive purpose of “protecting the public” was not overwhelmed by the fact that the regime also promotes retribution and deterrence, two of the traditional aims of criminal punishment. This seems to me to be a very fine line; deterring crime and protecting the public are arguably two sides of the same coin in this context. In any event, the program as a whole was not deemed excessive in light of sex offenders’ “widely documented” high rate of recidivism.

Justice Hudson authored a dissent, joined by the other two women on the court. She agreed that the legislature did not intend for SBM to be punitive, but concluded that the regime’s “substantial interferences into the daily lives of those monitored are too punitive in effect to be imposed retroactively.” She questioned the law’s baseline effectiveness and the underlying premise that sex offender recidivism rates are especially high, noting in a footnote that DOC’s own sex offender specialist calls this notion a “myth.” In response to the majority’s reliance on Hendricks, Justice Hudson noted that eligibility for civil commitment under the law at issue in that case was predicated on findings of mental abnormality separate from the underlying crime, whereas SBM is triggered solely on the basis of a prior conviction.

The dissent agreed with the defendant’s argument that SBM shares more in common with electronic house arrest than with registration. By reference to a description of EHA in a 1997 School of Government publication (Law of Sentencing, Probation, and Parole in North Carolina by Stevens Clarke), Justice Hudson pointed out that SBM and EHA are nearly functional equivalents. If anything, that argument could be made more forcefully: DOC no longer uses the telephone-based EHA system described in Steve’s book, but rather uses the very same GPS technology for EHA and SBM. (Somebody really ought to update that book!) And unlike information published on the sex offender registry, information gathered through the SBM is not made available to the general public in a way that allows the public to avoid high-risk offenders, calling into question the law’s purportedly primary focus on public safety.

So, after nearly a dozen court of appeals cases saying so, we now know that SBM is not punishment. The court also decided a number of other cases alongside Bowditch, affirming the court of appeals each time by the same 4–3 split. I’ll write another post summing up the various issues resolved by those cases.

Category: Sentencing, Uncategorized | Tags: bowditch, ex post facto, satellite, satellite based monitoring

Second Amendment Math: Britt + Heller = Whitaker?

Posted on December 11, 2009 by Jeff Welty

A divided court of appeals decided another significant gun case this week. But before I talk about the opinion in State v. Whitaker, I’ll briefly summarize the legal backdrop for the case.

In June 2008, the United States Supreme Court decided District of Columbia v. Heller, holding that the Second Amendment protects an individual right to possess a firearm and to use it for traditionally lawful purposes. It invalidated a District of Columbia law that effectively banned the private ownership of handguns.

In August 2009, the North Carolina Supreme Court decided Britt v. North Carolina, holding that as it applied to plaintiff Barney Britt, G.S. 14-415.1, our felon-in-possession statute, violated Article I, section 30 of the North Carolina Constitution. The relevant parts of that article are textually identical to the Second Amendment.

The upshot of these two cases has been considerable uncertainty about the scope of the individual right to possess a firearm. This earlier post discusses some of the confusion and notes that the United States Supreme Court is currently considering a case, McDonald v. Chicago, that may answer some of the questions in this area, including whether the Second Amendment is “incorporated” in the Fourteenth Amendment’s Due Process Clause and so applies to the states.

This week, the court of appeals chimed in with Whitaker. Defendant Douglas Whitaker was a convicted felon who kept several — okay, eleven — long guns at his home, even after being warned several times that it was illegal for him to possess them. He was charged with, and convicted of, being a felon in possession. He appealed, arguing (1) that G.S. 14-415.1 is facially unconstitutional, (2) that it is unconstitutional as applied to him, and (3) that the 2004 amendment to G.S. 14-415.1 (which removed felons’ right to possess certain firearms in limited circumstances) is ex post facto punishment as to felons convicted prior to the amendment’s effective date.

