Satellite-Based Monitoring Is not Punishment

I was out of the office when the Supreme Court of North Carolina released its latest batch of opinions, so I’m just now getting around to writing about big news related to satellite-based monitoring (SBM) of sex offenders. In State v. Bowditch, the state high court concluded that SBM is not a criminal punishment, and thus does not implicate constitutional prohibitions against ex post facto laws. Bowditch was a consolidated case involving three defendants whose crimes occurred before the SBM regime was enacted into law in 2006.  At their G.S. 14-208.40B SBM determination hearing, the defendants developed an extensive factual record on various aspects of the monitoring regime, including the size and recharging period of the tracking devices enrollees must wear, the way the devices transmit information and alerts to DOC, and the various ways in which the program impacts an enrollee’s daily life. Based on that record, the defendants successfully persuaded the trial court that SBM is punitive—and thus an unconstitutional ex post facto punishment as applied to them. After the State appealed, the supreme court granted the defendants’ petition for discretionary review, bypassing the court of appeals. The supreme court reversed. Using the “intent-effects” framework the United States Supreme Court has used to analyze other ex post facto challenges, see Smith v. Doe, 538 U.S. 84 (2003) (holding Alaska’s sex offender registration law to be nonpunitive), the court determined that the General Assembly did not intend for SBM to punish offenders, and that the regime was no so punitive [...]