Forget federalism: NC invites regulatory control over its citizens

By JAMIE MARKHAM . . . Last month the supreme court decided State v. Moir. It is a case about how a state sex crime—namely, indecent liberties with a child—fits within the offense tiering system set out in the federal Sex Offender Registration and Notification Act (SORNA).

It has been a while since I last blogged about this topic, so let’s start with some background.

Sex offenders who aren’t required to register for life can petition for removal from the registry 10 years from the date of initial county registration. G.S. 14-208.12A. The superior court judge hearing that petition may grant relief only if, among other things, doing so would “compl[y] with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” G.S. 14-208.12A(a1)(2).

As noted on this blog since 2009, that finding, which I’ll call the Wetterling finding, effectively incorporates an important bit of federal law into our state sex offender registration regime. As a matter of state statute, a judge can’t let someone off the registry if doing so would violate relevant federal laws and regulations—even though North Carolina hasn’t enacted other state laws incorporating those federal standards explicitly. (Even now, only 17 states are substantially compliant with SORNA, and North Carolina isn’t one of them.)

Easily the most important federal law that a judge must consider when hearing a petition to terminate registration is the length of registration period that would be required for the offense under federal law. Federal law groups crimes into three tiers—Tier I, Tier II, and Tier III—that require registration for 15 years, 25 years, and life, respectively. So, even though G.S. 14-208.12A allows for a petition to terminate after 10 years, the upshot of the Wetterling finding is that many offenders will not be able to petition successfully at that point, because the judge would not be able to find that removal would comply with the lengthier minimum federal registration period. Only for Tier I offenders with a defined “clean record” (discussed here) could a judge make the finding necessary to allow removal in as few as 10 years.

The federal tiers are defined in SORNA, largely by reference to a set of benchmark federal crimes. For example, a state offense should be considered Tier III (the most serious tier) if it is comparable to or more severe than aggravated sexual abuse under 18 U.S.C. § 2241. In this prior post I summarized the tier definitions. As I noted there, however, rehashing the federal definitions is the easy part. The hard part is actually sorting North Carolina’s sex crimes into the tiers. How do you do it—especially when our crimes don’t all have elements that align neatly with the benchmark federal offenses?

That brings us to Moir.

In Moir, the defendant was convicted of indecent liberties with a child in 2001. He inappropriately touched a four-year-old’s genital area and masturbated in front of the child. He registered as a sex offender in 2002. Ten years later, in 2012, he petitioned for removal from the registry.

The presiding judge found only one obstacle to removal: that it would run afoul of federal law to let the petitioner off the registry after only 10 years. The court found that touching of a victim’s genital area was “sexual contact” as defined in 18 U.S.C. § 2246, and thus comparable to or more serious than “abusive sexual contact” under 18 U.S.C. §2244—a benchmark offense for Tier II sex crimes under SORNA. (Arguably the trial court’s reasoning should have led it to conclude that this was a Tier III offense by virtue of the victim’s young age; abusive sexual contact against a minor under 13 would be Tier III. The wrinkle turns out not to matter for now, although I think the supreme court was subtly flagging it in footnote 5.) Because Tier II offenses require a minimum registration period of 25 years, the court concluded that removal would not comply with the Wetterling Act, as amended, and denied the petition.

The defendant appealed.

(Please continue reading on the North Carolina Criminal Law blog).