STATE OF NORTH CAROLINA v. KENNEY BOWDITCH, KENNETH EDWARD PLEMMONS, AND MARK ALLEN WATERS
No. 448PA09
IN THE SUPREME COURT OF NORTH CAROLINA
8 October 2010
364 N.C. 335 (2010)
BRADY, Justice.
Subjecting sexual offenders to the satellite-based monitoring program (SBM) does not violate the ex post facto clauses of the state or federal constitution where the offenses occurred before the SBM statutes took effect. SBM has the nonpunitive objective of being a regulatory tool against an unacceptable threat to public safety. Examining the relevant factors from Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), neither the purpose nor the effect of the program negates the legislature‘s civil intent. The trial court was reversed.
Justice HUDSON dissenting.
Chief Justice PARKER and Justice TIMMONS-GOODSON join in this dissenting opinion.
On discretionary review pursuant to
Roy Cooper, Attorney General, by Joseph Finarelli, Assistant Attorney General, for the State-appellant.
Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellee Kenneth Plemmons; Paul F. Herzog for defendant-appellee Kenney Bowditch; and Rhonda K. Moorefield for defendant-appellee Mark Waters.
BRADY, Justice.
In 2006 the North Carolina General Assembly ratified “An Act To Protect North Carolina‘s Children/Sex Offender Law Changes” direct-
PROCEDURAL BACKGROUND
Defendant Plemmons pleaded guilty on 1 November 2006 to five counts of taking indecent liberties with a child. He stipulated to the aggravating factors that the victim was very young and that he abused a position of trust with the victim. Beginning in February and ending in May 2006, defendant Plemmons committed the multiple offenses when he was at least fifty years of age and his victim was a young girl of five to six years of age. Two of the offenses were consolidated for sentencing, and defendant Plemmons received an active term of imprisonment of twenty-four to twenty-nine months. The trial court suspended the remaining sentences and imposed a period of supervised probation.
Defendant Waters pleaded guilty on 12 April 2007 to five counts of taking indecent liberties with a child. At the time of his offenses, which were committed between August and December 2004, defendant Waters was approximately forty years old and his victim was a ten year old girl. The trial court suspended the sentences and imposed a period of supervised probation on defendant Waters.
Defendant Bowditch pleaded guilty on 3 December 2007 to eight counts of taking indecent liberties with a child. From June through August 2006, Bowditch, who was then sixteen years old, committed his offenses against an eight year old victim. After consolidating some of the cases and suspending sentences, the trial court imposed a period of supervised probation on defendant Bowditch.
FACTUAL BACKGROUND
After its enactment effective 16 August 2006, the SBM legislation was codified at Part 5 of Article 27A, Chapter 14, of the North Carolina General Statutes. Chapter 14 contains the Criminal Law portion of our statutes, and Article 27A is entitled “Sex Offender and Public Protection Registration Programs.” As authorized by the legislation, DOC established and began administering the SBM program on 1 January 2007.
At the hearings conducted on 1 May and 28 May 2009, the trial court heard testimony from three individuals who were employed by DOC in the Division of Community Corrections (DCC). Todd Carter testified about his role as a probation officer assigned to assist with monitoring SBM participants on a local level; Lori Anderson testified as a manager for the Twenty-Eighth Judicial District; and Hannah
In relevant part, their testimony tended to reflect the following: SBM‘s enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as “lifetime trackers.” Cf.
All SBM participants receive three items of equipment. First, at all times they wear a transmitter, which is a bracelet held in place by a strap worn around one ankle. Tampering with the bracelet or removing it triggers an alert. The ankle bracelet in use at the time of the hearings was approximately three inches by one and three-quarters inches by one inch. Second, participants wear a miniature tracking device (MTD) around the shoulder or at the waistline on a belt. The MTD may not be hidden under clothing. The device contains the Global Positioning System (GPS) receiver and is tethered to the ankle bracelet by a radio-frequency (RF) signal. The size of the MTD in use at the time of the hearings was four and one-quarter inches by two inches by three inches. The MTD includes an electronic screen that displays text messages communicating possible violations or information to the participant. Third, a base unit is required for charging the MTD‘s battery, and although it is typically kept at a participant‘s residence, the base unit may be used to recharge the MTD wherever electricity is available. The MTD requires at least six hours of charging per twenty-four hour period.
Personnel from DCC perform maintenance on the equipment every ninety days and replace the transmitter once a year. This maintenance requires a visit to the location of the base. The maintenance is conducted under an agreement signed by SBM participants when monitoring begins. Criminal liability is imposed for, inter alia, refusing to allow the required maintenance, destroying the equipment, or interfering with its proper functioning.
The monitoring aspects of SBM are conducted by DOC/DCC. Personnel in Raleigh monitor unsupervised participants and assist field staff with tracking supervised offenders. Outside of normal
The equipment facilitates a “near real time” log of a participant‘s movements. However, only periodic checks are conducted on the movements of unsupervised participants, going back a day or two at a time. If DCC personnel observe certain patterns of movement or locations that a participant appears to frequent, they may contact local officers to identify the area and look for vulnerable sites, such as schools or day-care centers. If reviewing the tracking information reveals a participant‘s presence at a location that may constitute a violation of North Carolina law, DCC contacts local law enforcement, which may investigate further. Supervised offenders may be subject to “inclusion zones,” areas in which they must remain for a period of time, or “exclusion zones,” which they must refrain from visiting. No such zones are utilized for unsupervised participants. The tracking information is stored at DOC for one year, and then the program vendor archives the information for the length of the State‘s contract plus seven years.
