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.