SORNA Compliance Legislation

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SORNA Compliance Legislation

Posted on April 28, 2011 by Jamie Markham

I’ve written before about how North Carolina’s law related to sex offender registration has changed over the years in response to federal mandates. In 2006 Congress passed the Adam Walsh Child Protection and Safety Act, Title I of which is the Sex Offender Registration and Notification Act, or SORNA. SORNA includes a set of minimum standards related to sex offender registration that all states must substantially implement or lose 10 percent of their federal Byrne Memorial Justice Assistance Grant money. (To give you a sense of scale, North Carolina’s JAG allocation in 2010 was about $8.7 million.)

SORNA initially required jurisdictions to substantially implement its requirements by July of 2009. North Carolina—along with just about every other state—has received two one-year extensions, pushing our compliance deadline to July 27, 2011. With that deadline approaching, a SORNA compliance bill (HB 772) was introduced in the General Assembly a few weeks ago. I don’t generally want to offer much comment on pending legislation, but because some of the provisions in the bill would apply retroactively, people whose cases are pending now (who might, for instance, be in the midst of plea negotiations) may be interested to know how the law would affect them.

A major change made in the bill is to eliminate the definitions of “aggravated offense” and “sexually violent offense” and instead classify offenses into three tiers as follows:

TIER I OFFENSES

Sexual battery (G.S. 14‑27.5A);

Sexual servitude (G.S. 14‑43.13), where the facts of the case show the victim was not a minor at the time of the offense;

Incest between near relatives (G.S. 14‑178), where the facts of the case show the victim was not a minor at the time of the offense;

Felonious indecent exposure (G.S. 14‑190.9(a1));

Third-degree sexual exploitation of a minor (G.S. 14-190.17A);

Secretly peeping (G.S. 14‑202(d), (e), (f), (g), or (h), or a second or subsequent violation of G.S. 14‑202(a), (a1), or (c), only if the court sentencing the individual issues an order pursuant to G.S. 14‑202(l) requiring the individual to register;

Taking indecent liberties with children (G.S. 14‑202.1), when there is no sexual contact, or, if the court sentencing the individual finds that the victim was at least 13 years old, the offender was no more than eight years older than the victim, no force was used in the commission of the offense, and it is appropriate for the offense to be classified as a tier I offense;

The term also includes the following: an attempt, solicitation, or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.

TIER II OFFENSES

Intercourse and sexual offense with certain victims (G.S. 14‑27.7), where the facts of the case show the victim was at least 13 years old at the time of the offense;

Statutory rape or sexual offense of person who is 13, 14, or 15 years old (G.S. 14‑27.7A);

Sexual servitude (G.S. 14-43.13), where the facts of the case show the victim was at least 13 but less than 18 years old at the time of the offense;

Incest between near relatives (G.S. 14-178), where the facts of the case show the victim was at least 13 but less than 18 years old at the time of the offense;

Employing or permitting a minor to assist in offenses against public morality and decency (G.S. 14‑190.6);

First‑degree sexual exploitation of a minor (G.S. 14‑190.16);

Second-degree sexual exploitation of a minor (G.S. 14‑190.17);

Promoting the prostitution of a minor (G.S. 14‑190.18);

Participating in the prostitution of a minor (G.S. 14‑190.19);

Taking indecent liberties with children (G.S. 14‑202.1), where the facts of the case show the victim was at least 13 but less than 16 years old at the time of the offense and there was sexual contact with the victim;

Solicitation of child by computer to commit an unlawful sex act (G.S. 14‑202.3);

Parent or caretaker commit or permit act of prostitution with or by a juvenile (G.S. 14‑318.4(a1));

Commission or allowing of sexual act upon a juvenile by parent or guardian (G.S. 14‑318.4(a2)), where the facts of the case show the victim was at least 13 but less than 18 years old at the time of the offense;

The term also includes the following: an attempt, solicitation, or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.

