Satellite-Based Monitoring Talking Points Introduction: (1) As of 12/31/08, there was only one North Carolina case addressing satellite-based monitoring. In State v. Wooten, No. COA08-734 (12/16/08), the Court of Appeals held that a trial court has jurisdiction to order an offender serving an active sentence to enroll in satellite-based monitoring upon his release and that a conviction that entered before enactment of the sex offender registry can be used to classify an offender as a recidivist. The Court of Appeals did not rule on the merits of the ex post facto argument raised in the case. The citations which appear for the legal propositions stated below are not satellite-based monitoring cases, with the exception of Doe v. Bredesen, 507 F.3d 998 (6 th Cir. 2007), rehearing denied, rehearing en banc denied, 521 F.3d 680 (6 th Cir. 2008). They are cited to support the general legal propositions. (2) Hannah Rowland of the Probation Department is knowledgeable about the Static- 99 test and other aspects of satellite-based monitoring. She can be reached at (919) 716-3811. (3) Distinct arguments can be made based on both the statutes and constitutions. Be sure to cite to both the North Carolina and United States Constitutions. Some constitutional arguments are as applied, while others are facial attacks. Due Process: Sections 14-208.40A and B are void for vagueness and violate due process of law because neither statute articulates a burden of proof to be met by the State or applied by the trial judge. U.S. Const. amends. V, XIV; N.C. Const. art. I, 19; State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998). Sections 14-208.40A and B violate due process because the offender does not receive notice of the evidence to be used against him. U.S. Const. amends. V, XIV; N.C. Const. art. I, 19; State v. Battle, 136 N.C. App. 781, 525 S.E.2d 850 (2000). Sections 14-208.40A and B are void for vagueness because they do not give trial judges sufficiently clear guidelines and definitions by which to interpret and administer the statutes. U.S. Const. amends. V, XIV; N.C. Const. art. I, 19; State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998). Sections 14-208.40A(e) and B(c) are void for vagueness and violate due process because they do not give an offender notice of the factors that may cause the judge to determine that the offender requires the highest level of supervision and monitoring. U.S. Const. amends. V, XIV; N.C. Const. art. I, 19; State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998).
2 Imposition of satellite-based monitoring under 14-208.40A(e) and B(c) on offenders who score low or moderate on the Static-99 risk assessment violates due process as the statutes do not give trial courts sufficiently clear guidelines and definitions by which to interpret and administer the statutes. U.S. Const. amends. V, XIV; N.C. Const. art. I, 19; State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998). Section 14-208.40B offends due process because it does not give an offender the right to present evidence in his own defense. U.S. Const. amends. V, VI, XIV; Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019 (1967); N.C. Const. art. I, 19; State v. Pike, 273 N.C. 102, 159 S.E.2d 334 (1968); State v. Battle, 136 N.C. App. 781, 525 S.E.2d 850 (2000); Godwin v. Walls, 118 N.C. App. 341, 455 S.E.2d 473 (1995). Section 14-208.40B violates due process because it does not provide an offender with the right to counsel. U.S. Const. amends. V, VI, XIV; Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963); N.C. Const. art. I, 19. The imposition of satellite-based monitoring under 14-208.40A(e) or 14-208.40B(b) for an indeterminate term of years violates due process because an offender does not have a right to seek termination of monitoring. U.S. Const. amends. V, XIV; N.C. Const. art. I, 19; State v. Battle, 136 N.C. App. 781, 525 S.E.2d 850 (2000). Only offenders subjected to lifetime satellite-based monitoring make seek termination under 14-208.43(e). The imposition of satellite-based monitoring deprives an offender of his constitutionally protected liberty and privacy interests without due process of law. U.S. Const. amends. V, XIV; N.C. Const. art. I, 19; Wisconsin v. Constantineau, 400 U.S. 433, 437, 27 L. Ed. 2d 515, 519 (1971) ( Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. Posting under the Wisconsin Act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person ). Due Process: Voluntariness of Plea Imposition of satellite-based monitoring following a guilty or no contest plea violates due process if monitoring was not a condition of a plea agreement. U.S. Const. amends. V, VI, XIV; N.C. Const. art. I, 19, 23, 24; N.C. Gen. Stat. 15A-1022; Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427 (1971); Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274 (1969); State v. Rodriquez, 111 N.C. App. 141, 431 S.E.2d 788 (1993); State v. Harris, 14 N.C. App. 268, 188 S.E.2d 1 (1972). If satellite-based monitoring is imposed in derogation of the terms of a plea agreement, the court must allow the defendant to withdraw the plea. N.C.G.S. 15A-1024; State v. Carriker, 180 N.C. App. 470, 637 S.E.2d 557 (2006). Equal Protection:
