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 assessment, without more, is insufficient to support the conclusion that he required the highest level of supervision and monitoring. The court of appeals agreed and reversed the trial court.

The court began by noting that "the highest possible level of supervision and monitoring," though undefined, must just mean SBM, because SBM is the only form of supervision or monitoring provided for in the statute - there's nothing any higher, so it's the highest. Although it could not "discern any direct correlation" between the risk assessment results and the SBM determination, the court said it was error to order SBM for a defendant who posed a moderate risk when there were no additional findings indicating that he required the highest possible level of supervision and monitoring. No need even to remand the case for findings, the court said, because the State presented no evidence on which such findings could be based. To the contrary, all the evidence from the hearing indicated that Mr. Kilby was a pretty cooperative guy. (I wonder: could the court have properly rested its determination on a "factual finding" that Mr. Kilby was convicted of one count of second degree sexual offense and six counts of indecent liberties with a child? Your thoughts?)

Here's what I take away from Kilby: If the court wants to order conditional SBM for an offender with a Static-99 risk level other than high, it apparently may do so. But first, it must make findings of fact in support of its determination that the person requires the highest possible level of supervision and monitoring. I've updated my sex offender registration and monitoring flow chart accordingly. Forms AOC-CR-615 and AOC-CR-616 don't leave space for such findings, but a judge could use AOC-CR-618, a generic form for additional findings, to set out the facts supporting his or her determination.

Though the court didn't have to reach the issue of whether it was proper to order SBM for an indeterminate period of "5-10 years," I don't mind weighing in. My advice has been that conditional monitoring should be ordered for a discrete period, not a range of time. I say that because requests for SBM termination are before the Post-Release Supervision and Parole Commission, and under G.S. 14-208.43(e), the Commission "has no authority to consider or terminate a monitoring requirement for an offender described in G.S. 14-208.40(a)(2)," i.e., offenders subject to conditional monitoring. So, a period 5-10 years is really a period of 10 years, and you might as well call it that up front.

Finally, I wanted to draw your attention to one additional sex offender-related item, an update on State v. Worley (the homeless sex offender case).