A South Carolina Criminal Defense Blog

Posts in category Sex offenders

South Carolina GPS monitoring of sex offenders can be removed based on likelihood to re-offend

In May of this year, the S.C. Supreme Court held that lifetime GPS monitoring of a convicted sex offender is unconstitutional if there is no opportunity for judicial review.  When a person is convicted of any sex offense that requires sex offender registration, the Court has discretion as to whether or not the offender must wear a GPS monitor.  For every offense other than CSC 1st degree and lewd act, if the Court orders GPS monitoring, the offender can petition the court to have the monitor removed after 10 years, and every 5 years thereafter, upon a showing that the offender has complied with the monitoring requirements and that there is no longer a need for monitoring.

Lewd act and CSC 1st degree require mandatory lifetime GPS monitoring per the statute, but under Dykes that requirement is not constitutional – even if the legislature does not amend the statute, the Court must hear a petition to remove the monitoring after 10 years has passed and every five years thereafter, based on the offender’s likelihood to re-offend.  After Dykes, every person who is subjected to lifetime GPS monitoring should now have the opportunity to petition the court to remove the monitoring.

Every attorney who tries one of these cases should also be making a record as to the unconstitutionality of requiring GPS monitoring in the first place without a preliminary finding of the offender’s likelihood to re-offend, in the event that our supreme court revisits the issue or it is taken up in the federal courts.  An evaluation for the defendant’s likelihood to re-offend should be done before trial or plea and, if the outcome of the evaluation is favorable, a record should be made at any sentencing hearing.

In the hope that appellate courts and/or the legislature come to their senses, I think that we also need to continue to challenge the lifetime sex offender registry based on likelihood to re-offend as well.  GPS monitoring and the registry are extremely invasive and onerous and can only be justified in cases where it is demonstrated that the offender is likely to continue to be a danger – if the offender is not likely to ever commit a sex offense again it makes no sense to impose the stringent requirements and costs of either lifetime GPS monitoring or lifetime sex offender registry on them.

 

State v. Dykes – lifetime GPS monitoring is still unconstitutional

In State v. Dykes, decided May 22, 2013, the S.C. Supreme Court revisited it’s May 9 opinion, muddying the waters a bit more.  The Court now finds that the initial mandatory imposition of lifetime satellite monitoring under section 23-3-540(C) for CSC 1st degree and lewd act is constitutional, but that it is unconstitutional to impose lifetime GPS monitoring with no opportunity for judicial review.

The Court says that the requirement for GPS monitoring is not to punish sex offenders, but instead it is intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002). Thus, a likelihood of re-offending lies at the core of South Carolina’s civil statutory scheme.

For any offense, other than CSC 1st degree or lewd act, that requires sex offender registration, the court has discretion as to whether or not to also require GPS monitoring.  If the court orders the GPS monitoring, the offender can petition the court in 10 years to have the monitoring removed, upon a showing that the offender has complied with the monitoring requirements and that there is no longer a need to continue monitoring them. If the court denies the petition, the person may petition again every five years.

For a person convicted of CSC 1st degree or lewd act, however, there is no provision for judicial review and lifetime monitoring is mandatory.  The Court says this is wrong – a person’s risk of re-offending cannot be determined solely by the offense committed, and an offender should have the opportunity to present expert testimony that he or she poses a low risk of re-offending and therefore should be removed from the monitoring requirement.

The Court acknowledges that GPS monitoring is a significant restraint that amounts to a liberty interest – we are talking about forcing a person to wear a monitor strapped to their ankle, which chafes, can cause rashes and other discomfort, which tells the government their exact location within 15 meters 24 hours a day for the rest of their life.  As long as a person is monitored, they have to comply with all of the terms of electronic monitoring, report any damage to the device, pay for the costs of the monitoring (typically 70-80$ a week), ensure it stays charged every day, and any allegation that the person has tried to remove the device or failed to comply with the requirements can result in criminal charges.

If the likelihood of re-offending lies at the core of this “civil statutory scheme,” it makes no sense to say that it is constitutional to initially order lifetime GPS monitoring, regardless of a person’s likelihood to re-offend.  Wonderful, if we allow the offender to come back 10 years later and prove that they are not likely to re-offend, but if they are not likely to re-offend why order lifetime GPS monitoring to begin with?  It is arbitrary.  Period.

Further, how do we justify mandatory lifetime sex-offender registry without some finding of a person’s likelihood to re-offend?  In the May 9 opinion, the Court pointed out that the State, on appeal, argued that the sex-offender registry which makes the offender’s identity and location available not only to the government but to every person with the ability to look at a computer, is more invasive than GPS monitoring.  The registry provides the public with the offender’s full name, address, offense history, photograph, and physical description complete with a list of tattoos and scars.  It is unconstitutional to not permit review of GPS monitoring based on a person’s likelihood to re-offend, but it is constitutional to allow lifetime sex-offender registry without review, even though the government’s own position is that the registry is more invasive than the monitoring?

It is clearly arbitrary and serves no purpose to impose lifetime GPS monitoring or sex offender registry on those individuals who are not likely to re-offend.