The court of appeals first rejected the facial challenge. Because the defendant argued that the right to bear arms is a fundamental right and limitations on that right should be subject to strict scrutiny, the court began by addressing the standard of review. The standard probably didn’t matter very much in this case, which isn’t a close call, but it might matter a great deal in a closer case. The majority began by noting that regulations upon the right to bear arms have been subject to rational basis review in North Carolina “since at least 1921.” And it argued that the Britt court had effectively applied that standard when it stated that gun laws “must be at least reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.” Thus, it concluded that nothing in Britt required a higher standard. The court likewise found that Heller did not require a higher standard, though the reasons that the court gives for that conclusion aren’t fully convincing. (For example, the court notes that it is not bound by decisions of the United States Supreme Court when considering provisions of the state constitution. That’s true, but (1) the defendant asserted a federal constitutional claim as well, and (2) the court earlier indicated that the state constitution provides a “broader right” to bear arms than the Second Amendment does.)

Anyhow, the bottom line is that the court decided to apply rational basis scrutiny. Using that standard, the court easily rejected the defendant’s facial challenge. For authority, the court relied on its own opinion in the Britt case; since the state supreme court ruled only on Britt’s as-applied challenge, it left undisturbed the court of appeals’ holding that the statute was not facially unconstitutional.

The court then turned to the defendant’s as-applied challenge to the statute. It read Britt to turn on five factors:

The type of felony of which Britt was convicted (PWISD methaqualone) and specifically, its non-violent nature.
The remoteness in time of the conviction (1979).
Britt’s law-abiding conduct since the conviction.
His responsible and lawful possession of firearms during the time when felons had a limited right to possess guns.
His “assiduous” compliance with the 2004 amendment to G.S. 14-415.1 by getting rid of his guns and asserting his legal challenge through a civil suit.

Noting that Whitaker had three prior felony convictions, including one for taking indecent liberties with a minor, and another as recently as 2005; that he also had several misdemeanor convictions; and that he possessed firearms in violation of the terms of G.S. 14-415.1, even after being warned about the statute, the court rejected his as-applied challenge and determined that G.S. 14-415.1 was constitutional as to him. The important aspect of this holding is not the result — these aren’t sympathetic facts and the outcome was not in doubt — but the process the court used to reach it. The opinion sets out a framework and a set of factors that can be used in analyzing any defendant’s claim under Britt.

Finally, the court rejected the defendant’s ex post facto argument. A very similar argument about a prior amendment to G.S. 14-415.1 was rejected in State v. Johnson, 169 N.C. App. 301 (2005), and the court saw no reason to depart from that precedent.

Judge Elmore, who has also authored notable dissents in several recent satellite-based monitoring cases, concurred in part and dissented in part. He agreed that the defendant’s facial and as-applied challenges should be rejected, though he argued that the state supreme court’s Britt opinion applied a standard of review “more stringent than rational basis, although certainly less stringent than intermediate or strict scrutiny.” He disagreed with the majority’s resolution of the ex post facto argument, concluding instead that G.S. 14-415.1’s total prohibition on gun ownership is sufficiently punitive that ex post facto principles preclude its application to individuals whose felony offenses predated the 2004 amendment to the statute.

The existence of a dissent effectively guarantees further review by the state supreme court. That opinion is likely to come out after McDonald has been decided, and should provide substantial guidance to lower courts. In the meantime, the court of appeals has taken a giant step forward by providing a workable framework for analyzing Britt claims.

Category: Crimes and Elements, Uncategorized | Tags: Britt, ex post facto, Heller, rational basis, second amendment, whitaker

Another Batch of Satellite-Based Monitoring Cases

Posted on November 17, 2009 by Jamie Markham

The last round of opinions from the court of appeals included three related to satellite-based monitoring (SBM) of sex offenders. None of them broke any major new ground, but two more dissents show that nothing is fully settled in this rapidly evolving area.

