Section 23-3-540 of the South Carolina Code of Laws requires mandatory, lifetime satellite monitoring of people convicted of first-degree criminal sexual conduct with a minor or committing a lewd act on a minor. On May 22, 2013, in State v. Dykes, the South Carolina Supreme Court held “that the statute’s initial mandatory imposition of satellite monitoring is constitutional” but “the lifetime requirement without judicial review is unconstitutional.” The effect of the Court’s decision is to allow judicial review of the satellite monitoring requirement after ten years.
In a strong dissent joined by Justice Donald Beatty, Justice Kaye Hearn “agree[d] with Dykes that subsection (C) of 23-3-540 unconstitutionally infringes on her right to substantive due process” and should be “stricken from the statute.” Justice Hearn concluded “that the right of an individual to be free from the government’s permanent, continuous tracking of her movements is easily encompassed by the larger protection of liberty and personal privacy accorded by the Constitution.”
Particularly troubling is the majority’s conclusion “that satellite monitoring is predominately civil.” Civil statutory schemes receive less stringent constitutional analysis. In reaching this conclusion, the majority relied on the United States Supreme Court’s decision in Smith v. Doe, 538 U.S. 84 (2003) holding that Alaska’s sex offender registry was not punitive. Alaska’s sex offender registry at the time of that case, however, did not involve satellite monitoring. Also unlike the registry involved in Smith v. Doe, South Carolina has an “in person” reporting requirement and restricts where some sex offenders are allowed to live. South Carolina’s sex offender registry, therefore, is much more restrictive and punitive than what the United State’s Supreme Court has previously approved. Hopefully, the right challenge will convince the South Carolina Supreme Court to consider certain provisions of our sex offender registry punitive and employ a more stringent constitutional analysis.
Preview: A more detailed blog entry regarding the punitive aspects of South Carolina’s Sex Offender Registry will be released on July 12, 2013 to coincide with the South Carolina Association of Criminal Defense Lawyers Blues, Bar-B-Q, and Bar CLE. Click here for a Preview of Upcoming Blog Posts for Blues, Bar-B-Q, and Bar CLE.
Disclosure: Charles Grose served as counsel to the amicus curie party in State v. Dykes and represents other clients challenging provisions of South Carolina’s sex offender registry.
Update: On July 24, 2013, the Supreme Court issued a revised opinion in State v. Dykes. Please click here to read Update: Satellite Monitoring of Sex Offenders Requires Judicial Review.