Preview:

IN THE SUPREME COURT OF NORTH CAROLINA
No.  448PA09
FILED:  8 OCTOBER  2010
STATE OF NORTH CAROLINA
v.
KENNEY BOWDITCH, KENNETH EDWARD PLEMMONS, and MARK ALLEN WATERS
On discretionary review pursuant to N.C.G.S.  §  7A-31,
prior to a determination by the Court of Appeals, of a memorandum
and order entered  12 June  2009 by Judge Dennis J. Winner in
Superior Court, Buncombe County, allowing defendants’ motions to
dismiss petitions filed by the State to enforce satellite
monitoring provisions on defendants.    Heard in the Supreme Court
10 May  2010.
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” directing the Department of Correction  (DOC) to
establish a continuous satellite-based monitoring  (“SBM”) program
for certain classes of sex offenders.    An Act To Protect North
Carolina’s Children/Sex Offender Law Changes, ch.  247, sec.  15,
2006 N.C. Sess. Laws  1065,  1074-79  (codified as amended at




-2-
N.C.G.S.  §§  14-208.40 to  -208.45  (2009)).    Defendants Kenney
Bowditch, Kenneth Edward Plemmons, and Mark Allen Waters have
each pleaded guilty to multiple counts of taking indecent
liberties with a child.    All of these offenses occurred before
the SBM statutes took effect on  16 August  2006.    Defendants
dispute their eligibility for SBM, arguing that their
participation would violate guarantees against ex post facto laws
contained in the federal and state constitutions.    We hold that
the SBM program at issue was not intended to be criminal
punishment and is not punitive in purpose or effect.    Thus,
subjecting defendants to the SBM program does not violate
constitutional prohibitions against ex post facto laws.
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




-3-
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.
Upon receiving notice of the State’s intention to seek
their enrollment in the SBM program, defendants filed separate
motions on constitutional grounds to dismiss the State’s
petitions for satellite-based monitoring.    After conducting
hearings on  1 May and  28 May  2009, the trial court issued a
memorandum and order on  12 June  2009 making numerous findings of
fact and concluding as a matter of law that  (1) determining
whether an offense is aggravated for purposes of imposing
lifetime satellite-based monitoring is a fact-based, rather than
1
an element-based, inquiry;                                            (2) the legislature  “intended
Satellite monitoring to be criminal punishment”; and  (3) even if
not intended to be punitive, SBM’s purpose and effect, when
analyzed according to the factors enunciated in Kennedy v.
1
The State assigned error to this conclusion of law, but
did not address the issue in its brief.    Thus, under the rules of
appellate procedure applicable to this case, we consider the
assignment of error to be abandoned, and we will not address it.
See N.C. R. App. P.  28(b)(6).




-4-
Mendoza-Martinez,  372 U.S.  144,  168-69  (1963),  “are so punitive
that civil intent is negated.”    The trial court then ruled that
applying SBM to defendants  “would be unconstitutional under the
ex post facto provisions of both the United States and North
Carolina Constitutions.”    As such, the trial court allowed
defendants’ motions and dismissed the State’s petitions.    The
State gave notice of appeal to the Court of Appeals on  23 June
2009.    Defendants then filed a petition with this Court on  27
October  2009 to certify the case for discretionary review prior
to determination by the Court of Appeals.    This Court allowed
defendants’ petition on  18 February  2010 to address the
significant constitutional question at issue.
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 Statues.    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 Roland, who was based in Raleigh,




-5-
testified as the special operations administrator in charge of
the SBM program for sex offenders.
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. N.C.G.S.  §§  14-208.40,  -208.40A,  -
208.40B  (describing when SBM is required at all, when it is
mandatory  “for life,” and when it should be imposed  “for a period
of time to be specified by the court”).
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




-6-
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.    N.C.G.S.  §  14-208.44(b),  (c).
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 work hours for the personnel in Raleigh, local law
enforcement officers are on call to receive and address alerts as
necessary.
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




-7-
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.