In State v. Gardner, the court found the defendant, who was recently released from prison to post-release supervision, to be a recidivist and ordered him to enroll in SBM for life. At the determination hearing, the defendant argued that SBM was an invalid ex post facto punishment and violated double jeopardy principles. The trial court acknowledged in its order that Mr. Gardner might have a point, but said the issue wouldn’t be ripe for review until he finished his term of post-release supervision. The court’s idea, I think, was that because post-release supervisees are required to submit to SBM as a condition of supervision under G.S. 15A-1368.4(b1)(6), SBM for life-the regime that defendants have been arguing adds to their punishment-doesn’t actually begin until formal supervision ends. It’s not a bad argument, although as it turns out it may yet violate the Ex Post Facto Clause to add a mandatory condition of supervision to cases based on crimes that occurred after passage of the legislation adding the condition-that’s what happened in Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009), as discussed in my comment to this post. Regardless, the appellate court’s problem with the trial court order in Gardner was with its clarity, not its constitutionality. In one place the order said SBM was for life, in another place it said SBM was just a condition of post-release supervision. The court of appeals remanded the case for the trial court to clear up the ambiguity.

Up next is State v. Hagerman, in which a defendant was ordered to enroll in SBM for life after the trial court determined his indecent liberties convictions were aggravated offenses. The defendant argued that the court’s determination violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), by increasing his punishment based on facts not presented in an indictment, admitted to, or found by a jury beyond a reasonable doubt. Because SBM is not punishment, the court of appeals held, Mr. Hagerman’s sentence was not increased, and Apprendi wasn’t implicated. Judge Elmore dissented, noting his continued belief (expressed in other dissents, including one I’ll discuss in a moment) that SBM is punishment, and is therefore subject to Apprendi‘s jury-proof requirements. Hagerman does not address the question of whether aggravated offense determinations may rest only on the elements of the conviction offense, or whether the court may also look to the facts behind the conviction. (I discussed this issue, which is a question of statutory interpretation, in an earlier post.) The trial court in Mr. Hagerman’s case must have looked to the facts (indecent liberties does not include penetration as an element), but the defendant did not raise the statutory interpretation argument on appeal, and the court of appeals therefore did not discuss it. The issue will be more squarely before the court soon.

Finally comes State v. Vogt, a case involving a recidivist offender ordered to enroll in SBM for life, in which the court of appeals once again rejected a defendant’s argument that monitoring is ex post facto punishment. Mr. Vogt also argued that the trial court’s SBM order rendered his guilty plea invalid because “he could not have been advised that he would be subjected to lifetime satellite-based monitoring . . . since such monitoring did not exist at the time that he entered his guilty plea.” A problem with that argument, the court of appeals noted, is that the defendant’s plea to his most recent sex crime was entered in June of 2008, almost two years after the SBM statute became effective. Judge Elmore dissented, again taking judicial notice of the Division of Community Correction’s interim policy on sex offender management to conclude that SBM amounts to ex post facto punishment. The majority did not question the dissent’s authority to take judicial notice of the DCC policy, but it did express concern about introducing “a large volume of additional information which has not been subjected to adversarial testing in the trial courts.” Such testing would, I think, sort out which provisions in the interim policy are applicable to sex offenders on probation or post-release supervision (warrantless searches, curfews, and notification of church officials), and which actually apply to offenders enrolled in SBM (a distinction I wrote about here). In a footnote, the majority practically invited a monitored offender to “challenge the validity of specific provisions of the interim guidelines . . . on the grounds that they violate state or federal law”-it just asked that the challenge come in an “appropriate proceeding” in the trial division, not through judicial notice on appeal.

Category: Procedure, Sentencing, Uncategorized | Tags: ex post facto, interim policy, satellite based monitoring, sex offenders

Sex Offender Case Law Update (Part I)

Posted on July 15, 2009 by Jamie Markham

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.

Category: Sentencing, Uncategorized | Tags: ex post facto, satellite based monitoring, sex offenders, sex offenses

State v. Bare and Satellite-Based Monitoring

Posted on June 23, 2009 by Jamie Markham

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.

Category: Sentencing, Uncategorized | Tags: ex post facto, satellite based monitoring, sex offenders, sex offenses

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