The bottom line per the May 22 Dykes opinion is that there is no need to determine an offender’s likelihood to re-offend before imposing lifetime GPS monitoring following a conviction for CSC 1st degree or lewd act, but there must be a provision for re-evaluation at least after 10 years, and every 5 years thereafter.  If the legislature does not adopt a procedure for review of these offenders’ likelihood to re-offend, I think that offenders who qualify can and should begin filing petitions with the circuit courts asking for removal from the monitoring requirement.

 

 

State v. Binarr – actual notice of change in the law is required

In State v. Binarr, decided May 12, 2012, the S.C. Supreme Court held that actual notice of a change in the sex offender registry requirements was required before a person could be convicted of failure to register.  In this case, Binarr was given written notice that the next date he had to register was in one year; but soon after the law was changed to require registration twice a year.

Testimony by a Sheriff’s Office detective that notice of the change in the law was mailed to all sex offenders in the county, and that the letter mailed to Binarr was not returned as undeliverable, was insufficient to prove actual notice.  A letter that was sent certified mail was returned as unclaimed.

 

Under the circumstances of this case, where failure to register carries a mandatory jail sentence of 90 days, the liberty interest at stake is substantial and due process requires actual notice as opposed to constructive notice.

State v. Dykes – lifetime GPS monitoring is unconstitutional

In State v. Dykes, decided May 9, 2012, the South Carolina Supreme Court held that the imposition of lifetime GPS monitoring of convicted sex offenders, without regard to the likelihood of re-offending, violates substantive due process.  The majority opinion finds that persons have a fundamental right to be left alone, and the monitoring requirement under these circumstances fails the strict scrutiny test.  (If the right infringed upon is a “fundamental right,” a higher standard (“strict scrutiny”) is applied to determine if the law at issue is unconstitutional).

The concurring opinion finds that convicted sex offenders do not have a fundamental constitutional right to be left alone; nevertheless, lifetime GPS monitoring without judicial review to determine an individual’s likelihood of re-offending is arbitrary and still fails the lesser, rational basis test.  Further, it violates the right to privacy which is found in the South Carolina Constitution:

I believe the finding of arbitrariness is additionally supported by the South Carolina Constitution, which, unlike the United States Constitution, has an express privacy provision. See S.C. Const. art. I, § 10 (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated . . . .”). While our constitution’s privacy provision does not transform a purported privacy interest into a fundamental right for purposes of applying the strict scrutiny test, I believe it does inform the analysis of whether a state law is arbitrary and lends additional support to the conclusion that section 23-3-540(C) is unconstitutional. Cf. State v. Weaver, 374 S.C. 313, 649 S.E.2d 479 (2007) (holding that by articulating a specific prohibition against unreasonable invasions of privacy, the people of South Carolina have indicated a higher level of privacy protection than the federal Constitution).

It is interesting that the State argued on appeal that the sex offender registry is more invasive than GPS monitoring, and therefore GPS monitoring must be constitutional:

The State argues that the inverse is true and that it is the sex offender registry which is more invasive. In particular, the State points out that the registry provides the public with the offender’s full name, address, and offense history. Furthermore, the registry contains a photograph of the individual in addition to a physical description, complete with a list of tattoos and scars. In contrast, information obtained through satellite monitoring of that individual is limited to only the person’s location and is not available to the public.

So, if in the State’s opinion lifetime registry requirements are more invasive than GPS monitoring, yet GPS monitoring fails not only the rational basis test but also strict scrutiny, depending on which Justice you listen to, what does that say about lifetime registry requirements?

South Carolina has the most oppressive registry requirements in the country – lifetime sex offender registry without regard to the nature of the conviction or likelihood to re-offend.  A person convicted of statutory rape, who had consensual sex with a partner a few years younger than themselves, is treated the same as a person convicted of forcible rape of a child, is treated the same as a drunk convicted of indecent exposure.

And we want all to wear a monitor on their ankle, 24 hours a day, and prevent them from traveling, for the rest of their lives?  I suspect the supporters of the lifetime GPS requirement would just as soon support summary execution if they could color it constitutional.

The Citadel also ignored sexual abuse by staff

The Citadel military college in Charleston has revealed its own sexual abuse snafu, revealed on the heels of Penn State’s scandal. Louis Neal “Skip” ReVille worked for three years as a camp counselor at the Citadel, during which time he was “investigated” when a 14 year old camper reported that ReVille took him and another child into his room where they watched pornography and masturbated.

“We regret that we did not pursue this matter further,” Citadel President Lt. General John Rosa and Board of Visitors Chair Doug Snyder said in a statement.

Apparently they discovered during their investigation that ReVille had no history of arrests or complaints, and he “strongly denied the accusation.” So they did not pursue the matter further, and no charges were brought. Many people charged with weaker evidence than statements from two eyewitnesses/victims wish that avoiding criminal prosecution was this easy for everyone.
After graduating from the Citadel, ReVille was a principal at Coastal Christian Preparatory School and he coached sports for years at several area schools and recreation centers. Now he he has been charged with molesting five more boys in Mount Pleasant, South Carolina. The Citadel is releasing this information now because of media requests following the Penn State incident.