The SBM equipment transmits various alerts regarding potential violations to DCC personnel. Alerts that are uploaded “immediately” consist for the most part of alerts indicating “bracelet gone,” violations of “inclusion” or “exclusion” zones, or “no GPS” signal. The alert for “bracelet gone” is sent when transmission is lost between the ankle bracelet and the MTD. The loss in transmission may be due to a variety of causes, such as removing the MTD and venturing too far away from it. Equipment in use at the time of the hearings allowed for a range of approximately fifty feet between the MTD and the ankle bracelet, while newer equipment allows for a range of up to thirty feet. The alerts for “inclusion” or “exclusion” zones are triggered when a supervised SBM participant violates the boundaries of an established zone. The “no GPS” alert is triggered when transmission is lost between participants and the satellite that is tracking their movements. SBM participants must acknowledge the alerts and respond to attempts to resolve them.
SBM may affect a participant‘s daily activities. Entrance into some buildings disrupts the GPS signal, requiring the participant to go outside to reestablish satellite connection. Submerging the ankle bracelet in three feet or more of water generates a “bracelet gone” alert. In terms of travel, the SBM program places no restrictions on unsupervised participants who may leave the state temporarily or permanently after returning the SBM equipment to
Nonetheless, testimony indicated that the equipment and DCC can make accommodations according to the needs of SBM participants. At a place of employment, the MTD can be set at a stationary location while the participant moves around, as long as the range of the equipment‘s signal is not exceeded. If circumstances necessitate going in and out of range, officers know of a participant‘s employment situation and can confirm via telephone that the participant is at work. Moreover, for certain medical procedures the ankle bracelet can be relocated or removed. If a physician orders a magnetic resonance imaging (MRI) procedure, for example, DCC staff can remove the equipment for the MRI.
ANALYSIS
An appellate court reviews conclusions of law pertaining to a constitutional matter de novo. State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (citing Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004)). The trial court‘s findings of fact are binding on appeal if they are ” ‘supported by competent evidence,’ ” and they must ultimately support the trial court‘s conclusions of law. Id. (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
This Court has considered a number of cases involving various statutory provisions directed at convicted sex offenders. See, e.g., State v. Abshire, 363 N.C. 322, 677 S.E.2d 444 (2009) (clarifying the definition of “address” in the registration statutes); Standley v. Town of Woodfin, 362 N.C. 328, 661 S.E.2d 728 (2008) (upholding a city ordinance criminalizing knowing entry into public parks by registered sex offenders); State v. Bryant, 359 N.C. 554, 614 S.E.2d 479 (2005) (upholding registration statutes as constitutional when applied to a convicted sex offender who moved to North Carolina from another jurisdiction). The case before us is this Court‘s first opportunity to rule on an aspect of the SBM program.2
The United States and North Carolina Constitutions prohibit ex post facto laws.
In 1997, the Supreme Court of the United States reviewed legislation enacted by Kansas that established “procedures for the civil commitment of persons who, due to a ‘mental abnormality’ or a ‘personality disorder,’ are likely to engage in ‘predatory acts of sexual violence.’ ” Kansas v. Hendricks, 521 U.S. 346, 350 (1997) (quoting
An ex post facto analysis begins with determining whether the express or implicit “intention of the legislature was to impose pun-
The Legislative Objective in Enacting SBM Was Nonpunitive
Our analysis begins with discerning through statutory construction “the legislative objective,” id. (citing Flemming v. Nestor, 363 U.S. 603, 617 (1960)), whether announced “expressly” or indicated “impliedly,” regarding SBM‘s status as civil regulation or criminal punishment, id. at 92-93 (quoting Hudson v. United States, 522 U.S. 93, 99 (1997)). The text, structure, manner of codification, and enforcement procedures of the statutory scheme are a few of the probative indicators of legislative intent. Id. at 92-94 (citations omitted). At the outset, we note that the legislature did not expressly attach the label of civil or criminal to the SBM program. Unlike the sex offender registration programs, which are prefaced by an extensive expression of purpose in
The legislature‘s intent in establishing SBM may be inferred from the declaration in the authorizing legislation that it “shall be known as ‘An Act To Protect North Carolina‘s Children/Sex Offender Law Changes.’ ” Ch. 247, sec. 1(a), 2006 N.C. Sess. Laws at 1066. Desiring to protect our State‘s children from the recidivist tendencies of convicted sex offenders demonstrates an intent to create a nonpunitive, regulatory scheme. Cf. Smith, 538 U.S. at 93 (noting that nonpunitive sex offender registration statutes were designed to protect the public from harm); Hendricks, 521 U.S. at 361-63 (noting that involuntary civil commitment of dangerous sex offenders was intended to protect the public).
Furthermore, the placement of the SBM program within Article 27A of Chapter 14 of our General Statutes is significant. The SBM program follows immediately after the Article 27A sections composing the Sex Offender Registration Programs.
