In 2006, the General Assembly passed legislation allowing satellite-based monitoring of certain types of sex offenders. Could this monitoring requirement also be imposed on sex offenders though who committed their crimes earlier? A closely divided N.C. Supreme Court answered “yes,” saying that such a requirement would not violate the prohibition on ex post facto laws contained in the U.S. and North Carolina constitutions.
Kenney Bowditch, Kenneth Edward Plemmons, and Mark Allen Waters each pleaded guilty in separate incidents to multiple counts of taking indecent liberties with a child. The crimes took place before Aug. 16, 2006, when the statute took effect. The victims were between 6 and 10 years of age when the crimes occurred. Plemmons received a 24- to 29-month prison sentence; Bowditch and Waters both were sentenced to supervised probation.
After the state sought to require the three sex offenders to be subjected to satellite monitoring, Bowditch, Plemmons, and Waters challenged the constitutionality of the requirement.
Satellite based monitoring involves three separate pieces of equipment: an ankle bracelet, a tracking device, and a base unit.
The monitoring equipment does not function everywhere. Going deep into buildings containing significant amounts of steel, for example, can block the signal. If that happens, enrollees must go outside. Airline travel, bathing, swimming, scuba diving, and camping in remote areas all may be impossible while connected to satellite monitoring. The limitations of the system may restrict where someone connected to the system could find a job, even if criminal history were not a factor.
The U.S. and North Carolina constitutions prohibit ex post facto laws. The N.C. Supreme Court has stated that, “An ex post facto law may be defined … as a law that ‘allows imposition of a different or greater punishment than was permitted when the crime was committed.’” Whether the monitoring requirement amounts to punishment is a key constitutional consideration.
Even if the law does not impose restrictions that are considered punishment, it must still be examined to see whether it is “so punitive either in purpose or effect as to negate” the statue’s civil intent. The U.S. Supreme Court laid out a framework for determining this in its 1963 decision Kennedy v. Mendoza-Martinez.
Four of the N.C. Supreme Court’s seven justices found that subjecting Bowditch, Plemmons, and Waters to the monitoring did not violate the federal or 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,” wrote Justice Edward Brady for the court. Justices Mark Martin, Robert Edmunds, and Paul Newby joined in Brady’s opinion.
The majority held that satellite monitoring was less harsh than other restrictions the U.S. Supreme Court considered nonpunitive, such as the involuntarily post-incarceration confinement of sex offenders, or barring a person from working in a particular occupation.
“There is no denying that being subjected to SBM has an impact on the lives of its participants,” the court said. “Yet, when viewed in light of other civil, regulatory schemes, we cannot conclude that the effects of SBM transform it into criminal punishment.”
Chief Justice Sarah Parker and Justices Robin Hudson and Patricia Timmons-Goodson dissented. In their view, satellite monitoring had not been shown to be effective enough to justify the deprivation of liberty involved.
“A review of the transcripts and exhibits here shows that this program does not protect the public in any effective way,” wrote Hudson. “In light of its lack of effectiveness, the SBM program at issue here is so excessively restraining and intrusive that it becomes punitive.”
Hudson noted that the majority simple accepted at face value the state’s assertion that satellite monitoring advances the nonpunitive purpose of protecting the public. This was particularly true for offenders who might have completed probation and/or parole, who were not under any legal restrictions on their movements.
In fact, Hudson noted, satellite monitoring does little beyond creating a log of someone’s movements.
“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.”
The case is State v. Bowditch (448PA09-1).
Michael Lowrey is an associate editor of Carolina Journal.