Sex Offender Registration and Monitoring

Public Defender Conference

May 15, 2008

Jamie Markham

Assistant Professor, School of Government

919.843.3914,

CONTENTS

  1. Sex Offender Registration
  2. Satellite-Based Monitoring
  3. Criminal Offenses Related to Registration and Monitoring
  4. Potential Future Regulation: SORNA (part of the Adam Walsh Act)
  5. Constitutional Issues
  1. Sex Offender Registration
  1. Registration is only required for Reportable Convictions, defined in 14-208.6(4) to include:
  2. Sexually Violent Offenses (14-208.6(5)) and Offenses Against a Minor (14-208.6(1i))
  3. See flow chart for a complete list of crimes and effective dates, including effective dates for inchoate offenses
  4. Aiding and abetting these crimes is reportable only if the court finds, pursuant to 14-208.6(4)(a), that registration furthers the purposes of Article 27A
  5. Secretly Peeping,in certain circumstances (14-208.6(4)(d))
  6. Second or subsequent conviction for misdemeanor peeping offenses only if court orders registration under 14-202(l)
  7. Conviction for felony peeping offenses only if court ordersregistration under 14-202(l)
  8. Inchoate peeping crimes and aiding & abetting peeping are not reportable
  9. Federal Crimes:
  10. Reportable if “substantially similar” to a North Carolina Offense against a Minor or Sexually Violent Offense.
  11. Crimes from other States:
  12. Reportable if “substantially similar” to a North Carolina Offense against a Minor or Sexually Violent Offense
  13. Also, any conviction from another state for which that state requires registration (regardless of whether N.C. requires registration when that crime is committed here) is reportable here. Applies only to offenses committed on or after December 1, 2006, or to persons who move to N.C. after that date.
  1. The following groups of people with reportable convictions must register:
  2. Adults who are state residents
  3. Juveniles transferred to and convicted in Superior Court (14-208.6B) for Sexually Violent Offenses and Offenses against a Minor (not Peeping)
  4. Nonresident students (enrolled in any type of school in N.C. on a part-time or full-time basis) and nonresident workers (employment in N.C. on part-time or full-time basis, with or without pay, for more than 14 days, or for an aggregate of 30 days in a calendar year) with a reportable conviction in N.C., or who are required to register in their state of residency, must also register in N.C. (14-208.7(a1) and (a2)). Applies to offenses committed on/after Oct. 1, 2001.
  1. Selected non-reportable offenses
  2. Note: some of these offenses may become reportable retroactively under state laws enacted in the next 2–3 years pursuant to new federal mandates.
  3. Crime against nature (14-177)
  4. Statutory rape or sexual offense of a person who is 13-15 by a defendant who is more than 4 but less than 6 years older than the person (14-27.7A(b))
  5. Kidnapping other than of a minor (14-39)
  6. Human trafficking (14-43.11)
  7. Involuntary servitude (14-43.12)
  8. Misdemeanor indecent exposure (14-190.9(a))
  9. Indecent liberties by school personnel with student (14-202.4)
  10. Prostitution (14-204)
  11. Loitering for purpose of prostitution or crime against nature (14-204.1)
  12. Crimes such as failure to register or failure to enroll in monitoring are not reportable
  1. “Regular Offenders”: 10-year registration
  2. 14-208.7(a): Registration shall be maintained for a period of at least 10 years following the date of initial county registration
  3. Previously, registration ended automatically after 10 years. Now, offenders may petition for deregistration 10 years from the date on which they were first required to register. Under 14-208.12A, the court may terminate the requirement to register if:
  4. The offender can show that since completing his or her sentence he or shehas not been arrested for any reportable offense
  5. Use of the term “arrested”—instead of convicted, or even charged—is unusual in this context; perhaps use of “arrested” was intended to cover registrants who might have a pending charge for a reportable offense at the time of their petition for deregistration
  6. Termination complies with the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State (note: the statute does not place the burden to show this element on the offender)