3 Imposition of satellite-based monitoring for a term of years on male offenders determined to require the highest possible level of supervision and monitoring under 14-208.40A(e) and B(c) violates equal protection because female offenders who commit the same offenses are automatically considered low risk and are therefore not subject to conditional monitoring. U.S. Const. amend. XIV; N.C. Const. art. I, 19; Craig v. Boren, 429 U.S. 190, 50 L.Ed.2d 397 (1976); NC DOC Division of Community Corrections Administrative Memorandum 01.03.12-06 p. 1. Section 14-208.40B violates equal protection because only eligibility determinations held under 14-208.40A grant the offender the right to present evidence. U.S. Const. amend. XIV; N.C. Const. art. I, 19. Section 14-208.40B violates equal protection because only eligibility determinations held under 14-208.40A afford the offenders the right to counsel. U.S. Const. amend. XIV; N.C. Const. art. I, 19. Section 14-208.40B violates equal protection because only eligibility determinations held under 14-208.40A clearly are appealable. U.S. Const. amend. XIV; N.C. Const. art. I, 19; State v. Williams, N.C. App., 660 S.E.2d 200 (2008). Ex Post Facto: A law violates the Ex Post Facto Clauses of U.S. Const. art. I, 10, cl.1 and N.C. Const. art. I, 16 when it inflicts a greater punishment than the law provided at the time the offense was committed. Johnson v. United States, 529 U.S. 694, 699, 146 L.Ed.2d 727, 735 (2000); State v. Mason, 126 N.C. App. 318, 324, 484 S.E.2d 818, 821 (1997), cert. denied, 354 N.C. 72, 553 S.E.2d 208 (2001). To determine if a statute violates the ex post facto guarantees, a court must determine whether the legislation is civil or criminal in nature. If it is criminal, and it inflicts a greater punishment than the law provided at the time the offense was committed, a violation has occurred. If the legislation is civil, but so penal in its operation as to be a criminal statute, a violation has occurred. Factors to consider in determining if a civil statute is punitive in nature include whether the mechanism has historically been considered punishment, whether it imposes an affirmative restraint or disability, whether it serves traditional aims of punishment, whether a rational connection exists to a nonpunitive purpose, whether the mechanism is excessive in relation to its purpose, and the totality of factors. U.S. Const. art. I, 10, cl. 1; N.C. Const. art. I, 16; Smith v. Doe, 538 U.S. 84, 92, 155 L.Ed.2d 164, 176 (2003); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L.Ed.2d 644 (1963). Satellite-based monitoring was intended to operate retroactively, because the enacting legislation stated that it applied not only to offenses committed on or after the enactment date (16 August 2006), but to offenders sentenced to intermediate punishment, released from prison by parole or post-release supervision, or who had completed their sentence but were not on post-release supervision or parole on or after the enactment date. Session
4 Law 2006-247 15(l). As satellite-based monitoring constitutes a punishment, its retroactive character violates the ex post facto guarantees. See Smith v. Doe, 538 U.S. 84, 92, 155 L.Ed.2d 164, 176 (2003). The General Assembly expressly intended that satellite-based monitoring be punitive because the enacting legislation ( 14-208.43(a)) required a trial court ordering an offender to enroll in lifetime monitoring to also place the offender on lifetime probation. Probation is recognized in N.C. Const. art. I, 16 as a form of punishment and has always been judicially construed to constitute punishment. Gall v. United States, 552 U.S., 128 S.Ct. 586, 169 L.Ed.2d (2007); Griffin v. Wisconsin, 483 U.S. 868, 97 L. Ed. 2d 709 (1987). In repealing 14-208.43(a), the Legislature substituted a requirement that the offender cooperate with the Department of Correction during the term of his enrollment. 