Sex offenders have rights, too, and in some cases the state has been violating those rights, the NC Supreme Court ruled on Friday.
The ruling concerns people who have been ordered to submit to satellite-based monitoring for the rest of their lives, which forces them to wear a tracking device so law enforcement can track their location via GPS using an ankle bracelet.
Nearly 500 North Carolina sex offenders could now be freed from lifetime surveillance by the GPS monitoring program. However, it’s not yet clear how many actually will be.
Most states don’t have lifetime monitoring at all, the Supreme Court wrote. And only in North Carolina and California can offenders be forced to undergo lifetime monitoring without the option for reviewing it, and without regard for the severity of the offender’s crime.
But in North Carolina, that rule is now no more. In a ruling written by Justice Anita Earls, the court said it’s unconstitutional for North Carolina to order people into lifetime monitoring simply for recidivism — committing a second offense — and no other reason.
“We conclude that in such circumstances, the Fourth Amendment ... prohibits the mandatory imposition of lifetime SBM on this class of individuals,” Earls wrote for the court, using SBM to refer to satellite-based monitoring.
The judges cited a 2018 U.S. Supreme Court ruling that the Fourth Amendment is intended in part to “place obstacles in the way of a too permeating police surveillance.”
Once offenders are done with their prison sentence, probation or parole, the NC Supreme Court wrote Friday, the state can now only order them to undergo lifelong GPS monitoring under certain circumstances.
Greg Thomas, a spokesman for the state’s Division of Community Corrections, said in an email Friday that there are 473 people who are under lifetime monitoring and not under probation or parole supervision. He said it’s unclear how many people the new court ruling will affect, since “each requires an individual assessment of the criteria that placed them on lifetime (monitoring) before a final number can be determined.”
Depending on the details of their crime, an offender could have what are called “aggravating factors” on his or her record. Having aggravating factors is one reason the state can still order lifetime monitoring. So are a few other specific circumstances, such as an adult convicted of statutory offenses with a victim under 13 years old, or someone deemed to be a sexually violent predator.
The kind of person it would not apply to is someone like Torrey Grady, who brought Friday’s case to the Supreme Court in the first place.
When Grady was a teenager, he pleaded no contest to a sex crime and spent nearly six years in prison, according to the Supreme Court ruling and to state records. He got out in 2002, and in 2004 he pleaded guilty to failing to register as a sex offender. Around that same time, when he was 26, he got a 15-year-old pregnant and in 2006 he pleaded guilty to taking indecent liberties with a child.
Because of his earlier legal problems, he was considered a recidivist — someone who re-offends — and therefore automatically ordered into lifetime GPS monitoring. After several years he challenged that and lost at trial but got a win at the NC Court of Appeals, which declined to rule on the entire program but did rule that the way Grady had specifically been treated was unconstitutional.
The Supreme Court took that a step further on Friday, ruling that every person in a position like Grady’s — people who were ordered into lifetime monitoring for no reason other than recidivism — is being treated unconstitutionally.
“The generalized notions of the dangers of recidivism of sex offenders, for which the State provided no evidentiary support, cannot justify so intrusive and so sweeping a mode of surveillance upon individuals, like defendant, who have fully served their sentences and who have had their constitutional rights restored,” Earls wrote for the court.
The ruling said that even if the state is right that Grady’s “legitimate expectations of privacy are diminished due to his status as a convicted sex offender,” it’s also true that his “expectations of privacy are not completely eliminated.”
The ruling was not unanimous.
Justice Paul Newby, who is the only Republican on the seven-member court, dissented along with Justice Mike Morgan. And Justice Mark Davis, who only recently joined the court from the Court of Appeals, didn’t take part in the decision. So in the end the ruling was 4-2.
Newby’s dissent said the court’s majority didn’t do enough to consider whether particularly egregious offenders might be let out of GPS monitoring.
He also said that while it may be intrusive, it’s better than being locked up.
Newby wrote that “governmental interest outweighs the minimal intrusion upon diminished privacy interests ... and lifetime SBM is significantly less invasive than civil commitment or other regulatory options available for those offenders.”