Defendants suggest that the SBM program‘s location in Chapter 14, the “Criminal Law” portion of our General Statutes, is relevant. However, placement in a criminal code is not dispositive. See, e.g., Smith, 538 U.S. at 94-95 (stating that codifying a sex offender registration provision in a criminal procedure code was not dispositive of the statute‘s punitive nature); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (holding that a forfeiture provision for firearms was a civil sanction despite codification of its authorizing statute in a criminal code). We are more persuaded to recognize the legislature‘s civil intent behind SBM by noting that the program was codified into the previously recognized nonpunitive, regulatory scheme located in Article 27A of Chapter 14.
Another attribute of the SBM program that may be probative of legislative intent is that its administration is overseen by the Division of Community Corrections, which is under the Department of Correction. Even though Hannah Roland testified that in her opinion there were no other DOC programs that were not criminal punishment of some sort, any initial reaction that DOC/DCC‘s involvement inherently relegates SBM to the domain of criminal punishment is premature.
Among DOC‘s varied responsibilities and activities are programs “designed to give persons committed to the Department op-
In sum, the General Assembly described the SBM program as a means “To Protect North Carolina‘s Children” and codified the SBM provisions in Article 27A of Chapter 14 of our General Statutes. These decisions in particular evince the nonpunitive objective of making SBM another regulatory tool in an effort to defend against an unacceptable threat to public safety.
Civil Intent Is Not Negated by SBM‘s Purpose or Effect
Although the legislature sufficiently implied its civil intent in enacting the SBM program, ex post facto jurisprudence compels an analysis of whether SBM is so punitive in purpose or effect that the legislature‘s civil intent is negated. See Smith, 538 U.S. at 92. The ” ‘useful guideposts,’ ” id. at 97 (quoting Hudson, 522 U.S. at 99), for this analysis are factors compiled in Kennedy v. Mendoza-Martinez. They are helpful but not necessarily ” ‘exhaustive’ ” or ” ‘dispositive.’ ” Id. at 97 (quoting United States v. Ward, 448 U.S. 242, 249 (1980)). As the Court in Smith similarly recognized, two of the factors carry “little weight” in this context because SBM applies only to certain offenders based on their past conduct, not to their current
factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.
Smith, 538 U.S. at 97; see Mendoza-Martinez, 372 U.S. at 168-69 (footnotes omitted). The trial court stated that it considered the Mendoza-Martinez factors and in its order listed seven points in support of its determination that the factors weigh in favor of negating the legislature‘s civil intent. While it is not entirely clear which of the trial court‘s observations correspond to which factors, we will assess some of the trial court‘s observations and defendants’ arguments as we undertake a de novo review of the issue.
As outlined in Smith, addressing the first relevant factor entails a discussion of historical or traditional methods of punishment. The technology behind SBM is relatively new, and in that sense, it has no history or tradition of being used for punishment. As such, a meaningful discussion requires an attempt at drawing analogies. The trial court concluded that traditional criminal punishments and SBM share the aspects of “supervision by the State” and “[s]hame and humiliation by wearing a readily identifiable mechanism in public.” Defendants also argue that relevant here are the trial court‘s references to SBM as being similar to electronic house arrest and to a defendant‘s ability to free himself of SBM by leaving the state permanently.
An offender‘s period of parole or probation, and its attendant State supervision, historically have been considered a form of crimi-
The monitoring taking place in the SBM program is far more passive and is distinguishable from the type of State supervision imposed on probationers, who must live under a regime of ” ‘conditional liberty properly dependent on observance of special [probation] restrictions.’ ” Griffin, 483 U.S. at 874 (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (alteration in original)); see also Smith, 538 U.S. at 101 (“Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release . . . .” (citations omitted)). Through the SBM program the State is logging and reviewing information about offenders’ whereabouts. Hannah Roland explained DCC‘s approach to the “lifetime trackers,” stating “[A]ll we‘re doing is tracking them. We‘re not technically supervising them. As the law stipulates, they are unsupervised.” Even the requirement that DCC personnel be allowed to enter a participant‘s residence every ninety days is dissimilar from a parole or probation setting. DCC‘s reason for the visit is not supervisory or investigatory; the only purpose is to perform regularly scheduled maintenance on the SBM equipment that is still property of the State.
Furthermore, likening the SBM program more to house arrest than to sex offender registration is unavailing. Defendants argue that “DOC has the power” to establish and limit an inclusion zone “to the offender‘s residence, thereby turning the home into a prison cell.” However, there is no evidence that exclusion or inclusion zones have been utilized for unsupervised SBM participants. Hannah Roland was asked by defense counsel at one point about the zones: “But they could be utilized; is that correct?” and her answer was “No.” Her tes-
As additional support for the house arrest argument, defendants note that the MTD‘s battery requires recharging for six hours during every twenty-four hour period. This ties the SBM participant for the charging period to the location of the base unit, which is most likely the participant‘s residence. However, this feature of the SBM equipment can be distinguished from a house arrest situation because the MTD‘s battery can be charged wherever electricity is available. In this day and age, finding a source of available electricity, whether at a home, hotel, place of employment, or even in a moving vehicle, should be little or no challenge.
