Lifetime Registry for Sex Offenders is Unconstitutional, a State Supreme Court Rules

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Calling South Carolina’s law “the most stringent in the country,” the unanimous ruling requires the General Assembly to amend the policy within 12 months.

The South Carolina Supreme Court ruled last week that a law requiring sex offenders to register for life on a statewide list is unconstitutional, sending the policy back to the General Assembly for review.

In its unanimous ruling, the court said that the state’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 legislature’s stated purpose of protecting the public from those with a high risk of re-offending.”

Under the state’s existing policy, sex offenders are required to register for life in a public database that displays their name, address and photograph, regardless of the degree of their offense. Once enrolled in the database, offenders can be removed only if their conviction is “reversed, overturned or vacated on appeal and a final judgment has been rendered,” or if they receive a pardon that is based “on a finding of not guilty specifically stated in the pardon.” Beyond that, offenders have no legal recourse to seek removal from the registry.

The law states that the registry is necessary to provide law enforcement officers with ample information to “protect communities, conduct investigations, and apprehend offenders who commit sex offenses...who live within the law enforcement agency’s jurisdiction.”

Most states provide some option for offenders to petition for removal from the registry, generally based on the severity of their offense. South Carolina’s law, which does not include a similar provision, is “the most stringent in the country,” the court said in its opinion.

‘Low Risk of Recidivism’

The ruling, issued June 9, stems from a lawsuit filed in 2008 by Dennis Powell, who was arrested for criminal solicitation of a minor after engaging in “graphically sexual” online conversations with an undercover police officer posing as a 12-year-old girl as part of a sting operation. 

Powell pleaded guilty, served two years in prison, and has been on the sex offender registry “since his sentencing in 2010 and has not been arrested for any offense in that time,” according to the ruling. Both a licensed professional counselor and a licensed psychologist determined that Powell has a “low risk of recidivism.” 

But the state’s database does not take that risk into account, the court said, which renders it “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.”

The ruling requires the General Assembly to change the law to allow for “hearings at which sex offenders may demonstrate they no longer pose a risk sufficient to justify continued registration.” The justices gave lawmakers 12 months to make the change, with the ruling set to take effect next June.

In a statement, Jarrod Bruder, executive director of the South Carolina Sheriffs’ Association, said the organization was still reviewing the court’s decision but would “welcome the opportunity to work with the General Assembly to provide legislative remedies to these concerns in the near future.”

“We must implement a solution that upholds a careful balance between public safety and an individual’s right to due process,” he said. 

Kate Elizabeth Queram is a senior reporter for Route Fifty and is based in Washington, D.C.

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