May 9, 2012
South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds
The South Carolina Supreme Court has a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender. The ruling in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here), is a bit hard to figure out: the first opinion seems to announce the opinion for the court, but then a footnote at the state of Justice Hearn's opinion states that "[b]ecause a majority of the Court has joined the separate concurring opinion of Justice Kittredge, his concurrence is now the controlling opinion in this case." I will quote the first paragraph from both opinions in the case, because they both are noteworthy, starting here with the opinion of Justice Hearn:
Jennifer Rayanne Dykes appeals the circuit court's order that she be subject to satellite monitoring for the rest of her natural life pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010). She lodges five constitutional challenges to this statute: it violates her substantive due process rights, her right to procedural due process, the Ex Post Facto clause, the Equal Protection Clause, and her right to be free from unreasonable searches and seizures. We hold the mandatory imposition of lifetime satellite monitoring violates Dykes' substantive due process rights and reverse and remand for further proceedings.
The very lengthy opinion by Justice Hearn, which apparently garnered only two (of the five) votes on the court, is thereafter followed by a shorter opinion by Justice Kittredge which starts this way:
I concur in result. I commend my learned colleague for her scholarly research, and I agree with the majority's general proposition that persons have a fundamental right "to be let alone." But I respectfully disagree that Appellant, as a convicted child sex offender, possesses a right that is fundamental in the constitutional sense. I do not view Appellant's purported right as fundamental. I would find Appellant possesses a liberty interest entitled to constitutional protection, for all persons most assuredly have a liberty interest to be free from unreasonable governmental interference. I would find that the challenged mandatory lifetime, non-reviewable satellite monitoring provision in section 23-3-540(C) is arbitrary and fails the minimal rational relationship test.
Long story short, it appears that all members of the South Carolina Supreme Court have concluded that the mandatory lifetime satellite monitoring now required by stature in South Carolina for sex offender Jennifer Rayanne Dykes is unconstitutional. (I mention the full name of the defendant in this case because I cannot help but wonder, yet again, if the defendant's gender may have played at least an unconscious role in this notable outcome. I do not think it is implausible to at least suspect this case might well have come out another way if the the defendant was named Johnny Rex Dykes.)
I have not kept count of how many states are like South Carolina in requiring lifetime GPS monitoring of many sex offenders, but I am pretty sure this ruling could (and should?) have ripple effects in at least a few other jurisdictions. I am also sure that both constitutional scholars and those interested in the intersection of modern technology and criminal justice doctrines ought to check out the Dykes opinions.
May 9, 2012 at 06:20 PM | Permalink
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Posted by: Grant | May 9, 2012 7:13:35 PM
Posted by: federalist | May 9, 2012 7:35:58 PM
It strikes me as very odd that the South Carolina Supreme Court couldn't manage to get the opinion lineup right. Flipped votes that require turning would-be majority opinions into concurring opinions occur frequently enough that an appellate court should be able to handle it smoothly.
That said, the majority "concurring" opinion, though it reaches a correct result, is (embarassingly?) sparse on reasoning. Its brevity does a disservice to stare decisis. The opinion is a blank slate that says only whatever the court decides it means in the next case. In the meantime, lower courts will just have to guess as to how it might apply in other factual circumstances.
Posted by: SC Esq. | May 9, 2012 8:10:51 PM
I think the best way to look at the opinions is to see a court that is unanimous on the judgment and unanimous on the reasoning for the most part but disagree only on a detail. How important that detail turns out to be in other factual circumstances is an open question. But I think it's a little much to say the the lower courts are now left with a "blank slate".
Posted by: Daniel | May 9, 2012 8:57:40 PM
I see your point. But, I don't agree that the two opinions disagree on a minor detail. Justice Hearn's opinion concludes that the restriction implicates a fundamental right that triggers strict scrutiny (i.e., the right to be free from governmental monitoring unless narrowly tailored to meet a compelling governmental interest) . Justice Kittredge's opinion concludes that no fundamental right is implicated and, thus, rational basis review applies (i.e., that there is no fundamental right to be free from governmental monitoring -- even for a sex offender who is unlikely to reoffend -- so the statute fails only if it is arbitrary). Given that the decision to apply strict scrutiny versus rational basis review often dictates the ultimate result (though not in this case), I think that this is a fairly significant point of disagreement.
It seems to me that when the court says the legislature acted arbitrarily and had no rational basis for enacting a statute, it should at least address some of the potential bases for why it was enacted. In this case, for example, the legislature might have determined that lifetime monitoring was desirable for the same reasons that sex offenders are required to stay on the registry for their entire lives -- because every offender presents some likelihood of re-offending, even if that likelihood is quite low. That's not a good basis in my opinion, but it's plausibly a rational one that could have motivated the legislature. And that's all that would be required. Like I said, I think both opinions get the result right, and I think that the legislature acted capriciously, but Justice Kittredge's opinion should have addressed questions like this.
Posted by: SC Esq. | May 9, 2012 10:12:48 PM
I mistakenly characterized your comment as seeing the disagreement as a "minor" detail. My apologies for that, though I do think that this fundamental right/liberty interest distinction is very important. Maybe I've addressed my own concern: the guidance to lower courts is that rational basis review applies and that every other sex offender restriction passes muster, unless you're the Supreme Court and can invalidate a statutory scheme based on ipse dixit.
Posted by: SC Esq. | May 9, 2012 10:21:51 PM
Need to revive the hole sex ofender law, after 10 years you should be taken off the regester.
