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South Carolina Supreme Court: Lifetime SORA Registration Requirement Unconstitutional Absent Opportunity for Judicial Review of Risk of Re-offending

In an opinion filed June 9, 2021, the Supreme Court of South Carolina upheld a lower court ruling allowing a lower-risk sex offender to be removed from the registry because lifetime registration for low-risk offenders does not “bear[] a reasonable relationship” to the Legislature’s legitimate interest in protecting the public.

Dennis Powell, Jr. pleaded guilty to criminal solicitation of a minor in South Carolina on April 2, 2009.  He was sentenced to two years’ imprisonment which was suspended to one year of probation. He was also notified at sentencing that he would be required to register as a sex offender.

After approximately six years on the registry, Powell filed a petition in the circuit court, requesting, among other claims, the court order the termination of his responsibility to register on the ground that lifetime registration violates several constitutional rights, such as his right to due process.

After a hearing, the circuit court granted his motion on all grounds. The State appealed, and the appellate court transferred jurisdiction to the state’s supreme court.

South Carolina requires that any person convicted of a qualifying crime must register biannually for life with state authorities. S.C. Code Ann. § 23-3-430. Any person who fails to register may face criminal prosecution. § 23-3-470.

Powell asserted that the law requiring lifetime registration violates his rights and that failure to comply with the law exposes him to a loss of liberty. “No state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Constitution, Amendment XIV. “[L]egislation which deprives a person of a life, liberty, or property right [must] have, at a minimum, a rational basis, and not be arbitrary....” In re Treatment and Care of Luckabaugh, 568 S.E.2d 338 (S.C. 2002).

For this kind of constitutional right, the South Carolina Supreme Court requires the law be “reasonably designed to accomplish its purposes.” State v. Hornsby, 484 S.E.2d 869 (S.C. 1997). Thus, whether lifetime registration for offenders such as Powell survives judicial scrutiny depends on whether the requirement “bears a reasonable relationship to any legitimate interest of government.” Sunset Cay, LLC v. City of Folly Beach, 593 S.E.2d 462 (S.C. 2004).

Section 23-3-400 of the South Carolina contains a statement regarding the purpose of the state’s registration laws: “The intent of this article is to promote the state’s fundamental right to provide for the public health, welfare, and safety of its citizens.” It also states that “law enforcement’s efforts to protect communities, conduct investigations, and apprehend offenders who commit sex offenses are impaired by the lack of information about these convicted offenders....”

The state Supreme Court has previously recognized the state has a legitimate interest in requiring registration. In re Justin B., 747 S.E.2d 774 (S.C. 2013). It also upheld the initial mandatory imposition of satellite monitoring as part of the registration requirement. State v. Dykes, 744 S.E.2d 505 (S.C. 2013).

In reviewing whether the law requiring lifetime registration is reasonably related to the state’s legitimate interest in protecting its citizens, the Court reviewed recent research on the effectiveness of registries. It noted that “there is no evidence in the record that current statistics indicate all sex offenders generally pose a high risk of re-offending.” SeeDoes #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (“recent empirical studies cast doubt on the pronouncement from Smith v. Doe, 538 U.S. 84 (2003) that sex offenders’ risk of recidivism is ‘frightening and high’”).

Further, recent evidence has shown that requiring offenders to register, regardless of their risk of re-offending, makes registries less effective. See State v. Letalien, 985 A.2d 4 (Me. 2009) (noting “the catch-all scope of the [sex offender registration] statute’s application dilutes its utility”).

Since “a likelihood of re-offending lies at the core of South Carolina’s civil statutory scheme,” the Court determined that “the lifetime inclusion of individuals who have a low risk of re-offending renders the registry over-inclusive and dilutes its utility by creating an ever-growing list of registrants that is less effective at protecting the public and meeting the needs of law enforcement.” Thus, the Court held that the state’s “lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending.”

As for what comes next, the Court stated that it would leave it up to the state legislature to craft new laws outlining the process for judicial review of an offender’s requirement to register. It crafted similar legislation after the Court’s ruling in Dykes, in which it struck down the state’s use of lifetime GPS monitoring for some offenders, requiring lawmakers to outline a process for offenders to apply for removal from the location monitoring program.

According to Debbie Herring-Lash, a prosecutor who handles child sex abuse cases in Charleston, this ruling will make South Carolina’s registration scheme more similar to those in effect elsewhere. “The burden is on the person to show they’re not a risk,” she said. “The victim has a right to be heard in that process. It seems to work in other states.”

Accordingly, the Court upheld the circuit court’s order which immediately terminated Powell’s requirement to register, but it held off any wider application of its ruling until June 2022 to give the legislature a chance to act. See: Powell v. Keel, 2021 S.C. LEXIS 66 (2021). 

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Powell v. Keel



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