More SBM Fallout from the Supreme Court

I mentioned in my last post that State v. Bowditch was not the only satellite-based monitoring (SBM) case recently decided by the Supreme Court of North Carolina. The court also affirmed four other decisions from the court of appeals and decided it had improvidently allowed discretionary review in another. Although those decisions turned in part on the underlying question of whether SBM is punishment, there were different issues at stake in each case. This post summarizes the various issues that we can now consider to have been resolved—either by affirmance or avoidance—after Bowditch and its companion cases. State v. Hagerman. The trial court determined that the defendant, convicted of four counts of indecent liberties with a child based on acts that occurred in 2005, was an aggravated offender and ordered him to enroll in SBM for life. The defendant did not raise any ex post facto argument, but instead argued that SBM enhanced his punishment in violation of his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the trial court’s aggravated-offense determination rested on facts not conceded by the defendant or found by a jury beyond a reasonable doubt. Over a dissent, the court of appeals concluded that SBM is part of a civil regulatory scheme and thus does not implicate a defendant’s Sixth Amendment jury-trial rights under Apprendi at all. The supreme court affirmed. (It appears to me the defendant should not have been required to enroll in lifetime SBM as a statutory, not constitutional, matter—as [...]