October 9, 2010

NC justices uphold monitoring some sex offenders

Another law which will wind up in the U.S. Supreme court, this conflicts with at least Massachusetts (see Commonwealth -v- Cory) on the same issue.
10-9-2010 North Carolina:

RALEIGH, N.C. -- Sex offenders in North Carolina can be electronically monitored even if they were convicted before the tracking law was passed, a divided state Supreme Court ruled Friday.

The justices ruled 4-3 the satellite-based monitoring doesn't amount to an additional unconstitutional punishment for three men convicted of taking indecent liberties with children before the monitoring law took effect.

Under the monitoring, people convicted of certain sex crimes must wear an ankle bracelet and a miniature tracking device that uses GPS technology so Department of Correction officials can know their whereabouts on a near real-time basis. Probation officials enter the offender's house every three months for equipment maintenance.

The Legislature sought the tracking to attempt to prevent repeat offense.

Kenney Bowditch, Kenneth Edward Plemmons, and Mark Allen Waters - each of whom pleaded guilty to the child sex crimes before the law took effect in August 2006 - challenged their enrollments, calling them retroactive punishments.

Buncombe County Superior Court Judge Dennis Winner last year found the Legislature intended the monitoring to be a criminal punishment. The state appealed.

Writing for the majority, Associate Justice Edward Brady overturned Winner's decision because the primary purpose of the monitoring is to deter crime. He cited the bill's title "to protect North Carolina's children" as proof of the General Assembly's desire to create a non-punitive way to keep track of sex offenders.

"There is no denying that being subjected to SBM (monitoring) has an impact on the lives of its participants," Brady wrote. "Yet, when viewed in light of other civil, regulatory schemes, we cannot conclude that the effects of SBM transform it into criminal punishment."

Associate Justice Robin Hudson disagreed, pointing out testimony before Winner indicated the program did very little to prevent harm to children while likely adding shame to offenders. Enrollees also have trouble getting certain jobs and their bracelets set off alarms when they enter metal buildings, Hudson wrote.

While sexual offenses are among the most disturbing crimes and the public supports legislative efforts to ensure victims are protected, Hudson wrote, "even sex offenders continue to have some constitutional rights. We may not be fond of this particular class of defendants, but that does not lessen their Fourth Amendment rights nor their expectation of privacy in their own homes."

Chief Justice Sarah Parker and Associate Justice Patricia Timmons-Goodson joined her in the dissenting opinion.

The Correction Department couldn't calculate Friday how many of the 275 people being monitored were convicted before the program began. The ruling doesn't affect people convicted after the law was enacted.

Phone calls to attorneys for Bowditch and Waters weren't immediately returned. Plemmons' attorney wasn't at her office late Friday. Attorney General Roy Cooper's office, which defended the state in the case, didn't return a phone call and e-mails seeking comment.

The ruling underscores efforts in North Carolina and other states to respond to the public outcry about molesters and high-profile abductions of children such as 9-year-old Jessica Lunsford, a former Gaston County resident who was kidnapped, raped and buried alive by a convicted sex offender in 2005 in Florida. ..Source.. GARY D. ROBERTSON

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