Is Being Homeless a Probation Violation?

A probation violation must be willful. In this prior post I wrote about the burden-shifting process in which the State must prove to the court’s reasonable satisfaction that a violation has occurred, and then the defendant has an opportunity to show that the failure to comply was not willful. The issue often arises in the context of monetary violations, where the defendant must—according to a statutory clause that includes a convoluted triple-negative—be given an opportunity to show that “nonpayment was not attributable to a failure . . . to make a good faith effort to obtain the necessary funds for payment.” G.S. 15A-1364; -1345(e). Two recent cases from the court of appeals discuss the willfulness of a different type of violation: homeless sex offenders’ inability to find a suitable residence. In State v. Talbert, a defendant was sentenced to probation for failing to register as a sex offender. He also received an active sentence for a larceny conviction. On the day he was to be released from prison, Talbert’s probation officer met with him to see if he had found a suitable place to live. He had not. He had no money and no family, and shelters had refused him because he was a sex offender. This was a problem, because Talbert was subject to a special condition of probation pursuant to Probation’s “Sex Offender Control Program” that required him to “[r]eside at a residence to be approved by the supervising officer.” Before Talbert ever left prison his probation officer filed [...]