TIER III OFFENSES

Any offense against a minor (defined in the bill just as it is under current law to include kidnapping (G.S. 14-39), abduction of children (G.S. 14-41), and felonious restraint (G.S. 14-43.3), if committed against a minor and the defendant is not the minor’s parent);

First-degree rape (G.S. 14-27.2);

Rape of a child; adult offender (G.S. 14-27.2A);

Second-degree rape (G.S. 14-27.3);

First-degree sexual offense (G.S. 14-27.4);

Sexual offense with a child; adult offender (G.S. 14-27.4A);

Second-degree sexual offense (G.S. 14-27.5);

Attempted rape or sexual offense (G.S. 14-27.6);

Intercourse and sexual offense with certain victims (G.S. 14-27.7), where the facts of the case show the victim was under the age of 13 at the time of the offense;

Subjecting or maintaining a person for sexual servitude (G.S. 14‑43.13), where the facts of the case show the victim was under the age of 13 at the time of the offense;

Incest between near relatives (G.S. 14‑178), where the facts of the case show the victim was under the age of 13 at the time of the offense;

Taking indecent liberties with children (G.S. 14‑202.1), where the facts of the case show the victim was under the age of 13 at the time of the offense and there was sexual contact with the victim;

Commission or allowing of sexual act upon a juvenile by parent or guardian (G.S. 14‑318.4(a2)), where the facts of the case show the victim was under the age of 13 at the time of the offense;

The term also includes the following: an attempt, solicitation, or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.

The registration obligations of a tier I offender under the proposed law would be similar to those of non-lifetime registrants under current law. He or she would have to register for 30 years with an opportunity to petition for removal from the registry after 10 years. (Federal guidelines require a minimum 15-year registration period for tier I offenders, reducible to 10 years for offenders with a “clean record,” as defined in SORNA. The proposed bill does not address that distinction.) Tier II offenders would have to register for 30 years (which exceeds the federally-mandated minimum of 25 years). Tier III offenders would have to register for life (which is what federal law requires). Recidivists would not necessarily have to register for life under the new law. Instead, tier I registrants who committed another tier I offense would become tier II registrants (and thus subject to a 30-year registration requirement), and tier II registrants who committed a subsequent tier I or tier II offense would become tier III registrants (and thus subject to lifetime registration).

Several things stand out to me about the new tier classification structure. First, statutory rape of a 13, 14, or 15 year-old by a defendant more than four but less than six years older than the victim under G.S. 14-27.7A(b) is added as a reportable conviction (it is not reportable under existing law). Second, indecent liberties with a student under G.S. 14-202.4(a) appears to have dropped off the list of reportable crimes. Third, the bill makes aiding and abetting an offense of any tier automatically reportable, unlike current law, under which aiding and abetting is only reportable if the court makes a finding that registration furthers the purposes of the registry. G.S. 14-208.6(4)(a).

Additionally, note that some offenses fall into different tiers depending on the way the offense is committed according to “the facts of the case.” Those added qualifiers are (I assume) designed to classify each offense as neatly as possible into the tiers set out in SORNA, which are themselves defined by reference to federal crimes or standards that do not always dovetail with our law. For instance, state offenses comparable to or more severe than abusive sexual contact (18 U.S.C. § 2244) of a minor who has not attained the age of 13 must, under SORNA, be classified in tier III. Thus, indecent liberties (which can be committed against 13, 14, and 15 year-olds by means other than sexual contact) is tier III under the proposed law only when “the facts of the case show the victim was under the age of 13 at the time of the offense and there was sexual contact with the victim.”

The requirement to evaluate the facts of the case raises some questions. Who will evaluate those facts? And what documents and other sources may that person consult to determine those facts? The final SORNA guidelines recognize this difficulty by providing that “[i]n assessing whether the offense satisfies the criteria for tier II or tier III classification, 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. However, where the tier classification depends on commission of an offense against a victim who is below a certain age, the requirement to give weight to this factor (victim age) is not limited to cases involving convictions for offenses whose elements specify that the victim must be below that age.” 73 Fed. Reg. 38030, 38053 (July 2, 2008). So in some ways, the bill’s approach goes beyond what federal law requires (which is permissible—the federal guidelines are a floor, not a ceiling).