14-208.42. It is clear under 14-208.42 and the Department of Correction Memoranda governing satellite-based monitoring that cooperation takes the form of lifetime probation. The amendment did not substantively change the nature of the scheme. Cf. State v. Hearst, 356 N.C. 132, 567 S.E.2d 124 (2002) (amendment of IMPACT legislation to substitute residential treatment for confinement did not change the nature of the program; offenders were entitled to pre-sentence confinement credit). The General Assembly expressly intended that the satellite-based monitoring scheme be punitive because 2006 N.C. Sess. Laws ch. 247, House Bill 1896 stated that satellitebased monitoring is an intermediate sanction. As devised, this intermediate sanction operates identically to intermediate punishment under 15A-1340.11(6). Smith v. Doe, 538 U.S. 84, 155 L. Ed. 2d 164 (2003). The General Assembly expressly intended that the satellite-based monitoring scheme be punitive because it selected the Department of Correction, rather than a civil regulatory agency, to devise and supervise the program. U.S. Const. art. I, 10, cl. 1; N.C. Const. art. I, 16; N.C.G.S. 14-208.40(a); Smith v. Doe, 538 U.S. 84, 155 L. Ed. 2d 164 (2003). The General Assembly intended that satellite-based monitoring scheme be punitive as it has never expressly stated that it is civil. Senate Bill 2063, which stated that the satellite-based monitoring program is civil and not punitive in nature has not been considered by the full legislature. U.S. Const. art. I, 10, cl. 1; N.C. Const. art. I, 16; Smith v. Doe, 538 U.S. 84, 155 L.Ed.2d 164 (2003); The satellite-based monitoring scheme is punitive in purpose or effect because it is equivalent to imposition of a shame sanction, which has always been considered punishment. U.S. Const. art. I, 10, cl. 1; N.C. Const. art. I, 16; Smith v. Doe, 538 U.S. 84, 155 L. Ed. 2d 164 (2003); Doe v. Bredesen, 507 F.3d 998 (6th Cir. 2007) (Keith, J., dissenting). The satellite-based monitoring scheme is punitive in purpose or effect because it imposes an affirmative restraint or disability on the offender. U.S. Const. art. I, 10, cl. 1; N.C. Const. art. I, 16; Smith v. Doe, 538 U.S. 84, 155 L. Ed. 2d 164 (2003),
5 The satellite-based monitoring scheme is punitive in purpose or effect because it is intended to have a deterrent effect, which is a traditional aim of punishment. U.S. Const. art. I, 10, cl. 1; N.C. Const. art. I, 16; Smith v. Doe, 538 U.S. 84, 155 L. Ed. 2d 164 (2003); Doe v. Bredesen, 507 F.3d 998 (6th Cir. 2007) (Keith, J., dissenting). The satellite-based monitoring scheme is punitive in purpose or effect because its scope is excessive in relation to its purpose. U.S. Const. art. I, 10, cl. 1; N.C. Const. art. I, 16; Smith v. Doe, 538 U.S. 84, 155 L. Ed. 2d 164 (2003); Doe v. Bredesen, 507 F.3d 998 (6th Cir. 2007) (Keith, J., dissenting). Double Jeopardy: For offenders ordered to enroll in satellite-based monitoring under the bring back statute ( 14-208.40B), imposition of satellite-based monitoring constitutes additional punishment for the same offense in violation of the Double Jeopardy Clause of the United States Constitution and the Law of the Land Clause of the North Carolina Constitution. U.S. Const. amends. V, XIV; N.C. Const. art. I, 19; North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656 (1969); State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954); State v. Johnson, 95 N.C. App. 757, 383 S.E.2d 692 (1989). Right to Counsel: The bring-back statute ( 14-208.40B) violates the Sixth and Fourteenth Amendments to the United States Constitution and article I section 23 of the North Carolina Constitution because it does not provide an offender with the right to counsel. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963). Interstate Travel: Satellite-based monitoring violates an offender s fundamental right to interstate travel because those offenders who signed the original DCC-45 are prohibited from leaving North Carolina. Saenz v. Roe, 526 U.S. 489, 143 L. Ed. 2d 689 (1999); United States v. Guest, 383 U.S. 745, 16 L. Ed. 2d 239 (1966). Satellite-based monitoring violates an offender s fundamental right to interstate travel because the constant transmissions to and from the equipment violate FAA regulations. The Probation Department considers all offenders on satellite-based monitoring as a condition of supervised probation to be high risk and therefore cannot travel out of state except for a medical emergency. Contracts Clause: Imposition of satellite-based monitoring following a guilty or no contest plea that did not contain satellite-based monitoring violates the Contract Clause of the United States