-8-
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 DOC.    It is possible,
though, that the GPS signal may be lost in remote areas, and
commercial airplane flight is likely limited due to security
regulations.
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




-9-
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
2
The North Carolina Court of Appeals has already addressed
the present issue, stating that the SBM program does not violate
ex post facto prohibitions in at least eleven unanimous opinions.
State v. Stewart, COA09-928, slip op. at  1  (N.C. App. Mar.  2,
2010)  (unpublished); State v. Murdock, COA09-615, slip op. at  1
(N.C. App. Jan.  19,  2010)  (unpublished); State v. Boothe,
COA09-264, slip op. at  1  (N.C. App. Jan.  5,  2010)  (unpublished);
State v. Lederer-Hughes, COA09-280, slip op. at  1  (N.C. App. Nov.
17,  2009)  (unpublished); State v. Hughes, COA09-288, slip op. at
1  (N.C. App. Nov.  3,  2009)  (unpublished); State v. Miller,
COA09-623, slip op. at  1  (N.C. App. Nov.  3,  2009)  (unpublished);
State v. Downey,  ___ N.C. App.  ___,  683 S.E.2d  791  (2009)
(unpublished); State v. Stines,  ___ N.C. App.  ___,  683 S.E.2d  411
(2009); State v. Chandler, COA08-885, slip op. at  1  (N.C. App.
July  21,  2009)  (unpublished); State v. Anderson,  ___ N.C. App.
___,  679 S.E.2d  165  (2009), and State v. Bare,  ___ N.C. App.  ___,
677 S.E.2d  518  (2009).    Three other panels at the Court of




-10-
The United States and North Carolina Constitutions
prohibit ex post facto laws.    U.S. Const. art. I,  §  10, cl.  1;
N.C. Const. art. I,  §  16.                                              “An ex post facto law may be defined,
as relevant here, as a law that  ‘allows imposition of a different
or greater punishment than was permitted when the crime was
committed.’”    State v. Barnes,  345 N.C.  184,  233-34,  481 S.E.2d
44,  71  (1997)  (quoting State v. Vance,  328 N.C.  613,  620,  403
S.E.2d  495,  500  (1991)), cert. denied,  522 U.S.  876  (1998).
Under this Court’s jurisprudence,  “the federal and state
constitutional ex post facto provisions are evaluated under the
same definition.”    State v. Wiley,  355 N.C.  592,  625,  565 S.E.2d
22,  45  (2002)  (citing State v. Robinson,  335 N.C.  146,  147-48,
436 S.E.2d  125,  126-27  (1993)), cert. denied,  537 U.S.  1117
(2003).
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 Kan. Stat. Ann.  §
59-29a02  (1994)).    In  2003, the Court decided Smith v. Doe, in
which it considered the registration requirements and
notification system of Alaska’s Sex Offender Registration Act.
Appeals have concluded the same, but in divided opinions.    State
v. Vogt,  ___ N.C. App.  ___,  685 S.E.2d  23  (2009)  (Elmore, J.,
dissenting); State v. Morrow,  ___ N.C. App.  ___,  683 S.E.2d  754
(2009)  (Elmore, J., concurring in part and dissenting in part);
State v. Wagoner,  ___ N.C. App.  ___,  683 S.E.2d  391  (2009)
(Elmore, J., dissenting).




-11-
538 U.S.  84,  89-90  (2003).    The Court held in both Smith and
Hendricks that the statutory measures under review did not
violate the Ex Post Facto Clause of the federal constitution.
Smith,  538 U.S. at  105-06; Hendricks,  521 U.S. at  370-71.    Smith
and Hendricks are significant because of their explanation of
controlling ex post facto law and because of their similar
subject matter to the case sub judice.    As further explained
below, many parallels exist between the SBM program at issue and
the regulatory schemes analyzed in Smith and Hendricks.    The
instant case falls within the framework established by those
precedents for civil, regulatory schemes that address the
recidivist tendencies of convicted sex offenders.
An ex post facto analysis begins with determining
whether the express or implicit  “intention of the legislature was
to impose punishment,” and if so,  “that ends the inquiry.”
Smith,  538 U.S. at  92  (citing Hendricks,  521 U.S. at  361).    If
the intention was to enact a civil, regulatory scheme, then by
referring to the factors enunciated in Kennedy v.
Mendoza-Martinez for guidance, we must further examine whether
the statutory scheme is  “so punitive either in purpose or effect
as to negate” the legislature’s civil intent.    Smith,  538 U.S. at
92  (quoting Hendricks,  521 U.S. at  361)  (internal quotation marks
omitted).
The Legislative Objective in Enacting SBM Was Nonpunitve
Our analysis begins with discerning through statutory
construction  “the legislative objective,” id.  (citing Flemming v.
Nestor,  363 U.S.  603,  617  (1960)), whether announced




-12-
“‘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 N.C.G.S.  §  14-208.5, the
legislature did not enact a separate purpose section specific to
SBM.    Nonetheless, several indicators demonstrate that the
legislative objective in enacting SBM was to establish a
nonpunitive, regulatory program.
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).