  7. The Adam Walsh Act (discussed in greater detail below in Potential Future Regulation) was signed into law on July 27, 2006, and provides in 42 U.S.C. § 16915(a) that the minimum registration period for certain offenders is 15 years (reducible to 10 years if the offender has a clean record and completes appropriate treatment). In some counties, the State is arguing that 15-year minimum is already in place (even though the General Assembly has not enacted legislation pursuant to the Adam Walsh Act), because 14-208.12A(a1)(2) effectively incorporates all federal requirements into state law. Because states are not required to enact legislation substantially implementing the Act until July 27, 2009, and may receive up to two 1-year extensions of the implementation deadline, these federal standards are arguably not yet applicable to the states. Moreover, the U.S. Justice Department has yet to issue final guidelines pursuant to the Act. See
  1. This blanket incorporation of current and future federal law and standards into North Carolina’s registration regime is unusual. It seemingly requires the court to apply federal law regardless of whether the General Assembly has enacted state law pursuant to federal mandates.Generally, adoption by a state statute of prospective federal legislation, or federal administrative rules yet to be passed, constitutes an unconstitutional delegation of state legislative power. See, e.g., Hutchins v. Mayo, 197 So. 495 (Fla. 1940) (holding that a state statute providing that fruit should be graded according to standards “as now fixed by the United States Department of Agriculture, or as standards may hereinafter be modified or changed,” unlawfully delegated state legislative power to a federal agency); Plastic Pipe & Fittings Ass’n v. Cal. Bldg. Stds. Comm’n, 22 Cal. Rptr. 3d 393 (Cal. App. 2004).
  2. That the court is otherwise satisfied that the offender is not a current or potential threat to public safety
  1. The DA must be notified at least 3 weeks prior to the hearing and may present evidence in opposition to the requested relief.
  2. If the court denies the petition, the offender may petition again 1 year from the date of denial.
  1. Lifetime registration for certain offenders and offenses
  2. 14-208.23 requires lifetime registration for Sexually Violent Predators, Recidivists, and Aggravated Offenders. These elevated categories of registration were enacted in 2001 pursuant to mandates from federal law, which conditioned a portion of federal grant money on state adoption of the requirement to have lifetime registration for certain serious offenders. Only offenses committed after October 1, 2001, can trigger lifetime registration. S.L. 2001-373.
  3. Sexually Violent Predator (SVP):Rarely used. There are currently 8 SVPs in N.C. 14-208.20 sets out the procedure through which one can be classified as a SVP under the definition set out in 14-208.6(6).
  4. Aggravated Offense: Reportable offenses with a sexual act involving:
  5. Vaginal, anal, or oral penetration through force or the threat of serious violence with a victim of any age; or
  6. Vaginal, anal, or oral penetration with a victim less than 12
  7. Recidivist: person with a prior conviction for an offense described in 14-208.6(4) (i.e., a reportable offense).
  8. For lifetime registration purposes, the statute does not state who determines when an offender is a recidivist or an aggravated offender. As of 2007, the court must make this determination for satellite-based monitoring purposes (discussed in detail below), and that determination presumably controls for registration purposes as well. Prior to 2007, this determination was made by DOC or by the sheriff when the offender registered, leading to variable outcomes.
  9. See additional discussion below on issues related to aggravated offenses and recidivism in the context of satellite-based monitoring (SBM).
  1. Restrictions applicable to all registrants
  2. Residential Restrictions (14-208.16, enacted by S.L. 2006-247, with effective dates set forth in § 11(c) of that act)
  3. An offender required to register shall not knowingly reside within 1,000 feet of any school (does not include home schools or institutions of higher education) or child care center (defined by G.S. 110-86(3) as a location where, at any one time, there are 3 or more preschool-age children, or 9 or more school-age children receiving child care).