6 Constitution and the Law of the Land Clause of the North Carolina Constitution. U.S. Const. art. I, 10, cl. 1; N.C. Const. art. I, 19; United States Trust Co. v. New Jersey, 431 U.S. 1, 52 L. Ed. 2d 92 (1977); State v. Rodriguez, 111 N.C. App. 141, 431 S.E.2d 788 (1993). Separation of Powers: If satellite-based monitoring is imposed in derogation of a plea agreement, the General Assembly will have deprived the judicial department of its power to accept and approve plea agreements in violation of state principles of separation of powers. N.C. Const. Art. V, 1; State v. Zdep, (03CRS69773). Right to Jury Determination: If satellite-based monitoring constitutes a punishment, a jury must determine whether the offender falls within an eligible category, as that constitutes a finding of an element of the offense. U.S. Const. amends. VI, XIV; N.C. Const. art. I, 19, 23, 24; Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004); State v. Hurt, 361 N.C. 325, 643 S.E.2d 915 (2007). Eligibility Determination at Time of Sentencing ( 14-208.40A): Under 14-208.40A, the judge must make written findings of fact as to whether the offender falls into one of the categories listed under 14-208.40(a). N.C.G.S. 14-208.40A(b); In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007); Sain v. Sain, 134 N.C. App. 460, 517 S.E.2d 921 (1999) (mandating that the "trial court must enter written findings of fact" when the controlling statute only required that "the court shall make findings of fact"). Bring Back Statute ( 14-208.40B): If no judicial determination of eligibility has been made, the Department of Correction must make an initial determination that the offender falls into one of the 14-208.40(a) categories. 14-208.40B(a). Proceedings are initiated by the Department of Correction by notice sent by certified mail to the address provided the sex offender registry. 14-208.40B(b). If the Department fails to notify the offender of a bring-back hearing by certified mail sent to the address provided by the offender to the registry, the trial court lacks jurisdiction to hold the bringback hearing. See Jamie Markham, Sex Offender Registration and Monitoring p. 9 ( [a]t least two judges have ruled that the failure by the state to provide evidence that the Department complied with these notification requirements deprived the court of jurisdiction to hold the bring-back hearing ). Section 14-208.40B(b) violates due process by failing to require the Department to notify the defendant of the category it contends the defendant falls within to be eligible for
7 satellite-based monitoring. Notice is required to enable the defendant to present a defense. U.S. Const. amends. V, IX; N.C. Const. art. I, 19; State v. Battle, 136 N.C. App. 781, 525 S.E.2d 850 (2000). The hearing cannot be held less than 15 days from the date the notification was mailed. See Jamie Markham, Sex Offender Registration and Monitoring p. 9 ( [a]t least two judges have ruled that the failure by the state to provide evidence that the Department complied with these notification requirements deprived the court of jurisdiction to hold the bring-back hearing ); N.C.G.S. 14-208.40B(b). Under 14-208.40B(c), the court must make written findings of fact as to whether the offender falls into one of the categories listed under section 14-208.40(a). See In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007); Sain v. Sain, 134 N.C. App. 460, 517 S.E.2d 921 (1999) (mandating that the "trial court must enter written findings of fact" when the controlling statute only required that "the court shall make findings of fact"). 14-208.40B is unconstitutional on its face for failing to provide for the appointment of counsel, the right to present evidence, and right to appeal and failing to specify the burden of proof. Aggravated Offense: Only offenses committed on or after 1 October 2001 qualify as aggravated offenses for purposes of sections 14-208.40A and 14-208.40B. 2001 N.C. Sess. Laws ch. 373, Senate Bill 936. In determining whether an offense was an aggravated offense, the court should look only to the elements of that offense, not to the facts of the crime. Taylor v. United States, 495 U.S. 575 (1990); State v. Mastne, 725 N.W.2d 863 (Neb. Ct. App. 2006); N.C.G.S. 14-208.40A(b), 14-208.40B(c) ( the conviction offense was an aggravated offense ). Recidivist: Under the bring-back statute ( 14-208.40B), the offense resulting in the second or subsequent conviction must have been committed after 1 December 2007, the effective date of the statute. 2007 N.C. Sess. Laws ch. 213, 3; 2007 N.C. Sess. Laws ch. 484, 42(b); In re McKoy, 08CRS5472 (Judge Ripley E. Rand); In re Coe, 05CRS34629 (Judge Ripley E. Rand); In re Reeves, (Judge R. Allen Baddour). Sexually Violent Predator: An offender must already have been determined to be a sexually violent predator prior to the satellite-based monitoring hearing; the judge in a satellite-based monitoring hearing does not have authority to make that determination in the first instance. N.C.G.S. 14-208.40A(b), (c), 14-208.40B(c) ( the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20 ).