Next, defendants argue that SBM is similar in form to historical punishments involving shaming and humiliation because the ankle bracelet and MTD must be worn in a conspicuous manner that is thus visible in public. The Court in Smith noted how historically there have been certain punishments intended to “inflict public disgrace,” such as ordering convicted offenders ” ‘to stand in public with signs cataloguing their offenses.’ ” 538 U.S. at 97 (quoting Adam J. Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179, 1226 (1982)). There is a dispositive difference between these historical types of shaming punishments and SBM. An integral dynamic of a shaming punishment is the State‘s purposeful arrangement of a “face-to-face” display of the offender in front of fellow citizens for public disgrace and ridicule. Id. at 98. With SBM the State‘s objective is not to publicize crimes and bring a “resulting stigma” on the offender. See id. at 99. Any humiliation from enrollment in SBM is unintended by the State.
There is no evidence in the record that any sex offender has faced personal embarrassment or social ostracism because of wearing the SBM equipment in public, nor is there any evidence that a casual public observer has even recognized the SBM equipment and identified its wearer as a convicted sex offender. We are persuaded by the observation of the court in Doe v. Bredesen, which concluded that Tennessee‘s SBM equipment was “relatively unobtrusive” and
The final historical means of punishment that defendants attempt to analogize to SBM is that of banishment. There is no dispute that “banishment and exile have throughout history been used as punishment.” Mendoza-Martinez, 372 U.S. at 168 n.23. Banishment is “[e]xpulsion from” a community. Black‘s Law Dictionary 655 (9th ed. 2009) (defining “exile” and showing “banishment” as a synonym thereof). Here, the argument is unconvincing because SBM expels no one from anywhere. An unsupervised offender subject to SBM is free to leave North Carolina and remove himself from any regulatory scheme imposed by our State, including SBM, if he so chooses. SBM does not banish anyone, and neither is leaving the state the only means of removal from the SBM program. See
The second relevant Mendoza-Martinez factor is whether SBM imposes an affirmative disability or restraint on its participants and if so, to what extent. This requires a consideration of “how the effects of [SBM] are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” Smith, 538 U.S. at 99-100.
There is no denying that being subjected to SBM has an impact on the lives of its participants. Yet, when viewed in light of other civil, regulatory schemes, we cannot conclude that the effects of SBM transform it into criminal punishment. While considering an ex post facto challenge to a sex offender registration scheme in Smith, the Court commented that registration “obligations are less harsh than the sanctions of occupational debarment, which [ ] have [been] held to be nonpunitive.” Id. at 100 (emphasis added) (citing Hudson, 522 U.S. at 104 (forbidding work in the banking industry); 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 medical license));
The effects of the present SBM program are also less harsh than the post-incarceration, involuntarily confinement of sex offenders that was found to be nonpunitive in Kansas v. Hendricks, 521 U.S. 346 (1997). In Hendricks the Court acknowledged that the civil commitment scheme involved “an affirmative restraint,” but noted that even detainment ” ‘does not inexorably lead to the conclusion that the government has imposed punishment.’ ” Id. at 363 (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). The SBM program does not detain an offender in any significant way. Defendants point out that the SBM program requires participants to acknowledge messages sent via the MTD and cooperate with DCC in resolving alerts. Additionally, every ninety days a participant must allow DCC personnel to perform maintenance on the SBM equipment where it is located, typically in the participant‘s residence. While these requirements of the SBM program, and others, constrain a participant‘s experience of absolute freedom, 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. Similar to registration schemes, the requirements necessary to operate SBM “make a valid regulatory program effective and do not impose punitive restraints.” Smith, 538 U.S. at 102.
Noting the maintenance that must be performed by DCC personnel every ninety days, typically within an offender‘s residence, the dissenting opinion argues that the SBM program unnecessarily burdens the Fourth Amendment rights of those convicted felons subject to SBM. However, it is beyond dispute that convicted felons do not enjoy the same measure of constitutional protections, including the
Finally, in regards to the second factor, defendants list an array of activities that SBM may prohibit or render more difficult. Examples include bathing, swimming, scuba diving, camping in rural areas, and travel by airplane. Moreover, any activity conducted inside a building potentially could be interrupted if the building‘s structure blocked the satellite signal and required a participant to exit and reestablish satellite connection. These are not trivial interferences, yet they are certainly no more onerous than the harsh effects of the regulations found to be nonpunitive in occupational debarment cases or in Hendricks.
Doe v. Bredesen is likewise persuasive on this point. The court in that case considered record testimony from an offender enrolled in Tennessee‘s SBM program. He described his experiences of not being allowed to swim or bathe, of needing to go outside a building “at least once every hour so that monitoring can take place,” and of one time “stand[ing] in the rain, for over thirty minutes, for all his neighbors to see” while a problem with the equipment was corrected. Bredesen,
The next relevant factor is whether the SBM program promotes the traditional aims of punishment. Retribution and deterrence are “the two primary objectives of criminal punishment.” Hendricks, 521 U.S. at 361-62. Defendants argue that SBM is retributive because it applies only to individuals who have been convicted of prior criminal behavior. In Hendricks the Court noted that under Kansas law, even “persons absolved of criminal responsibility may nonetheless be subject to confinement.” Id. at 362 (citation omitted). The Court commented that the “absence of the necessary criminal responsibility suggests that the State [was] not seeking retribution for a past misdeed.” Id. We do not find this language dispositive, though, in light of Smith, which did not conclude that Alaska‘s sex offender registration scheme was retributive even though registration “applie[d] only to past conduct, which was, and is, a crime.” 538 U.S. at 102, 105. The SBM program is concerned with protecting the public against recidivist tendencies of convicted sex offenders. Thus, the fact that it applies only to individuals convicted of prior criminal conduct is consistent with its regulatory purpose and not indicative of a retributive nature.