-13-
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.
N.C.G.S.  §§  14-208.5 to  -208.32  (2009).    Before enactment of the
SBM program, the Supreme Court of the United States had
determined sex offender registration statutes to be civil
regulations, Smith,  538 U.S. at  105-06, and North Carolina
appellate courts had reached the same conclusion, see State v.
Sakobie,  165 N.C. App.  447,  451-52,  598 S.E.2d  615,  617-18
(2004).    Moreover, the legislature’s statement of purpose for
Article  27A, found at section  14-208.5, explains that  “the
purpose of this Article  [is] to assist law enforcement agencies’
efforts to protect communities.”    Understandably, section  14-
208.5 explicitly refers to registration, but the SBM program is
consistent with that section’s express goals of compiling and
fostering the  “exchange of relevant information” concerning sex
offenders.    The decision to codify the SBM statutory scheme in
the same Article and immediately following the registration
programs implies a legislative objective to make the SBM program
one part of a broader regulatory means of confronting the unique
“threat to public safety posed by the recidivist tendencies of
convicted sex offenders.”    Abshire,  363 N.C. at  323,  677 S.E.2d
at  446.
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




-14-
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
opportunities for physical, mental and moral improvement,”
N.C.G.S.  §  148-22(b)  (2009), programs for  “academic and
vocational and technical education,” id.  §  148-22.1(a)  (2009),
and programs providing  “incarcerated offenders a work and
training environment that emulates private industry,” id.  §
148-129(1)  (2009).    Without definitively deciding the nature of
these programs, we note that their existence makes the effect of




-15-
DOC/DCC’s involvement in administrating the SBM program at the
least,  “open to debate.”    Cf. Smith,  538 U.S. at  94-96  (making a
similar conclusion as to the enforcement procedures established
by Alaska’s sex offender registry program).    DOC is responsible
for the administration of criminal punishment, but not everything
DOC handles is therefore punitive.    DOC’s programs retain the
common element of involving accused or convicted criminal
offenders, but that all of DOC’s activities involve criminal
punishment should not be presumed.    SBM participants are
offenders who, at some point in time and for some duration of
time, come under DOC’s authority by virtue of their criminal
convictions.    As a result, utilizing DOC’s administrative and
personnel resources for the SBM program appears to make sound
organizational and fiscal sense.    We cannot agree, as defendants
argue, that  “[h]ad the General Assembly intended SBM to be civil,
it would have entrusted its creation and supervision to a
governmental entity other than DOC.”
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




-16-
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 behavior.  3 See id. at  105; Doe v. Bredesen,  507 F.3d
998,  1004,  1007  (6th Cir.  2007)  (relying on Smith and noting that
the two Mendoza-Martinez factors referenced above  “were not
particularly germane” when testing sex offender registration and
SBM statutes for ex post facto concerns), cert. denied,  ___ U.S.
___,  129 S. Ct.  287  (2008).    Thus, the following five
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.
3
The two factors of only  “little weight,” Smith,  538 U.S.
at  105, are  “whether  [the scheme] comes into play only on a
finding of scienter” and  “whether the behavior to which it
applies is already a crime.”    Mendoza-Martinez,  372 U.S. at  168
(footnotes omitted).    These factors are inconsequential in this
setting because, similar to the sex offender registration law at
issue in Smith, the SBM program applies only to individuals who
have committed crimes in the past.    SBM applies to individuals
based on prior behavior, and its concern is with recidivist
tendencies.    See Smith,  538 U.S. at  105.




