Satellite-Based Monitoring and State v. Kilby

by School of Government faculty member Jamie Markham There are two categories of sex offenders subject to satellite-based monitoring: those subject to lifetime monitoring, and those subject to monitoring for a period of time specified by the court. For an offender to fall within the latter category (called "conditional" monitoring by DCC), the court must find that the offense involves the "physical, mental, or sexual abuse of a minor," and must determine, based on a DOC risk assessment, that the offender requires the "highest possible level of supervision and monitoring." G.S. 14-208.40A(d) and -208.40B(c). DOC uses a risk assessment based on the Static-99, a ten-question actuarial instrument developed in Canada for use with adult male sex offenders. A risk level - high, moderate, or low - is generated based on the offender's answers to the questions. Previously, it was unclear exactly what the risk assessment score meant. Could an offender who rates something other than high risk still be deemed to require the highest possible level of supervision and monitoring? Or is a high risk assessment a sine qua non for conditional monitoring? The court of appeals considered these questions in State v. Kilby. Mr. Kilby had committed multiple offenses that involved sexual abuse of a minor, but the DOC risk assessment rated him as a moderate risk. The court nonetheless found that the defendant required the highest possible level of supervision of monitoring and ordered him to SBM for 5-10 years. Mr. Kilby argued on appeal that a moderate risk [...]