  4. Residency restrictions became effective Dec. 1, 2006, and apply to all offenders registered or required to register after that date. The law includes a grandfather clause that excludes from the law’s coverage offenders who established a residence prior to Aug. 16, 2006, by:
  5. Purchasing or entering into a specifically enforceable contract to purchase the residence; or
  6. Entering into a written lease contract for the residence for as long as the offender is lawfully entitled to remain on the premises; or
  7. Residing with an immediate family member (child or sibling 18 or older, parent, grandparent, legal guardian, or spouse of registrant) who established the residence prior to Dec. 1, 2006
  8. The law also exempts changes in ownership or use of property to a school or child care center within 1,000 feet of a registrant’s registered address that occur after a registrant establishes residency
  9. Limits on use of residence:
  10. No person may use his or her residence for child care if a registered offender resides at the location.
  11. Employment Restrictions (14-208.17)
  12. Offenders may not instruct, supervise, or care for a minor, with or without compensation
  13. Offenders may not baby sit (defined in 14-321.1 as providing, for profit, care for a child under 13 who is unrelated to the provider by blood, marriage, or adoption for more than two hours per day while the child’s parent or guardian is not on the premises), and no person may provide a babysitting service in the offender’s home
  1. Satellite-Based Monitoring (SBM)
  1. There are two categories of offenders subject to monitoring (note: SBM is also a mandatory condition of probation and post-release supervision for certain offenders under 15A-1343(b2) and -1368.4(b1)):
  2. Lifetime monitoring (14-208.40(a)(1) and -208.41(a)):
  3. Applies to the same population of offenders subject to lifetime registration (SVP, Aggravated Offenders, Recidivists)
  4. “Conditional monitoring” for a period specified by the court (14-208.40(a)(2) and -208.41(b))
  5. Offenders whose offense is reportable and involved the “physical, mental or sexual abuse of a minor” (an undefined term), AND who require the “highest level of supervision and monitoring” per a DOC risk assessment (STATIC-99), can be ordered by the court to monitoring for a time period specified by the court
  1. Procedure for determining whether an offender is subject to SBM
  2. Determined at sentencing for those sentenced after Dec. 1, 2007 (14-208.40A)
  3. For defendants convicted of a reportable offense and sentenced after Dec. 1, 2007, the sentencing judge considers “evidence that (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, or (iv) the offense involved the physical, mental, or sexual abuse of a minor. 14-208.40A(a).
  4. If the offender is in categories (i)–(iii), the court shall order SBM for life.
  5. If the offender is in category (iv), the court shall order DOC to complete a risk assessment on the offender within 30 to 60 days (DOC may have already completed an assessment), and shall then determine, “based on the Department’s risk assessment,” whether the offender requires “the highest possible level of supervision and monitoring.” If so, the court shall order the offender to enroll in SBM for a period of time specified by the court.
  1. “Bring-back” hearings (14-208.40B) (effective date issues discussed below)
  2. “When an offender is convicted of a reportable conviction . . . and there has been no determination by a court on whether the offender shall be required to enroll in SBM . . . . [DOC] shall make in initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a). [If so,] the DOC shall schedule a hearing in the court of the county in which the offender resides. . . . At the hearing, the court shall determine if the offender falls into one of the categories described in G.S. 14-208.40(a). The court shall hold the hearing and make findings of fact pursuant to G.S. 14-208.40A.”
  3. DOC must notify offenders of its initial determination and the date of the scheduled hearing by “certified mail,” and the hearing shall be scheduled no sooner than 15 days from the date notification is mailed. 14-208.40B(b).
  4. The proper venue for the hearing is the person’s county of residence.
  5. The bring-back hearing statute does not articulate a burden of proof.
  6. The bring-back hearing statute does not articulate a right to counsel.
  7. The bring-back hearing statute does not provide for appeal, nor does it say whether monitoring is stayed during the pendency of an appeal. By way of comparison, under 15A-1451(a)(4), probation is stayed pending appeal by a defendant. Rule 8 of the Rules of Appellate Procedure suggests that in a civil appeal, the appellant could apply to the trial court for a stay of the order, or, in certain circumstances, could apply to the court of appeals for a writ of supersedeas.