-17-
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 criminal punishment.    Griffin v. Wisconsin,  483 U.S.  868,
874  (1987).    There is a level of monitoring that takes place in
the SBM program; however, the difference here is that SBM’s
“surveillance components are not of a type that we have




-18-
traditionally considered as a punishment.”    See Bredesen,  507
F.3d at  1005.    DCC considers some SBM participants to be
supervised but that terminology is used because those offenders
are concurrently serving a period of parole or probation.    DCC
considers other SBM participants who are no longer on parole or
probation to be unsupervised.    The movements of unsupervised SBM
participants are only periodically checked for observable
patterns or proximity to sensitive locations.    Consistent with
the terms of their probation, supervised offenders may be subject
to  “inclusion zones” or  “exclusion zones,” but no such zones are
utilized for unsupervised participants.
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




-19-
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 testimony reflects that
inclusion or exclusion zones are used for participants on
supervised probation as an aid to compliance with their probation
restrictions.    For instance, an individual on probation may be
ordered to attend a treatment center.    Through an inclusion zone
around the treatment center at the appropriate times, SBM may
facilitate the probation officer’s knowledge of whether the
individual attended the treatment session.    Utilizing SBM as a
tool in this capacity does not make it a punishment.
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.




-20-
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




-21-
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  “[i]n its size, shape, and
placement  .  .  . appears very similar to  .  .  . other nondescript
electronic device[s].”                                                   507 F.3d at  1005.    The MTD used for
Tennessee’s SBM program under evaluation in Bredesen was larger
than the MTD in the present case:                                        “6 inches by  3.25 inches by
1.75 inches,” id., compared here to  4.25 inches by  2 inches by  3
inches.    A casual observer could perceive the MTD to be any
number of personal electronic devices, such as a cellular phone,
personal digital assistant  (PDA), or MP3 player.    We cannot
conclude that simply mandating the wearing of the SBM equipment
in public amounts to a form of criminal punishment.
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




-22-
removal from the SBM program.    See N.C.G.S.  §  14-208.43  (enabling
sex offender on lifetime SBM to petition for removal upon meeting
certain conditions).
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)); see also Bredesen,  507 F.3d at  1005  (relying
on Smith to conclude that the effects of Tennessee’s SBM program
were less harsh than occupational debarment).    Occupational
debarment is far more harsh than an SBM program that allows
offenders to choose where they work and what type of occupation




-23-
they pursue.    Hannah Roland testified that DCC makes efforts to
accommodate the employment requirements of SBM participants, when
necessary.    She further stated regarding employment situations
that DCC attempts  “to work with  [offenders] and get their
cooperation to make it as easy and frustrating-free as possible.”
There is no indication in the record that any SBM participant has
been unable to pursue a desired occupation due to SBM.    Cf.
Smith,  538 U.S. at  100  (noting the absence of record evidence
showing any  “substantial occupational or housing disadvantages”
due to sex offender registration).
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




-24-
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 expectation of privacy
under the Fourth Amendment, as do citizens who have not been
convicted of a felony.    See, e.g., Velasquez v. Woods,  329 F.3d
420  (5th Cir.  2003)  (per curiam)  (holding that collecting blood
samples from felons for registration in a DNA databank does not
violate the Fourth Amendment); Russell v. Gregoire,  124 F.3d  1079
(9th Cir.  1997)  (holding that convicted sex offenders have no
right of privacy preventing a state from requiring them to
register as such and be subject to community notification of
their residences), cert. denied,  523 U.S.  1007  (1998); Jones v.
Murray,  962 F.2d  302,  306  (4th Cir.  1992)  (“Even probationers
lose the protection of the Fourth Amendment with respect to their
right to privacy against searches of their homes pursuant to an
established program to ensure rehabilitation and security.”
(citing Griffin,  483 U.S. at  868)), cert. denied,  506 U.S.  977




-25-
(1992); Standley,  362 N.C. at  329-33,  661 S.E.2d at  730-32
(holding that a convicted sex offender’s constitutional rights
were not violated by a municipal ordinance that prohibited him
from access to public parks); Bryant,  359 N.C. at  557-70,  614
S.E.2d at  481-89  (holding that no due process violation occurred
when a convicted sex offender who was required to register in
South Carolina failed to register in North Carolina, even though
he received no actual notice of registration requirement).    Here
felons convicted of multiple counts of indecent liberties with
children are not visited by DCC personnel for random searches,
but simply to ensure the SBM system is working properly.
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




-26-
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,  507
F.3d at  1002.    Still, the court in Bredesen could not conclude
that these circumstances rendered Tennessee’s SBM program
punitive.
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.