The proposed law makes numerous other changes. Notably, it would make certain adjudications of delinquency for juveniles at least 14 years of age reportable just like crimes. This post is already too long so I won’t mention any others, but this may be a bill that interested persons want to add to their RSS feed.

Category: Sentencing, Uncategorized | Tags: adam walsh act, registration, sex offenders, sex offenses, SORNA

Sex Offender Registration as a Bargaining Chip

Posted on December 8, 2010 by Jamie Markham

I am sometimes asked if a defendant convicted of a reportable sex crime can plea bargain his or her way out of the obligation to register. I have also been asked if a defendant convicted of a non-reportable offense can plead his or her way into registration.

A formal advisory opinion from that state attorney general’s office suggests that the answer to both questions is no. The June 24, 2002 opinion letter, available here, was issued in response to a sheriff’s inquiry as to whether a particular person was required to register as a result of a federal conviction for sexual abuse of a ward. The letter concluded that the offender needed to register because that crime is substantially similar to G.S. 14-27.7(a), intercourse and sexual offense with certain victims, an offense that is reportable here. The opinion probably could have left it at that, but it went on to say that “it is our opinion that once an offender is convicted of a reportable offense . . . . the individual is subject to registration and no authority exists to alter this requirement. . . . No exceptions exist in North Carolina’s Sex Offender Registry Program either to exclude an otherwise registerable offender from the program, or to include an otherwise non-registerable offender in the program.”

I tend to agree. At the most basic level, plea agreements purporting to excuse a defendant from the obligation to register for a reportable conviction appear to run afoul of G.S. 14-208.7, which says offenders with a reportable conviction “shall be required to maintain registration.” Just as a defendant may not plea bargain around the sentencing laws, it seems to me that he or she may not plead around the registration requirement. See State v. Wall, 348 N.C. 671 (1998) (holding a defendant was not entitled to specific performance of a plea bargain for a concurrent sentence when a consecutive sentence was required by law, notwithstanding the prosecutor’s consent).

Moreover, it’s not clear that sex offender registration is generally something the court has authority to order (or not order) at all. Only in cases involving peeping crimes under G.S. 14-202(l) and aiding and abetting under G.S. 14-208.6(4)(a) does the court have to enter an affirmative order or make findings to trigger the registration requirement. Otherwise, aside from probationers ordered register as a special condition of probation under G.S. 15A-1343(b2), registration is a matter between the registrant and the sheriff that flows from the reportable conviction alone. But see State v. Phillips, __ N.C. App. __, 691 S.E.2d 104 (2010) (referencing a trial court “order requiring defendant to register as a sex offender for the duration of his natural life”). Only since the advent of determination hearings for satellite-based monitoring have trial courts routinely entered “orders” (on forms AOC-CR-615) requiring registration. The judicial notification required under G.S. 14-208.8 for defendants who do not receive an active sentence (for which judges may use AOC-CR-261) is not an order, but rather notice to the defendant of his or her duty to register.

I’ve heard this issue might soon be before the court of appeals. If it results in a reported case I’m sure I’ll write something about it here.

Category: Sentencing, Uncategorized | Tags: plea bargaining, registration, sex offenders, sex offenses

Comprehensive Resources Regarding Sex Offender Registration and Monitoring

Posted on November 15, 2010 by Jeff Welty

New Sex Offender Registration and Monitoring Chart

Posted on August 18, 2010 by Jamie Markham

Proper Notice for SBM Determinations: State v. Stines

Posted on October 9, 2009 by Jamie Markham

I mentioned earlier that the court of appeals decided two satellite-based monitoring cases this week. I discussed State v. Morrow on Wednesday. Today I’ll cover State v. Stines.

