Great News: One State at a Time Right?
In an astonishingly bold move the South Carolina Supreme Court ruled the state’s lifetime requirement to register as a sexual offender is unconstitutional and those who demonstrate a low risk of re offending may have their names purged with a judge’s permission.
A relevant excerpt from the SC Supreme Court order:
…Respondent [defendant] contends SORA’s lifetime registration requirement implicates protected liberty interests similar to those recognized by this Court in State v. Dykes, 403 S.C. 499, 744 S.E.2d 505 (2013). In that case, we considered a Fourteenth Amendment due process challenge to the lifetime duration of SORA’s satellite monitoring requirement. Id. at 502, 744 S.E.2d at 507 (citing S.C. Code Ann. § 23-3-540(C), (H) (2007 & Supp. 2020)). We determined 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. Applying rational basis review, we held the initial mandatory imposition of satellite monitoring is constitutional because it is rationally related to the General Assembly’s stated purpose in section 23-3-400 (2007 & Supp. 2020). Id. at 507–08, 744 S.E.2d at 510. However, we also concluded that “it is unconstitutional to impose lifetime satellite monitoring with no opportunity for judicial review” because the absence of such opportunity to assess a risk of re-offending “is arbitrary and cannot be deemed rationally related to the legislature’s stated purpose of protecting the public from those with a high risk of re-offending.” Id. at 508–09, 744 S.E.2d at 510. Similarly, we agree with Respondent that SORA’s lifetime registration requirement without judicial review violates due process. The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1; see also S.C. Const. art. I, § 3 (providing no person shall “be deprived of life, liberty, or property without due process of law”). Courts must “ensure that legislation which deprives a person of a life, liberty, or property right have, at a minimum, a rational basis, and not be arbitrary . . . .” In re Treatment & Care of Luckabaugh, 351 S.C. 122, 140, 568 S.E.2d 338, 346 (2002). When a fundamental right is not implicated, we require the law to be “reasonably designed to accomplish its purposes.” State v. Hornsby, 326 S.C. 121, 125–26, 484 S.E.2d 869, 872 (1997). We hold the lifetime imposition of sex offender registration implicates a protected liberty interest similar to the one we recognized in Dykes. Therefore, we must determine whether the requirement “bears a reasonable relationship to any legitimate interest of government.” Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, 430, 593 S.E.2d 462, 470 (2004).
…Moreover, there is no evidence in the record that current statistics indicate all sex offenders generally pose a high risk of re-offending. See Does #1-5 v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016) (noting the record provided “scant support for the proposition that SORA in fact accomplishes its professed goals” and that recent empirical studies cast significant doubt on the pronouncement in Smith that sex offenders’ risk of recidivism is “frightening and high”)….
…the registry fails to promote the State’s legitimate interest. We therefore hold SORA’s lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending….
…we require the hearings at which sex offenders may demonstrate they no longer pose a risk sufficient to justify continued registration be conducted with reasonable promptness and meet standards of fundamental fairness….
…Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA’s requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly’s stated purpose of protecting the public from those with a high risk of re-offending. Therefore, we hold SORA’s lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending….
Read the entire thirteen page opinion below and forward to your state and federal legislators.
Watch oral arguments here:
Other article on same: https://www.usnews.com/news/best-states/south-carolina/articles/2021-06-09/court-nixes-south-carolinas-lifelong-sex-offender-registry
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