Both the State and defendants acknowledge that SBM may have a deterrent purpose or effect in some measure. “But the mere presence of this purpose is insufficient to render a sanction criminal . . . .” Hudson, 522 U.S. at 105 (citations omitted). As the Court recognized in Smith, “[a]ny number of governmental programs might deter crime without imposing punishment,” 538 U.S. at 102, and that is the case here. The SBM program‘s foremost purpose is not to deter crime, and the possibility of having that secondary effect does not transform SBM into a form of punishment.
The fourth relevant factor is whether SBM has a rational connection to a nonpunitive purpose. The Court in Smith identified this indicator as “a ‘[m]ost significant’ factor in [its] determination.” Id. at 102 (emphasis added) (quoting United States v. Ursery, 518 U.S. 267, 290 (1996) (alteration in original)). Both the State and defendants recognize a rational connection between SBM and the nonpunitive purpose of protecting the public.
The fifth and final relevant Mendoza-Martinez factor is whether SBM is excessive with respect to its nonpunitive purpose of public safety. This inquiry “is not an exercise in determining whether the
Moreover, SBM‘s reasonableness is supported by its limited application and its potentially limited duration. Only three classifications of offenders qualify for SBM according to
CONCLUSION
The SBM program at issue was enacted with the intent to create a civil, regulatory scheme to protect citizens of our state from the threat posed by the recidivist tendencies of convicted sex offenders. Having examined the relevant Mendoza-Martinez factors in detail, we conclude that neither the purpose nor effect of the SBM program negates the legislature‘s civil intent. Accordingly, subjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution. The trial court is reversed, and this case is remanded to that court for further proceedings consistent with this opinion.
Justice HUDSON dissenting.
Sexual offenses are among the most disturbing and damaging of all crimes, and certainly the public supports the General Assembly‘s efforts to ensure that victims, both past and potential, are protected from such harm. We all agree that innovative approaches are especially necessary to minimize, if not remove, any contact between vulnerable children and those who would prey on them. My review of the record here, however, reveals that the satellite-based monitoring (SBM) program as implemented through the Department of Correction has marginal, if any, efficacy in accomplishing that important purpose. As such, I conclude that its substantial interferences into the daily lives of those monitored are too punitive in effect to be imposed retroactively on these petitioners. I would therefore reverse the Court of Appeals and affirm the trial court‘s order.
I agree with the majority opinion that nothing on the face of the statutes in question,
When we properly apply Mendoza-Martinez, by giving heavy weight to the two key factors, namely, whether the regulatory scheme “has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose,” Smith v. Doe, 538 U.S. 84, 97 (2003), I must conclude this program is punitive in effect. Indeed, the United States Supreme Court has emphasized that “[t]he Act‘s rational connection to a nonpunitive purpose is a most significant factor in our determination that the statute‘s effects are not punitive,” while noting that even “imprecision” or a “lack[] [of] a close or perfect fit” between a statute and its nonpunitive aims does not mean the stated purpose is a “sham or mere pretext.” Id. at 102-03 (citations, internal quotation
As to this “most significant factor” from Mendoza-Martinez, the majority merely recites the State‘s assertion of a “rational connection between SBM and the nonpunitive purpose of protecting the public.” Nowhere does the majority opinion—or even the State, in its brief and arguments to this Court or in the hearing before the trial court—articulate how the SBM program, as currently implemented by the DOC through the Division of Community Corrections (DCC), even begins to further its stated purpose of protecting our State‘s children. Likewise, the majority opinion refers to the risk of recidivism by these offenders and concludes, without any evidence or additional analysis, that “[t]he SBM program at issue is reasonable when compared to the unacceptable risk against which it seeks to protect.”5
Indeed, the trial court returned to this question repeatedly at the hearing, particularly the statements by DCC personnel that inclusion and exclusion zones are not used as part of the program:
[Todd Carter]: I think part of the problem is like an urban—like Asheville, North Carolina, we have a lot of schools. If somebody‘s going up Merrimon Avenue—
COURT: I understand the difficulties of it. The question is what benefit is the state getting from this knowing where the defendants are if there are no places that are excluded that they can‘t go? There must be some purpose to doing this, I assume.
[Todd Carter]: Yes, your Honor. I think why they don‘t do that is they would get so many false readings.
COURT: I understand that, but why do they? Why do they monitor people at all? Or do you know?
[Todd Carter]: I guess part of it is because it‘s the law and policy handed down.
Again, when Lori Anderson was testifying:
COURT: But there‘s nothing by regulation or statute that would stop somebody who‘s done with all this but still under satellite monitoring from going into a school or park other than Woodfin and other things like that?
A: Not that I‘m aware of.
Similarly, Hannah Roland affirmed that, with respect to “unsupervised” offenders, who are no longer on any type of post-release parole or probation, “They are not under any type of supervision, so we don‘t want to appear to be supervising them. It‘s a periodic check.” Ms. Roland attributed this effort not “to appear to be supervising them” to advice that DOC and DCC had received from their legal counsel.
