Lifetime Sexual Offender Registration without Judicial Review Violates Due Process. Powell v. Keel, Appellate Case No. 2019-001063 (S.C. Supreme Court, filed 6/921).

This is an enormously important case that, I suspect, will have implications beyond our little triangular borders.  Our Supreme Court has held that lifetime registration for those convicted of sexual offenses, without an opportunity for a judge to assess the risk of re-offending, violates an offender’s rights to due process, as protected by both the federal and our state constitutions.

In reaching this result, the Court agreed with the Respondents’ claim that the registration requirement under our state sex offender registry law (“SORA” or “South Carolina Sex Offender Registry Act”) implicates protected liberty interests.  The Court, earlier, had addressed these liberty interests in a related case involving the lifetime duration of satellite monitoring for convicted sex offenders.  In that case, State v. Dykes, 303 S.C. 499, 744 S.E.2d 505 (2013), the Court held that “lifetime imposition of satellite monitoring implicates a protected liberty interest to be free from permanent, unwarranted governmental interference.”  Id. at 506, 744 S.E.2d at 509.  The Court applied rational basis review and held that the initial imposition of the monitoring was rationally related to the General Assembly’s stated purpose.  But it is the continued monitoring, without an opportunity for re-assessment that the Court held was arbitrary and not rationally related to those purposes.

The same analysis is applied here.  There’s no question but that the sex offender registry passes constitutional muster.  There are legitimate reasons to have such a registry in place.  But the lifetime registration requirement without any opportunity for judicial review, similarly, lacks any rational basis to the General Assembly’s stated intention of protecting the public from those who have a high-risk of reoffending.

The Court noted that there was no evidence in this record to show that all sex offenders generally pose a high risk for reoffending (likely because that myth has been fairly roundly debunked over the past few decades).  The Court also remarked that the current system is over-inclusive, which tends to dilute the value of the registry in the first place.  As someone who witnessed a homeless man who urinated in public placed on the sex offender registry many years ago, I tend to agree.

The Court has now placed the issue back into the General Assembly’s hands.  The GA is now charged with the development of a meaningful judicial review process to bring the current system into constitutional compliance.  The Court suggests that the process employed in this case, which re-assessed an offender’s risk of reoffending after 10 years, satisfies due process.

So, this is huge, people.  Allowing offenders an opportunity to be removed from the sex offender registry will go a long way towards helping these people reintegrate back into their communities.  Sex offenders have long had to endure their scarlet letters, even when the research shows that many of these offenders do not reoffend.  Allowing for the individualized assessment of these offenders, going forward, will re-animate the usefulness of the registry in making it more manageable by only including those who need to be on it.