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.

3 Responses to “State v. Dykes – lifetime GPS monitoring is unconstitutional

  • Mr. stancil
    7 years ago

    I’m wearing lifetime gps, my charge lude act on a child nder 16, I was 18 , we both were fully clothed , I was questioned by an investigator and charged on my words only, no victim statement needed. I pled guilty. I currently have a case going to supreme court, trying to get my gps monitor removed. I do believe that some would have us all sentenced to death, or life imprisonment. However cases are rarely looked at individually, we all get punished for the class of charge rather then the extent of the actual crime. It took under a min to do the crime. I have no prior record and I did a five year prison sentence and 3and 1/2 years on probation and violated for failure to complete counsel, and now mandatory lifetime gps. Wow! What a ride! Where is the justice!

  • lambright
    7 years ago

    My son was the 1st to be convicted in SC law as a juvenile.He was 15 y/o at the time.He was convicted of lewd act on a child non violent. He has spent 3 yrs in a treatment facility and is on parole till he is 21.Also he has to wear a gps and register the rest of his life.During the years he was locked up they pretty much made him the guinea pig for this law.After he went to 4 foster families to be reoriented to the outside again then came home.Then he was arrested again and put in lock down until the attorney general deems that he was a non violent or violent predator.which took months and months were they just dragged there feet.All during this process we had numerous people unable to answer questions about this jessica law in the sc system.My boy never got into trouble before this.no drugs alcohol,was a straight a honors student.The only thing was he had it done to him when he was 5 y/o.But now SC wants to punish him the rest of his life? Didnt any of you ever do anything as a child that you regret?? SC should have rules for juvenile and adult sexual crimes.My boys life is finished before it got started.What is the gps for? you already got a registry…How about putting gps on drunk drivers .drug dealers and gangs????? where is that law????? My boy regrets what he has done he even threw up after he done it.Kids do make mistakes .What about that girl that hit and killed that person in murrels inlet..Why didnt she have to pay with her life?? She killed someone..No what it is is that money and roots talk in SC and the others get life…

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