This testimony calls into serious question the efficacy of the SBM program as currently implemented without the use of inclusion and exclusion zones. Although, as the Supreme Court stated in Smith, a regulatory scheme need not be “the best choice possible to address the problem,” 538 U.S. at 105, 155 L. Ed. 2d at 185, courts have repeatedly emphasized the need for some showing that the program does, in fact, advance the stated nonpunitive purpose. See, e.g., id. at 102-03, 155 L. Ed. 2d at 183 (observing that the sex offender registry statute in question “has a legitimate nonpunitive purpose of ‘public
Here the majority opinion itself repeatedly downplays the intrusive nature of the SBM program and emphasizes that it is “passive,”6 that unsupervised enrollees “are only periodically checked,” that no enrollees are currently subject to inclusion or exclusion zones (and unsupervised enrollees never will be), and that the State is merely “logging and reviewing information about offenders’ whereabouts” after the fact. Most telling, the equipment provides only a “near real-time” log of enrollees’ movements, and DCC personnel testified that they do not always immediately respond to all alerts because the equipment so frequently loses signal.
Moreover, Ms. Roland testified that she had a staff of only two probation officers to oversee the seventy people subject to lifetime monitoring as of May 2009. She agreed that “there‘s a lot of randomness to the monitoring” of the lifetime enrollees. The exhibits submitted by the DOC and DCC, including the “agreements“, signed by enrollees, and the testimony at the hearings indicate that the SBM
Thus, although DOC and DCC may “observe certain patterns of movement or locations that a participant appears to frequent,” prompting follow-up investigation to see if the area has any “vulnerable sites, such as schools or daycare centers,” no evidence or testimony suggests that the SBM program—with its ongoing interference in and with enrollees’ daily lives, even those who have completed all criminal sentences and other post-release supervision—operates to prevent actual harm to our state‘s children. Of course, the records maintained by the DCC about enrollees’ movements and whereabouts may be useful in apprehending a suspect after a crime has already taken place, but the SBM program does nothing to bar enrollees—those at high risk of recidivism—from abusing a child anywhere, at any time.8 Rather, the record before us, particularly the testimony of DCC officials, demonstrates that no one knows when one of these offenders is actually in a school, or near a child care center, or talking to a neighborhood child, or even has a child in his home, before any harm might befall that child.9 The General As-
Given that the program as implemented essentially fails in its nonpunitive purpose, the numerous affirmative restraints and intrusions it imposes on its enrollees become, in my view, punitive in effect. These intrusions include the following, found as fact by the trial court and unchallenged by the State, which are binding on this Court on appeal:
7. Generally persons who have completed probation are not subject to supervision by the State. Persons who were not on probation who are subject to satellite based monitoring are subject to supervision by the State in the following ways:
A. If they are in a building and there is a break in contact with the satellite they are ordered to remove themselves from the building until the satellite contact is reconnected.
B. Every 90 days the satellite monitoring equipment in the possession of the Defendant must be checked by a probation officer.
C. Employees of the State are at all times capable of determining the geographical location of the Defendant.
. . . .
E. Defendants are unable to go swimming or in a hot tub. If it were to become necessary for purposes of physical therapy that the Defendant receive whirlpool therapy or ther-
apy within a swimming pool it would be necessary on each occasion for the Defendant to have the probation officer remove the bracelet and reattach it after the therapy was complete. The same would be true with MRI‘s or other medical devices. F. Because the equipment cannot pass security, the Defendants could not fly on a commercial airline. Because the equipment is on constantly and would interfere with important radio transmissions Defendants would not be able to fly on private airplanes.
G. At least once a day for a 4 to 6 hour period the MTD must be recharged in a device which is attached to an electrical outlet and the Defendant must remain in the vicinity of that device for the whole period of recharging.
H. While the Defendant is within the purview of the public the MTD must be worn by the Defendant on a place that is open and in plain view of everyone. The MTD is approximately 4½ inches x 2 inches x 3 inches for the current MTD. The new MTD to be put in use by the State is of slightly different dimensions. Therefore, anyone of the public who knew what the equipment was would know that the Defendant had been convicted or pled guilty to a sex offense. The MTD may not be covered with clothing or anything else.
In a finding of fact challenged by the State, the trial court further found that:
D. Each Defendant must wear on their ankle a plainly visible bracelet and must be within two or three feet of a miniature tracking device (hereinafter called MTD) (the one exception to this is that if the MTD is placed in a stable position such as on a table the State would only be notified if the Defendant was more than 30 feet from the MTD which the State is going to use within the next 60 days [within 50 feet with the MTD currently used]) (the 30 feet or 50 feet above stated might be a smaller distance depending upon the configuration of the walls of a building in which the Defendant may be present). As a practical matter the Court finds that the limitations thus stated severely limits [sic] the Defendant‘s ability to be present in certain types
of buildings; as an example: If a Defendant attended a movie in a modern, multiplex theater it would be necessary for the Defendant to place the MTD on a stable surface in order to avoid the State notifying him that he must constantly leave the building. However, if the Defendant found it necessary to go more than 30 feet away from the MTD to purchase a refreshment, go to the restroom or for some other purpose the connection would be broken and it would be necessary for him to leave the theater until the connection was reconnected and therefore in all probability to purchase a new ticket to complete viewing the movie or to explain the circumstances to the movie personnel. The net result of this would be that the Defendant would not be able to go to a movie in a multiplex theater. Likewise, it would be impractical for Defendants to maintain employment that required them to be within a building and to move more than 30 feet from a fixed position.
