South Carolina’s Sex Offender Registry has turned into Punishment

According to the Supreme Court of the United States, the authority of the state to require sex offender registration flows from a conviction. Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 84 (2003) (“the law’s requirements turn on an offender’s conviction alone”); Smith v. Doe, supra, (registration requirement and dissemination of information flows from conviction).

In Smith v. Doe, the Supreme Court considered an ex post facto challenge to Alaska’s adult sex offender registry.  The majority, however, noted, “The Alaska statute, on its face, does not require these updates to be made in person.”  538 U.S. at 101.  The High Court reserved for another day “[w]hether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved.”  Id. at 102.  Alaska, however, has recognized that its sex offender registration requirement “treats offenders not much differently than the state treats probationers and parolees subject to continued state supervision.  Doe v. State, 189 P.3d 999, 2008 (Alaska 2008) (holding sex offender registry violates ex post facto clause of state constitution).

Other states have reached the same conclusion as Alaska.  See Doe v. Dep’t of Pub. Safety & Corr. Servs., 430 Md. 535, 568, 62 A.3d 123, 143 (2013) (“The application of the statute has essentially the same effect upon Petitioner’s life as placing him on probation and imposing the punishment of shaming for life, and is, thus, tantamount to imposing an additional sanction for Petitioner’s crime.”); State v. Letalien, 2009 ME 130, 985 A.2d 4 (2009) (held retroactive application of SORNA of 1999 violated ex post facto prohibitions by increasing registration duty of certain offenders from 15 years to their entire lifetimes and imposing a quarterly in-person verification requirement, without affording an opportunity for relief from those duties at discretion of sentencing court.)

When South Carolina first enacted a sex offender registry in 1994, the legislative intent was “to promote the State’s fundamental right to provide for public health, welfare and safety of its citizens.”  1994 Act 497, Part II §112A (S.C. Code §23-3-400).  The registry was “not intended to violate the guaranteed constitutional rights of those who have violated our nation’s laws.”  Id.  “[T]he General Assembly . . . intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes. Hence, the language indicates the General Assembly’s intention to create a non-punitive act.”  State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002).  Sex Offender registration in South Carolina is lifetime.   1994 Act 497, Part II §112A (S.C. Code §23-3-460).  See also Hendrix v. Taylor, 353 S.C. 542, 579 S.E.2d 320 (2003) (since sex offender registration is non-punitive, no liberty interest is implicated regardless of the length of time registration is required).

Initially, the Sex Offender Registry applied only to “convictions,” and not juvenile adjudications.  1994 Act 497, Part II §112A (S.C. Code §23-3-430).  See State v. Ellis, 345 S.C. 175, 179, 547 S.E.2d 490, 492 (2001) (a juvenile adjudication is not the same as a conviction). When the General Assembly began requiring juveniles adjudicated of certain offenses to register as sex offenders, the juvenile’s information remained confidential.  1996 Act 444 §16 (S.C. Code §23-3-430, 490).  It wasn’t until 1998 that the General Assembly authorized release of juvenile sex offender information under certain circumstances.  1998 Act 384 §1 (S.C. Code §23-3-490).  The South Carolina Supreme Court has held requiring a juvenile to register as a sex offender does not violate due process, at least in situations where the juvenile’s “registry information will not be made available to the public because of appellant’s age at the time of his adjudication.”  In re Ronnie A., 355 S.C. 407, 410, 585 S.E.2d 311, 312 (2003).

Since this Court’s decisions in Walls, Hendrix, and Ronnie A. in 2002 and 2003, South Carolina’s Sex Offender Registry has become punitive.  Sex offenders are now required to register biannually and, in some cases, quarterly and pay an annual registration fee.   In addition to the country of residence, offenders must register in any county where the offender works, attends school, or owns property.   S.C. Code §23-3-460.  Much like the cases discussed above, our state’s registration requirement is identical to lifetime probation.

In 2005, the General Assembly began requiring lifetime satellite monitoring for an offender convicted or adjudicated delinquent of certain offenses, including lewd act (currently called third degree criminal sexual conduct with a minor) and first degree criminal sexual conduct with a minor.  2005 Act 141 §8 (S.C. Code §23-3-540).  The monitoring devise is attached to the person’s leg and must be charged daily.  Recharging the device requires the person to be attached to an electrical outlet for two hours or more each day.  The Department of Probation, Parole, and Pardon Services administers the satellite monitoring program, sets the charging schedule, and receives notifications regarding compliance with the charging schedule.  Thus, satellite monitoring is the modern day equivalent of a ball-and-chain.

Also in 2005, the General Assembly began restricting residency by prohibiting sex offenders “from living in campus student housing at a public institution of higher learning supported in whole or in part by the State.”  2005 Act 94 §2 (S.C. Code §23-3-465).  In 2008, the General Assembly prohibited sex offenders convicted of certain offenses from residing “within one thousand feet of a school, daycare center, children’s recreational facility, park, or public playground.”  2008 Act 333 §1 (S.C. Code §23-3-535).  The General Assembly expressly declared residency restrictions to be “penalties.”  S.C. Code Ann. § 23-3-535(E)(1).

Thus, the frequent registration, satellite monitoring, and residency restrictions have made South Carolina’s Sex Offender Registry punitive.

Please click here to read “Satellite Monitoring of Sex Offenders Requires Judicial Review,” discussing the South Carolina Supreme Court opinion in State v. Dykes.  (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.)

Editorial Note:  The South Carolina Association of Criminal Defense Lawyers invited Charles Grose to speak on “Finally Finishing Forensic Interviews” at the 8th Blues, Bar-B-Q, and Bar CLE, on July 12, 2013 in Greenwood, South Carolina.  This blog post is the third of four post released to coincide with this seminar.  Click these links to read “Finally Finishing Forensic Interviews? No, but Why and What Comes Next?,” “Independent Mental Evaluations of Children Alleging Sexual Abuse,” and “Special Concerns Involving Juvenile Sex Offender Registration.”