More Satellite-Based Monitoring Cases, Another Dissent

It seems like every batch of new opinions from the court of appeals includes at least one case on satellite-based monitoring (SBM) of sex offenders. Yesterday's batch had two. State v. Morrow involved a defendant convicted of indecent liberties with children in November of 2006. He was sentenced to probation, which was ultimately revoked in early 2008. After revoking Mr. Morrow's probation, the court held an SBM determination hearing (a bring-back hearing) at which it determined that Mr. Morrow had committed an offense involving the "mental, physical, or sexual abuse of a minor" and that he required the "highest possible level of supervision and monitoring," notwithstanding the fact that DOC's Static-99 risk assessment rated him a "moderate" risk. The court ordered him to enroll in SBM for a period of "seven to ten years." The defendant first argued that SBM violates the Ex Post Facto Clause by increasing the punishment for his crime after it was committed. Citing to State v. Bare, the court rejected this argument, although it once again noted (as it did in Bare and State v. Wagoner) that the record lacked evidence about the actual nature of the program as applied to the defendant. After declining to rule on Mr. Morrow's void for vagueness argument because it was not raised in the trial court, the court next considered the defendant's argument that the SBM hearing procedure violates due process by failing to give the defendant notice of precisely what evidence will come into play at the hearing. [...]