-27-
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 legislature has made the best choice
possible to address the problem” but  “whether the regulatory
means chosen are reasonable in light of the nonpunitive
objective.”    Id. at  105.    The risk of recidivism posed by sex
offenders has been widely documented and is well established.
See Standley,  362 N.C. at  333,  661 S.E.2d at  731  (discussing the




-28-
high recidivism rates among sex offenders); see also McKune v.
Lile,  536 U.S.  24,  32-34  (2002)  (plurality)  (describing sex
offender recidivism rates as  “frightening and high”).    The SBM
program at issue is reasonable when compared to the unacceptable
risk against which it seeks to protect.
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
N.C.G.S.  §  14-208.40(a).    The legislature viewed these categories
of offenders as posing a particular risk to society.    It is not
excessive to legislate with respect to these types of sex
offenders  “as a class, rather than require individual
determination of their dangerousness.”    Smith,  538 U.S. at  104.
Individual determinations can be made though under N.C.G.S.  §  14-
208.43 if an offender on lifetime SBM petitions the North
Carolina Post-Release Supervision and Parole Commission for
removal from the SBM program, subject to meeting certain
conditions.  4 The possibility of removal from the SBM program
following a determination that the  “person is not likely to pose
a threat to the safety of others” adds to the reasonableness of
the SBM program.    N.C.G.S.  §  14-208.43(c).
4
Section  14-208.43(e) does not permit consideration of a
request to terminate participation of an offender subjected to
SBM under section  14-208.40(a)(2).    This provision does not
detract from our conclusion, however, because section  14-
208.40(a)(2) itself requires an individualized assessment before
applying SBM to an offender whose risk level  “requires the
highest possible level of supervision and monitoring.”




-29-
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.
REVERSED AND REMANDED.




-30-
No.  448PA09  - State v. Bowditch et al.
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, N.C.G.S.  §§  14-208.40 to  -
208.45  (2009), indicates that the General Assembly intended the
SBM program as a criminal punishment rather than as a civil
regulatory scheme for monitoring sex offenders.    Likewise, I
recognize that the General Assembly enacted the SBM program  “to
protect our State’s children from the recidivist tendencies of
convicted sex offenders,” specifically those found guilty of
aggravated offenses or determined to be sexually violent
predators.    However, my analysis of the factors laid out in




-31-
Kennedy v. Mendoza-Martinez,  372 U.S.  144,  168-69,  9 L. Ed.  2d
644,  660-61  (1963), compels the conclusion that the DOC’s
implementation has transformed this SBM program from regulatory
to punitive in its effects on the liberty interests of these
defendants.
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,  155 L. Ed.  2d  164,  180  (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,  155 L. Ed.  2d at  183  (citations,
internal quotation marks, and alteration omitted).    Certainly, a
program that affirmatively restrains an enrollee’s liberty--
indeed, even one authorizing the involuntary commitment of an
individual to an institution--may be found to be nonpunitive if
the action at issue advances the program’s regulatory purpose.
See Kansas v. Hendricks,  521 U.S.  346,  370-71,  138 L. Ed.  2d.
501,  516  (1997)  (upholding a statute that provides for the
involuntary civil commitment of sexually violent predators who
are determined to suffer from a  “mental abnormality” or




-32-
“personality disorder”).    A review of the transcripts and
exhibits here shows that this program does not protect the public
in any effective way.    In light of its lack of effectiveness, the
SBM program at issue here is so excessively restraining and
intrusive that it becomes punitive.
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
5
The State did not submit any evidence or data to support
the assertion that sex offenders are more recidivist than other
criminals.    In fact, several reputable sources, including North
Carolina’s own Sexual Offender Accountability and Responsibility
(SOAR) program, identify this notion as one of the top  “myths”
concerning sex offenders, although the data are somewhat murky.
See SOAR Program Presentation, Conference of North Carolina
Superior Court Judges  (June  14,  2006),
http://www.sog.unc.edu/faculty/smithjess/200606conference/
200606CarboStat.doc  (listing a series of  “Myths,” including:
“Sex offenders have the highest recidivism rates of all
criminals.”); Melissa D. Grady, Sex Offender Myths: Fact or
Fiction: What do we know about sex offenders and how to prevent
sex crimes?  [hereinafter Sex Offender Myths],
http://www.preventchildabusenc.org/wp-content/uploads/2009/06/




-33-
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:
COURT:    Why monitor somebody if you can’t
exclude them from going to places you don’t
want them to go?
[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?
October-Sex-Offender-Myths_Final1.pdf  (“Myth  #8: Most sex
offenders reoffend,” but in reality,  “the rate varies depending
on the types of crimes or the types of victims an offender
targets”;  “Myth  #5:    Current laws  .  .  . have been effective in
reducing the number of sex crimes committed,” but actually,
“nearly  96% of all sex crimes are committed by first-time
offenders.”  (emphases omitted)).




