Another Batch of Satellite-Based Monitoring Cases

The last round of opinions from the court of appeals included three related to satellite-based monitoring (SBM) of sex offenders. None of them broke any major new ground, but two more dissents show that nothing is fully settled in this rapidly evolving area. In State v. Gardner, the court found the defendant, who was recently released from prison to post-release supervision, to be a recidivist and ordered him to enroll in SBM for life. At the determination hearing, the defendant argued that SBM was an invalid ex post facto punishment and violated double jeopardy principles. The trial court acknowledged in its order that Mr. Gardner might have a point, but said the issue wouldn't be ripe for review until he finished his term of post-release supervision. The court's idea, I think, was that because post-release supervisees are required to submit to SBM as a condition of supervision under G.S. 15A-1368.4(b1)(6), SBM for life-the regime that defendants have been arguing adds to their punishment-doesn't actually begin until formal supervision ends. It's not a bad argument, although as it turns out it may yet violate the Ex Post Facto Clause to add a mandatory condition of supervision to cases based on crimes that occurred after passage of the legislation adding the condition-that's what happened in Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009), as discussed in my comment to this post. Regardless, the appellate court's problem with the trial court order in Gardner was with its clarity, not its constitutionality. In one place [...]