  1. Issues related to satellite-based monitoring
  2. Effective dates
  3. Only those with reportable convictions are subject to monitoring. Use the effective dates for reportability listed on the flow chart.
  4. Aggravated Offenses:
  5. Only offenses committed on or after October 1, 2001, can be Aggravated Offenses for SBM purposes. S.L. 2001-373.
  6. Recidivists:
  7. The definition of Recidivist set out in S.L. 2001-373 (“[A] person who has a prior conviction for an offense that is described in G.S. 14-208.6(4)”) was made effective for offenses committed after October 1, 2001. At a minimum, then, the offender’s second or subsequent offense must have occurred after that date.
  8. What is less clear is the relevant date for the earlier offense. DOC interprets the law to mean the earlier offense counts regardless of how far back in time it occurred. There’s an argument, however, that because the definition of recidivist refers to 14-208.6(4)—the definition of reportable conviction—to describe prior offenses, that those offenses must themselves have been reportable.
  9. The 2006 law that first enacted SBM (S.L. 2006-247, § 15(l)) applied to:
  10. Offenses committed on or after August 16, 2006, and
  11. Any person sentenced to intermediate punishment on or after August 16, 2006, and
  12. Any person released from prison by parole or post-release supervision on or after August 16, 2006, and
  13. Any person who “completes his or her sentence” on or after August 16, 2006, who is not on post-release supervision or parole
  14. “Completes his or her sentence” is arguably broad enough to encompass any sentence—probationary or active. In context, however, this provision was probably meant to refer to active sentences only, and that is how DOC currently interprets it.
  15. The 2007 law that set out the hearing procedure (S.L. 2007-213, effective dates amended by a technical corrections act, S.L. 2007-484, § 42(b)) is effective as follows:
  16. Section 2 of the law, which set out the prospective sentencing procedure under 14-208.40A, was made effective December 1, 2007, and “applies to sentences entered on or after that date.”
  17. Section 3 of the law, which set out the bring-back procedure under 14-208.40B, was simply made “effective December 1, 2007.” Although the session law does not state to whom the law applies and does not mention retroactivity, the likely intent was to provide a hearing to the same population covered by the 2006 legislation.
  18. Nevertheless, at least four superior court judges have read the bring-back procedure to apply only prospectively, based on the following rationales:
  19. One judge read the statute to apply only to offenses committed after August 16, 2006, the date the 2006 law was signed into law, based on the present tense language of G.S. 14-208.40, which states that the program is designed to monitor “Any offender who is convicted of a reportable conviction . . . .” Adopting an interpretation that avoided constitutional problems (and citing Anderson v. Assimos, 356 N.C. 415 (2002), as the basis for this rule of construction), the court read the statute in a way that avoided retroactive application to an offender who seemingly fell within the effective dates set forth in the 2006 legislation by virtue of his date of release from prison
  20. Other judges read the bring-back procedure to apply only to offenses committed after December 1, 2007—the effective date of the 2007 legislation—because the General Assembly made no mention of retroactive application in the enacting language for the bring-back hearing procedure in 14-208.40B (S.L. 2007-484, § 42(b))
  1. Aggravated Offenses: Elements or Facts?
  2. To determine if an act involved vaginal, anal, or oral penetration through the use of force or the threat of serious violence, or with a victim under 12, may the court look at the elements of the offense for which the defendant was convicted, or the specific facts of the acts committed by the defendant?
  3. Use of the term “evidence” in 14-208.40A/B suggests the General Assembly intended for the court to make a determination based on the facts of what actually happened.
  4. On the other hand, those statutory sections also use the phrase “conviction offense was an aggravated offense,” suggesting an approach based on the ultimate conviction, not based on initial charges or underlying facts.
  5. One state court has reached the issue and adopted an offense definition–based approach. State v. Mastne, 725 N.W.2d 863 (Neb. Ct. App. 2006).
