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Lifetime Satellite Based Monitoring for Recidivist Sex Offenders in North Carolina

It is no surprise that the general population would agree that there are substantial concerns regarding the post-conviction release of sex offenders and their reintegration in society.  The North Carolina General Assembly has attempted to address some of these issues with laws that impose special restrictions and requirements on convicted sex offenders.  Some of these restrictions and requirements include housing restrictions, restrictions from entering upon school premises, law-enforcement reporting requirements, and even satellite base monitoring (SBM) in certain cases.

 

Under certain circumstances the SBM condition can exist for the lifetime of the convicted; particularly if convicted of statutory rape of a child by an adult, the offense was an aggravated offense, the offender has been classified as a sexually violent predator, or if the court determines that the offender is a recidivist having been convicted of another “reportable offense”.  Once a court determines that an offender is a recidivist and subject to SBM, then they will be required to remain on SBM for life.  However, should a court conduct a hearing and the court determine that an offender is not a recidivist then that decision is binding until the offender is convicted of another reportable offense.  In that case, the court has jurisdiction to conduct further lifetime SBM hearings based on recidivism only if the offender is again convicted of a reportable offense.

 

Lifetime SBM raises certain constitutional concerns which are not addressed in the North Carolina General Statutes, and therefore all lifetime SBM hearings engage in a constitutional analysis separate and apart from the statutory requirements.  Specifically, because courts have determined that SBM effectuates a continuous search within the meaning of the 4th Amendment to the United States Constitution, the state must show that the search is reasonable under the totality of the circumstances.  This often involves considering the nature and purpose of the search (SBM), the extent to which it intrudes on the offender’s reasonable expectation of privacy, and balancing the public interest forwarded by imposing SBM on the particular offender.

 

SBM hearings may appear criminal in nature, but are not.  SBM hearings are held during Criminal Sessions of Superior Court and SBM is always ordered pursuant to some underlying criminal offense.  Indeed, it is the District Attorney’s office who represents the state’s interests during and the Department of Corrections, along with law enforcement are instrumental in formulating the petitions.  However, our courts agree that SBM is neither punitive in nature nor does it function as part of the criminal justice system.  Instead it is a civil regulatory scheme set out to forward the interest of the public.