This finding is based in large part on testimony offered by DCC personnel tasked by the DOC with implementation of the SBM program, much of which is recited by the majority opinion. As the testimony easily meets our standard of “competent evidence,” State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (citation and internal quotation marks omitted), it should likewise be binding on this Court.
The majority concedes that the SBM program “may render more difficult or prohibit” activities including “bathing, swimming, scuba diving, camping in rural areas, and travel by airplane,” yet concludes that these “interferences” are nonpunitive when compared to the restrictions at issue “in occupational debarment cases or in [Kansas v.] Hendricks.”10 However, this analogy is false, as it misapplies the analytical framework outlined by the Supreme Court in Mendoza-Martinez and Smith. In those cases, as Hendricks, the Supreme Court evaluated each factor individually—noting, for example, that the civil commitment scheme in Hendricks “does involve an affirmative restraint,” 521 U.S. at 363, 138 L. Ed. 2d at 516 (emphasis
The balance of the Mendoza-Martinez factors should guide courts in determining if a statute‘s effects are punitive in spite of its stated regulatory intent. Three factors determine the nature of these effects: “whether, in its necessary operation, [it]: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; [or] promotes the traditional aims of punishment.” Smith, 538 U.S. at 97, 155 L. Ed. 2d at 180. Again, from the DCC testimony offered at the hearings and the findings of fact binding on this Court on appeal, the trial court‘s conclusion is well supported that the SBM program “is much more similar to electronic house arrest than it is to registration particularly in that sex registration does not require monitoring by anyone nor does it require a waiver of 4th Amendment rights where electronic house arrest implicitly or impliedly includes both.”
Taken together, the findings of fact and the DCC testimony clearly demonstrate that both supervised and unsupervised enrollees in the SBM program are subject to regular, intrusive disruptions in their lives by the State. Moreover, they are exposed to a distinct likelihood of public shame, humiliation, and ostracism because of the visibility of the equipment.12 When asked the difference between the
Enrollees are constrained in the type of jobs they may hold; even if the DCC maintains that its staff “attempts ‘to work with [offenders] and get their cooperation to make it as easy and frustrating-free as possible,’ ” such assistance is entirely at the discretion of DCC personnel. In fact, Hannah Roland testified that there are “no written guidelines” on “whether or not an offender can be worked with [regarding] a particular job they have” and such decisions are in the
The DCC employees acknowledged both the limitations of the tracking equipment and their susceptibility to disruptive “lost signal” alarms, often triggered when an enrollee is in a building such as one with “a lot of steel.” Lori Anderson testified that the “majority types of problems” relate to “the larger the building, the larger the facility, whichever it may be, the farther, deeper that the offender gets into the facility” and conceded that enrollees employed as janitors or parking deck attendants would be likely to encounter issues with the equipment losing its GPS signal. The DCC policy is written such that the MTD cannot be “covered” or “hidden,” prohibiting offenders even from “put[ting] [a coat] over” the MTD when “it‘s cold and winter” or “raining,” yet enrollees are required to go outside immediately upon losing a signal and wait until the signal is restored. Todd Carter admitted that he has had “clients” who had to “stand outside in the elements” while waiting to regain a signal, including on holidays and during family gatherings.
Given that the SBM program does not effectively protect our children from prospective harm, its restrictions and infringements on enrollees’ liberty interests appear only to be retributive and deterrent in purpose and effect, two traditional aims of punishment.14 In particular, as found by the trial court, the requirement that enrollees, both supervised and unsupervised, allow DOC employees into their
I. It is required of each Defendant (or the Defendant would be guilty of a Class 1 misdemeanor) that he allow a probation officer or officers access to his residence for purpose of checking and maintaining the equipment and that he therefore waive his 4th Amendment rights.
The SBM program “requirements” form that supervised enrollees must sign, and the “maintenance agreement” that unsupervised enrollees must sign, both provide for this regular maintenance. Both also state that even if an enrollee refuses to sign the agreement, “these requirements are still in effect.”
Unlike the majority, I would not characterize these forms as “an agreement signed by SBM participants when monitoring begins.” Nor should their acquiescence to this required entry be considered a voluntary waiver of their Fourth Amendment rights, because apparently consent will be implied even if they do not agree, and they are subject to criminal penalties if they refuse. The majority opinion brushes aside these constitutional concerns, maintaining that this requirement is “dissimilar from a parole or probation setting” and acceptable because the purpose is for maintenance on property owned by the State, rather than to supervise or investigate an enrollee. This explanation does not adequately justify such constant intrusion on and monitoring of someone who is not on probation or parole.15
When weighed against its almost complete lack of efficacy in furthering the purpose of protecting our children, the intrusions of the SBM program become punitive in effect. The physical and practical realities of the SBM program—the size and weight of the ankle bracelet and MTD, the requirement to remain in one place for six hours for daily recharging, the degree to which SBM interferes with everyday work and recreation activities, the degree to which the program impedes enrollees’ freedom of travel, and its invasive requirement for consent to enter an enrollee‘s home—transform the effect of the scheme from regulatory to punitive. This is particularly true for those enrollees who are “unsupervised,” meaning that they have completed their prison sentences and any post-release supervision ordered by the court.17 Whereas “supervised” enrollees remain on probation and, as such, are already subject to many of the provisions mandated under the SBM program,18 “unsupervised” enrollees have fully paid their debt to society yet continue to be monitored by the State, twenty-four hours a day, seven days a week.