8 The district attorney is to decide whether to seek classification of an offender as a sexually violent predator and file notice of intent by the time of pre-trial motions. Additional time may be granted upon a showing of good cause. 14-208.20(a). One could argue that courts have the power to prohibit the State from proceeding as a sanction for late filing. Section 14-208.6(6) defining sexually violent predator is void for vagueness. The term mental abnormality is undefined. The DSM does not provide that persons with a particular personality disorder are more likely to engage in sexually violent offenses directed at strangers. The term strangers is also undefined. Section 14-208/21(b) violates due process by failing to provide the accused with the right to present evidence, be represented by counsel, or be present when a board of experts determines that the offender is a sexually violent predator. U.S. Const. amends. VI, XIV; N.C. Const. art. I, 19, 23. Offense Involving the Physical, Mental, or Sexual Abuse of a Minor: There is no statutory definition of physical, mental, or sexual abuse of a minor. Because a category of offenses labeled sexual, physical, or mental abuse of a minor became effective on 1 December 1996, an offense had to have been committed on or after 1 December 1996 to be used for satellite-based monitoring. In determining whether an offense involved the physical, mental, or sexual abuse of a minor, the court should look only to the elements of that offense, not to the facts of the crime. Taylor v. United States, 495 U.S. 575 (1990); State v. Mastne, 725 N.W.2d 863 (Neb. Ct. App. 2006); N.C.G.S. 14-208.40A(b)(iv), (d), 14-208.40B(c). This is a weaker argument than the same argument under aggravated offense because N.C.G.S. 14-208.40A(b) uses the phrase conviction offense for purposes of an aggravated offense, but simply uses the phrase offense for purposes of an offense involving the physical, mental, or sexual abuse of a minor. If a court finds that the reportable conviction involves the physical, mental, or sexual abuse of a minor and finds that the offense is not an aggravated offense and the offender is not a recidivist, the court must order a risk assessment of the offender by the Department of Correction. The Department of Correction has only thirty to sixty days from the date of the order to complete the risk assessment and report those results to the court. N.C.G.S. 14-208.40(A)(d), 14-208.40B(c). A court has no authority to proceed if the risk assessment and report occurs later than sixty days from the date of the order. The court must determine, based on the risk assessment, that the offender requires the highest possible level of supervision and monitoring. N.C.G.S. 14-208.40(a)(2)(iv), 14-208.40A(e), 14-208.40b(c). An offender must score high on the DOC risk assessment to support a finding that the offender requires the highest possible level of
9 supervision and monitoring, as otherwise the determination would not have been based on the DOC risk assessment. The Department of Correction utilizes the Static-99 test to assess level of risk. It is being administered and scored by people who are not psychologists or counselors. Only an expert witness can testify regarding the interpretation of a Static-99 form. N.C.G.S 8C- 1, Rule 702; State v. Carmon, 156 N.C. App. 235, 243, 576 S.E.2d 730, 736-37 (2003); State v. Bowman, 84 N.C. App. 238, 243-45, 352 S.E.2d 437, 440-41 (1987). A court cannot order an offender to be monitored for a period longer than the offender is required to be registered. N.C.G.S. 14-208.40(a)(2), 14-208.43(d1). A court cannot order an offender to be monitored for an indeterminate term because the Parole Commission has no authority to terminate monitoring for conditional offenders. N.C.G.S. 14-208.43(e). Helpful Rulings: Judge Ripley Rand removed an offender from satellite-based monitoring because offense that triggered a recidivist finding was committed before 1 December 2007. 2007 N.C. Sess. Laws 2007-484, s.42(b). Judge Ripley Rand removed an offender from satellite-based monitoring because his conviction for disseminating harmful material to minors was not a reportable conviction under 14-208.6(4) and thus could not make the offender a recidivist. Judge Allen Baddour removed an offender from satellite-based monitoring on the ground that the triggering offense was committed prior to the effective date of the statute. In subsequent cases, however, Judge Baddour has ordered offender to enroll if the plea entered on or after 1 December 2007, regardless of the date of the offense. Judge Allen Baddour found that the monitoring alarm sounding on occasion without justification and the requirement that the offender respond to directions from the monitoring equipment, such as leaving a building in order to reestablish satellite contact, weighed in favor of finding an affirmative disability or restraint. Judge E. Lynn Johnson read the monitoring scheme to be prospective only in operation, so as to avoid the constitutional questions that had been raised. See Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (courts will avoid constitutional questions when a case may be resolved on other grounds).