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.