  6. In the federal context, the United States Supreme Court has repeatedly adopted a “categorical” approach to evaluation of prior crimes for sentence enhancement purposes, stating that the trial court should look only at the statutory definition of a prior offense and not the facts underlying the conviction when determining whether a prior offense triggers an enhanced sentence under the Federal Sentencing Guidelines. Taylor v. United States, 495 U.S. 575 (1990); James v. United States, 127 S. Ct. 1586 (2007).
  7. Cf.Shepard v. United States, 544 U.S. 13 (2005) (holding that when it is unclear whether a prior state offense triggers an enhanced federal sentence based on its elements alone, the court may look at a transcript of a plea colloquy, a written plea agreement, charging documents, or jury instructions, but may not look at police records).
  8. What constitutes vaginal, anal, or oral penetration is not entirely clear, as the aggravated offense definition—which derives from federal mandates—does not dovetail with the definition of “sexual act” used elsewhere in North Carolina law. The federal criminal statutes referred to in the guidelines interpreting the related federal laws, 18 U.S.C. §§ 2241 and 2246, suggest that penetration crimes would be limited to genital-genital, genital-anal, and genital-oral contacts, in addition to anal or genital penetration by a hand, finger, or any object. This may exclude something like a “French kiss” from the definition of “oral penetration.”
  1. Issues associated with “Conditional” Offenders
  2. Risk assessment (STATIC-99)
  3. There is a discrepancy between the language used in 14-208.40(a)(2)(iv) and the language in 14-208.40A(e) & .40B(c). The former provision suggests that only an offender who “requires the highest possible level of supervision and monitoring,” i.e., scores “HIGH” on the STATIC-99, can be subjected to SBM for a period of years. The latter provisions say the court determines, “based on the DOC’s risk assessment,” if an offender requires the highest level of monitoring.
  4. Some judges have interpreted the language in the latter provisions to mean that even an offender who scores LOW or MODERATE risk on the STATIC-99 can be subjected to SBM for a period of years. DOC interpreted the statute to mean that only offenders who scored HIGH could be ordered to conditional monitoring.
  5. The STATIC-99 inapplicable to women (see Equal Protection)
  6. Length of monitoring requirement for “Conditionals”
  7. Based on 14-208.40(a)(2)(ii) (“is required to register under Part 2 of Article 27A . . .”) and 14-208.43(d1) (if “the offender has been released . . . from the requirement to register . . . upon request of the offender, the [Parole] Commission shall order the termination of the monitoring requirement”), conditional monitoring should not be ordered for a period of time in excess of the time an offender is required to register.
  8. Some judges have ordered conditional monitoring for a span of years (e.g., 7-10 years). This is probably the functional equivalent of 10 years, as the Parole Commission has no authority to terminate monitoring for conditional offenders per 14-208.43(e).
  1. Notice
  2. 14-208.40B states that DOC must “notify the offender of . . . the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14-208.7,” and that the “hearing shall be scheduled no sooner than 15 days from the date the notification is mailed.”
  3. At 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.
  1. Venue
  2. At least one judge has ruled that he lacked jurisdiction to hold a bring-back hearing when the State failed to establish that the hearing was being held in the offender’s county of residence.
  3. Technically, improper venue does not deprive a court of jurisdiction State v. Carter, 96 N.C. App. 611 (1989) (improper venue a waivable error)
  1. Restrictions on offenders subject to monitoring (DCC-44 [supervised offenders] and DCC-45 [unsupervised offenders, a/k/a “Trackers”])
  2. Pay a one-time $90 fee
  3. Don’t tamper with the equipment
  4. Provide necessary information to DCC
  5. Wear an ankle bracelet and Miniature Tracking Device (MTD) 24/7
  6. Charge the MTD for 4 hours each day
  7. Obey messages sent via the MTD; acknowledge them and follow instructions
  8. Maintain a landline phone (with no optional features such as 3-way calling or call waiting for supervised offenders)
  9. Request permission from P.O. to travel out of state (supervised offenders only)
  1. Criminal Offenses Related to Registration and Monitoring