A bit more on Comstock

The NYTimes yesterday noted that Elana Kagan, Obama’s nomination for the USSCT, had argued in favor of the government in this case:

At the argument of the case in January, Solicitor General Elena Kagan, now President Obama’s pick for the Supreme Court, said the law was needed “to run a criminal justice system that does not itself endanger the public.” She said 105 people had been confined under the law.
Ms. Kagan pointed to the Constitution’s “necessary and proper” clause as granting Congress the power to pass the law, though the clause is not ordinarily thought of as a source of free-standing authority. The clause gives Congress the right “to make all laws which shall be necessary and proper for carrying into execution” its other powers.

Not a huge deal, I suppose. The fact that the USSCT approved the indefinite detention of persons deemed to be sexually dangerous is not a huge deal at this point either – the USSCT and every state supreme court opinion that I have seen have already upheld these statutes under Due Process challenges where it is the states that are detaining the offenders under state laws.
What makes this case different is that it is the federal government doing the detaining under federal law, and not the states. The decision is not significant for the fact that people are being detained indefinitely – that is old news – what is significant is the further broadening, or stamp of approval on breadth already taken by the Congress, of the federal government’s power to detain and hold citizens in jails. The states already have systems in place to evaluate and detain sexually violent predators, and the federal government does not belong in this arena.
Another thing that bothers me is that throughout the Comstock opinion the majority analyzes the issue as if they are discussing a criminal law, with criminal penalties for criminal conduct that has been committed. The state sexually violent predator laws have been upheld in part because they were not criminal penalties – they were civil statutes and the process was one of civil commitment (even though the offender remains in a detention facility in a prison cell) and therefore there was no double jeopardy issue. We are not punishing people in advance for crimes they have not committed, we are civilly committing people who are diagnosed as mentally ill and who have been found to be a danger to others.
The tone of Comstock seems to be A-OK with classifying indefinite commitment of sex offenders as a criminal penalty for crimes that have not yet been committed.

Graham and Comstock

Two important criminal defense related opinions were released by the USSCT today – Graham v. Florida and United States v. Comstock. Graham holds that sentencing a juvenile to life without parole is cruel and unusual punishment in violation of the Eighth Amendment, at least in a non-capital case. Comstock holds that the Necessary and Proper Clause of the Constitution gives the government the authority to incarcerate a sexually dangerous federal prisoner indefinitely, beyond the time that he was sentenced to.
There’s plenty of commentary out there already, so I’ll keep it short. Scott Greenfield thinks that the two decisions are irreconcilable:

There isn’t any way to reconcile these decisions, as the thread between them seems never to meet. Yes, children should not be treated as harshly as animals to appease the fear of adults who despise them from a distance. But even adults, even the mentally ill, even those who are so hated by society as to be deemed unworthy of our slightest consideration, are supposed to be worthy of an opportunity for redemption.
Taken separately, these decisions offer much to chew on. Taken together, they offer no coherent penal philosophy. Taken that they come from the same court, they offer no clue what we stand for.

I disagree. All analysis aside, looking at the bare facts on the surface of each case, we have 1) children being locked up for life sentences; and 2) bad terrible sex offenders who could hurt children if we let them out of their cages. Law enforcement, legislators, and appellate courts follow the thinking and sentiment of the public-at-large, and the rationale behind each case can be summed up with one simple statement: “Think of the children . . .”
More commentary at A Public Defender, Gamso for the Defense, and Liberty and Justice for Ya’ll.

Addition of sex offender conditions to probation

In State v. Hicks, decided May 3, the S.C. Supreme Court denied Hicks’ appeal from the addition of sex offender conditions to his probation on grounds that there were two additional grounds for HIcks’ revocation that his attorney did not appeal.
Hicks pled guilty to ABHAN (assault and battery of a high and aggravated nature) and was sentenced to ten years suspended to time served, five years probation, and registration as a sex offender. His probation was later revoked 90 days and the court ordered that Probation, Pardon, and Parole’s sex offender conditions would be added as conditions of his probation.
The sex offender conditions of probation are burdensome and extreme, and I don’t see where a court can or should add such terms at a later term of court, essentially modifying the defendant’s sentence after the fact. The defendant here was sentenced in 2005, the probation department added the sex offender conditions in January 2006, and the Circuit Court added them to the defendant’s sentence in May 2006.
The Court of Appeals did not answer the question, holding that the issue of the addition of the sex offender conditions at the revocation hearing was not preserved because it was not ruled upon by the Circuit Court; and here the Supreme Court has also dodged the question by holding that they cannot hear the appeal because defendant did not raise all grounds for revocation.
I believe, because of the extreme requirements in the sex offender conditions of probation, that this is not different than the case of State v. Davis, where the Court of Appeals reversed the Circuit Court’s addition of the sex offender registry to the defendant’s sentence during a probation revocation hearing – although the sentencing judge can order order placement on the sex offender registry for good cause following a conviction of ABHAN, a probation revocation judge at a later time does not have the authority to modify the sentence and add sex offender registry as a condition.

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