-34-
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 safety, which is
advanced by alerting the public to the risk of sex offenders in
their communit[y]’”); Hendricks,  521 U.S. at  363,  138 L. Ed.  2d
at  516  (“Far from any punitive objective, the confinement’s
duration is instead linked to the stated purposes of the
commitment, namely, to hold the person until his mental
abnormality no longer causes him to be a threat to others.”
(citation omitted)  (emphasis added)); Wallace v. State,  905
N.E.2d  371,  383  (Ind.  2009)  (considering whether the registration
statute in question, initially enacted as a measure  “to give the




-35-
community notification necessary to protect its children from sex
offenders,”  “advances a legitimate purpose of public safety” or
establishes a framework that is a  “legitimate way to protect the
public from repeat offenders”  (emphasis added)); State v.
Letalien,  2009 ME  130,  ¶  54,  985 A.2d  4,  24  (2009)  (emphasizing
the  “positive benefit” of the  “over-inclusive aspect of the
registration requirement” because  “the public has ready access to
information for a longer period regarding a group of individuals
who, at least as a class of persons, pose a public safety risk”);
see also Erin Murphy, Paradigms of Restraint,  57 Duke L.J.  1321,
1407  (“[R]ather than rely upon speculative assessments that a
particular technology achieves a particular goal, courts should
demand evidence of its capacity to achieve its stated purpose.”).
Here the majority opinion itself repeatedly downplays
the intrusive nature of the SBM program and emphasizes that it is
“passive,” 6that 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
6
In fact, while the majority uses the word  “passive” to
characterize the monitoring, the SBM program actually falls under
the  “active” category of monitoring as defined by the
manufacturer of the devices and by the DCC’s own Sex Offender
Management Interim Policy, because the device provides an
immediate notification, or  “near real-time reporting,” of an
alert or violation.




-36-
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 program does not provide any
information to the public beyond what is already readily
available through the sex offender registry.7
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
7
The sex offender registry allows members of the public to
take steps to protect themselves, for example, by researching the
publicly available list if they have doubts about a caregiver,
coach, or neighbor.    The SBM program does not involve any such
release of information or provide additional means for the public
to avoid these offenders found to be at high risk of recidivism,
aside from their possible identification through the ankle
bracelet and MTD--yet the majority opinion notes that these
devices  “could  [be] perceive[d] to be any number of personal
electronic devices” and thus essentially do nothing to alert the
public that a dangerous sex offender is in their midst.




-37-
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
8
Even worse, the SBM program may provide a false sense of
security in this regard, as another common myth about sex
offenders is that they are strangers to the victims.    See Sex
Offender Myths.    According to this report,
[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.
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.
9
Todd Carter testified that  “they can go wherever they want
to,” and Lori Anderson stated she was not aware of anything
preventing someone under SBM from going into a school or park.
Hannah Roland also confirmed that there is no immediate alert if
a lifetime tracker goes within three hundred feet of a school.
But see Act of July  18,  2008, ch.  117, sec.  12,  2008 N.C. Sess.
Laws  426,  432  (the  “Jessica Lunsford Act,” providing in part that
registered sex offenders are prohibited from knowingly being
“[o]n the premises of any place intended primarily for the use,
care, or supervision of minors, including, but not limited to,
schools, children’s museums, child care centers, nurseries, and
playgrounds” with limited exceptions).
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),




-38-
Assembly may have intended the SBM program to further the
nonpunitive purpose of protecting our children, but the evidence
presented here simply does not show that the program’s current
implementation, without the use of inclusion or exclusion zones,
bears any rational connection to that purpose, beyond conclusory
statements claiming a link.
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.
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).




-39-
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
therapy 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

Download 448pa09-1.pdf

South Carolina Law