In Stines, the defendant was convicted of taking indecent liberties with children in 1997 and again in 2004. He was sentenced to active time for the 2004 conviction and released in 2007, at which point the Department of Correction made an initial determination under G.S. 14-208.40B(b) that he fell within one of the categories of sex offenders required to enroll in monitoring. DOC sent Mr. Stines a letter saying the department had “made the initial determination that [he met] the criteria set out in General Statute 14-208.40(a),” and ordered him to come to court for a hearing at which a judge would decide whether he had to enroll in SBM. The trial court found the defendant to be a recidivist and ordered him to enroll in SBM for life. Stines appealed.

After quickly rejecting Mr. Stines’s ex post facto argument, the court of appeals considered his due process claim. Stines argued that the State failed to give him sufficient notice of the basis for DOC’s preliminary determination because the hearing notification letter did not indicate which of the SBM eligibility categories (recidivist; aggravated offender; sexually violent predator; or offense involving the mental, physical, or sexual abuse of a minor) applied to him. The court agreed.

Enrollment in SBM, the court said, infringes on a significant liberty interest-it requires the physical attachment of a device to the offender, continuous surveillance of the offender’s movement, and compliance with DOC regulations. To avoid “serious doubts” about the constitutionality of the generalized notice Mr. Stines received, the court construed G.S. 14-208.40B(b) to require DOC to give the defendant notice not just that an initial SBM determination has been made, but also of the content of the determination. In other words, DOC must specify “the category or categories into which the offender falls and the basis for that conclusion.” The court remanded Mr. Stines’s case for a new SBM hearing.

I have a few thoughts about Stines. First, it seems to me that the court walks a pretty fine line in concluding that SBM infringes on a significant liberty interest but is not punitive. Indeed, in support of its liberty-infringement analysis the court cites to Commonwealth v. Cory, the only reported case in the nation in which a court finds that satellite-based monitoring amounts to punishment. See 911 N.E.2d 187 (Mass. 2009) (“There is no context other than punishment in which the State physically attaches an item to a person . . . that must remain attached for a period of years and may not be tampered with or removed on penalty of imprisonment. Such an imposition is a serious, affirmative restraint.”). This leads me to think that SBM, if not punishment, must be just about as close to punishment as you can possibly get. Other defendants making due process arguments (about the standard of proof in an SBM hearing, for example) could probably marshal the court’s language in Stines in support of a more trial-like hearing procedure.

Second, there’s an apparent disconnect between the court’s requirement of enhanced notice in Stines and its rejection of a very similar argument in State v. Morrow. Mr. Morrow argued that the SBM statute violated his due process rights by failing to give him notice of what facts would require him to be monitored. He went into the hearing, he said, with “absolutely no idea of the basis upon which the decision to require monitoring will be made.” The Morrow court dismissed the due process argument, noting that defendants could get some idea about the evidence that might come into play at an SBM hearing by examining DOC regulations on file with the Attorney General. The Stines court, meanwhile, found it unreasonable to require offenders to investigate and prepare to respond to all possible SBM eligibility categories in as little as 15 days, the minimum notice period set out in G.S. 14-208.40B(b). If anything it seems like Morrow, a conditional offender subject to the complicated and fact-laden “offense involving the abuse of a minor” and “highest possible level of supervision and monitoring” determinations, would derive greater benefit from a more detailed notification letter than Stines, an alleged recidivist for whom the SBM determination is relatively straightforward.

I suppose it’s possible to reconcile the cases: Mr. Morrow complained of a lack of notice of facts, whereas Mr. Stines complained that he didn’t know which eligibility category applied to him. But the court’s holding in Stines, that G.S. 14-208.40B(b) requires DOC to “specify the category set out in N.C. Gen. Stat. § 14-208.40(a) into which the Department has determined the offender falls and briefly state the factual basis for that conclusion,” appears to encompass both complaints. Based on that language I think DOC ought to beef up its bring-back hearing notification letter to include both the alleged SBM eligibility category and, briefly, the facts behind that allegation.