Thus, I conclude that, applying the Mendoza-Martinez factors, the SBM program is excessively intrusive in light of its minimal efficacy in advancing its nonpunitive purpose. As such, this SBM program is punitive in effect and should not be applied retroactively. I observe, too, that a number of other state supreme courts have reached a similar conclusion, both regarding GPS monitoring as well as more stringent registration requirements for sex offenders that do not implicate the type of Fourth Amendment issues present here. See, e.g., Wallace, 905 N.E.2d at 384 (concluding that the sex offender registration scheme “imposes burdens that have the effect of adding punishment beyond that which could have been imposed when [a] crime was committed” and that the program cannot be retroactively applied); Letalien, 2009 ME 130, ¶ 62, 985 A.2d at 26 (finding a life-
I conclude only that the retroactive application of these statutes violates the ex post facto clauses of our state and federal constitutions and would therefore prohibit their application solely to those sex offenders who committed their offenses before the effective date of the statute. I respectfully dissent.
Chief Justice PARKER and Justice TIMMONS-GOODSON join in this dissenting opinion.
Notes
Id. (internal citations omitted). For that reason, Grady concludes that “[c]urrent laws . . . do nothing to protect the nearly half of child sexual crime victims who are living in the same home as their perpetrator.” Id. The SBM program does nothing to mitigate these real risks.[N]early 97% of all sexual crimes against children under the age of 5 are committed by either a relative (48.6%) or someone the victim knows (48.3%) and for children ages 6 to 11 who were sexually assaulted, 42% of their perpetrators were relatives and 52.9% were acquaintances. Those percentages only begin to change slightly with age, with studies showing that as individuals get older, they are more likely to be assaulted by a stranger.
Tragically, law enforcement authorities in at least one other state have been forced to confront this very problem. See Eliott C. McLaughlin & Patrick Oppmann, Sex offender kills teen while under GPS monitoring, police say, CNN.com (Mar. 12, 2009), http://articles.cnn.com/2009-03-12/justice/sex.offender.gps_1_gps-monitoring-offender-death-penalty-arguments?_s=PM:CRIME (recounting the story of a thirteen-year-old Washington State girl killed in a field by a sex offender wearing a GPS monitoring device).
Id. (citingIn the system usually used in North Carolina, the monitoring device is a transmitter attached to the probationer‘s ankle. The transmitter has a battery life of approximately ninety days. It transmits a continuous signal to a receiver that is installed in the probationer‘s home, plugged into the electric power and telephone lines. As long as the probationer is within range of the receiver, the system is passive. If the probationer steps beyond the transmitter‘s range, the receiver initiates a call from the probationer‘s home over existing telephone lines to a host computer located in the Department of Correction‘s monitoring center in Raleigh. The computer then records the date and the exact time that the signal was absent from the offender‘s transmitter. When the receiver obtains a signal from the transmitter indicating that the offender is again within range, another call is made to the host computer indicating the time that the signal resumed. In addition to active calls, the system makes routine calls approximately every four hours to see that the system is operating correctly and that the offender has not tampered with the equipment. The system operates at all hours throughout the period of electronic house arrest.
The sex offender registry cases cited by the majority do not allow the State to enter the convicted offender‘s home on a regular, warrantless basis, but instead addressed only the right to privacy with respect to dissemination of the offender‘s name, address, and other identifying information. Russell v. Gregoire, 124 F.3d 1079, 1093 (9th Cir. 1997), cert. denied, 523 U.S. 1007, 140 L. Ed. 2d 321 (1998); see also State v. Bryant, 359 N.C. 554, 568, 614 S.E.2d 479, 488 (2005) (finding that the “defendant had actual notice of his lifelong duty to register with the State of South Carolina as a convicted sex offender” and thus, suffered no due process violation).
Furthermore, the majority also relies on cases in which the defendant in question remains in prison. Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003) (per curiam);
Prosecutor, Marion Cty., Ind., 566 F. Supp. 2d at 887 (citations omitted). Likewise, in his dissent from the Sixth Circuit‘s denial of the defendant‘s petition for rehearing en banc in Doe v. Bredesen, Judge Damon Keith observed, “We must be careful, in our rush to condemn one of the most despicable crimes in our society, not to undermine the freedom and constitutional rights that make our nation great.” 521 F.3d at 681.As heinous as sex and violent crimes are, many other crimes are also threats to our Nation. The social contract reflected in our Constitution imposes limits on law enforcement to protect liberty and privacy. Americans invest a significant portion of public resources to promote social peace and safety. But our founders drew a clear line, based on observed and experienced abuses, on the government‘s ability to invade fundamentally personal areas. To enter the homes of or to search the personal effects, papers, and bodies of persons in the general population, public officials must have cause to believe that they will find evidence of a crime. It is almost always possible to characterize the Fourth Amendment as an inconvenience to law enforcement officials as they carry out their vital duties. That inconvenience, however, is one of the fundamental protections that separates the United States of America from totalitarian regimes. The right to feel safe and secure in one‘s own home, person, and belongings is central to our way of life.