Finally, it appears I was wrong when I wrote in an earlier post that SBM hearings at sentencing should look pretty much the same as bring-back hearings. In Stines the court noted that G.S. 14-208.40A requires the district attorney to present evidence when an SBM hearing is conducted at sentencing, but G.S. 14-208.40B, the bring-back hearing statute, includes no comparable provision. The DA does, however, have to represent DOC at bring-back hearings under legislation enacted this term (S.L. 2009-387). It seems like that representation would require the DA to present evidence in line with DOC’s initial determination of SBM eligibility. Anyone have any thoughts on that?

Category: Procedure, Sentencing, Uncategorized | Tags: registration, satellite based monitoring, sex offenders, sex offenses

Sex Offender Q and A

Posted on July 23, 2009 by Jamie Markham

by School of Government faculty member Jamie Markham

Last month I taught a session for the superior court judges on sex offender registration and monitoring. The handout I used included a set of exercises that we didn’t have time to get through in the session, so I promised the judges I would distribute answers. But why should they get to have all the fun? The exercises follow, with answers after the jump. My sex offender registration and monitoring flow chart is available here if you need it. Page Two, Side Two of form AOC-CR-603 might also come in handy. Finally, for those interested in additional reading, the full handout I used in the session is available here and a related handout from another session is available here.

1. Which of the following offenders are subject to sex offender registration?

a. A defendant is convicted of sexual battery on January 15, 2008, based on acts that occurred on October 5, 2005.

b. A defendant is convicted of crime against nature on November 12, 2008, based on acts that occurred on July 1, 2008.

c. A defendant released from prison on July 1, 1996 after serving a 15-month sentence for an April 1995 conviction for taking indecent liberties with children.

2. A defendant pleads guilty to assault on a female based on acts involving his 12-year-old step-daughter. He pushed her after she refused his sexual advances. He is sentenced to 36 months of probation.

a. Is this a reportable conviction?

b. Is the defendant subject to any special conditions of probation?

3. A person subject to the 30-year sex offender registration requirement was arrested and charged with failure to register when he didn’t respond to a semiannual verification form as required in G.S. 14-208.11. Can this offender successfully petition to terminate his registration requirement after 10 years under G.S. 14-208.12A?

4. In 2009, a defendant is convicted of first-degree rape based on an offense that occurred July 1, 2000. The victim was a 25-year-old woman.

a. Is this a reportable conviction? If so, how long must this offender register?

b. Is the offender subject to satellite-based monitoring? If so, for how long?

c. Suppose the victim was a 16-year-old girl. Does this change your answer to (b)?

5. A 19-year-old defendant pleads guilty to taking indecent liberties with a 13-year-old girl. The offense, which involved consensual oral sex, took place January 12, 2009.

a. Is the offender subject to satellite-based monitoring? If so, for how long?

b. Suppose the victim was 11. Does this change your answer to (a)?

6. A defendant was convicted for taking indecent liberties in 1989. He was later convicted again for taking indecent liberties in 2005, given an active sentence, and released from prison in 2008. Is he subject to lifetime registration and lifetime satellite based monitoring as a recidivist?

7. In 2009, a defendant is convicted of felony indecent exposure under G.S. 14-190.9(a1). The victim was a 10-year-old girl. At sentencing you determine that the offender is not a recidivist, aggravated offender, or sexually violent predator. You do, however, find that the defendant committed an act involving the sexual abuse of a minor, so you order DOC to complete a risk assessment.

a. Do you wait for DOC to complete the risk assessment before sentencing the defendant? (G.S. 14-208.40A(d) says DOC shall have 30 to 60 days to complete the assessment and report the results.)

b. Suppose the assessment comes back MODERATE. What are your options?

c. Suppose the assessment comes back HIGH. What are your options?

Again, the answers are after the jump.

Continue reading →

Category: Sentencing, Uncategorized | Tags: registration, satellite based monitoring, sex offenders, sex offenses

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