Posted by: ED/offender | May 9, 2012 11:38:54 PM
knowing south carolina i suspect that any discount given ms. dykes for being a woman was offset by the victim of her offense being a girl. often homosexual acts with teenagers are punished more severely than sexual intercourse even though sexual intercourse represents a much more obvious danger to a teenaged girl since as far as i know no 26 year old woman ever got a 14 year old girl pregnant.
if you ask me the case to impose severe community restrictions such as gps tracking is much stronger for the female icky perv than the male icky perv because the type of surgical incapitation that i favor for male incky pervs is not available for the female icky perv. in this case, we have a female icky perv who almost immediately following her relesae violated several conditions of her probation - basically she has proven that she is a danger to society even if she is not considered a special danger to teenaged girls.
although i do have to ask what south carolina is thinking in making it mandatory to track someone for life with gps for committing a consensual sexual act which isn't sex with a teenager but making it optional to track offenders convicted of producing child pornography or child prostitution offenses. a law that stupid deserves to be struck down no matter how meritorious the idea - and i obviously support the gps tracking of all icky pervs.
Posted by: Erika | May 10, 2012 10:01:49 AM
Bottom line to the judges thinking process:
"Plaintiff obviously is being violated constitutionally in a blatant manner, but OH! I hate sex offenders; the vast majority of the public hates sex offenders; we can't be soft on sex offenders, so let's give them as little reprieve from this decision and use the explanations to further denounce them."
Posted by: Eric Knight | May 10, 2012 11:11:44 AM
It might be that the opinion was written and then a vote or two changed requiring the late footnote and it was felt it was too late or unnecessary to change a major opinion to address the point. The strip search case in the USSC according to some accounts might be of this caliber, two justices providing a moderating interpretation that made the bottom line a bit confused.
I would need to know more about SC policy and rulings to suggest that the gender of the litigant mattered here, but it might have, at least on a "this is a safer case to express a ruling" level. The breadth of the sanction underlines how hunting witches can lead to excesses. "Mandatory lifetime" practices seem to be looked upon on disfavor in more than one area these days.
I would add, somewhat contra to my comments in that thread, even the lifetime probation ruling is questionable, at least the length of the whole thing. Flexibility at times is seen as the path to arbitrary behavior in this field, but in real life, it is the reasonable path in most cases. Things change.
Posted by: Joe | May 10, 2012 12:27:40 PM
We turn next, as we must, to whether Dykes' status as a convicted sex offender alters this result. Although the concurrence believes it does, we disagree for the reasons below. The State first argues that satellite monitoring is akin to sex offender registration and is, indeed, less intrusive than registration. Numerous courts, including this Court, have routinely held that convicted sex offenders do not have a fundamental liberty interest to be free from registration requirements. [citation omitted] However, a requirement that a person register is qualitatively different than a requirement that a person submit to mandatory satellite monitoring of his location for the rest of his life. 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.
Posted by: Rock and a hard place | May 10, 2012 2:58:49 PM
got to love the little liers!
" Numerous courts, including this Court, have routinely held that convicted sex offenders do not have a fundamental liberty interest to be free from registration requirements. [citation omitted] However, a requirement that a person register is qualitatively different than a requirement that a person submit to mandatory satellite monitoring of his location for the rest of his life. 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."
The two-faced little nazi's don't bother to tell you that she is LEGALLY REQUIRED to do BOTH!
Posted by: rodsmith | May 10, 2012 10:33:06 PM
I am surprised that anyone has challenged an SC SO law. Which begs the question? What the hell is wrong with the residents and legal professionals in SC? Georgia had some of the toughest legislation, including lifetime registration, and they are now one of few states [including NC] that actually give some offenders an opportunity to get off the list.
SC has a Tea Party Governor and has been controlled by the red coats for quite some time. I find it odd that they are legislating lifetime GPS tracking with some $56,539,512,000 total debt [including pensions, etc]. Lifetime tracking would have applied to the majority of SC's SO registrants.
Posted by: Truth | Jun 11, 2012 10:12:58 PM
QUESTION WAT IF U GOTTA REGISTER FOR SOMETHING U DONE WHEN U WAS 14YRS OLD AND EVEN WHEN U TURN 34 U STILL GOTTA REGISTER AND STILL BE FORCE TO HAVE GPS ON UR LEG WERE IS EQUAL RIGHT IF THEY PAID WHEN THEY WAS 14 THEN Y COTENUIE TO PUNISH AND PUBLIC EMBARSS A MAN FOR A CHILD HOOD BOO BOO U MAKE DA PUBLIC LOOK AT A PERSON SIDE WAYS IF HES NOT DA SICK MAN THEY CLAIM
Posted by: TJJERIDO | Jul 3, 2012 5:40:04 AM
GPS Car Tracking System is necessary in commercial or public sector, as with everything involving technology today, as quickly as you buy a system but before buying you should that What does a GPS car tracking system do? Well, it pretty much does what is says on the box. It enables you to track your car. The thing with today's systems is they can do so much more. Within your car, you will have a GPS navigation system .
Posted by: Car trackers | Jul 22, 2012 7:07:55 AM
WOW. truth.. im in the sam situation.. I would like to know the answer to that ques. as wel.. there is not one good answer.. u no why.. becus its big money in this predator...B.S they put every person under if they so much as pees in public.. Amerikkka is a shame and a mess. that is why I plan on leavin As soon as i get my money up. if u arent rich..weathly and full of cash out ur asz.. then u dont really matter.
Posted by: WOW.. | Sep 21, 2012 7:02:14 AM
I believe, that sexoffenders that have served their time, and gone and finished the programs, should beable to have their recordremoved. This is with the understanding, they have obeyed the law during this time. GPS..Expensive,and unconstitional.
Posted by: Ginger P | Oct 25, 2012 12:44:55 PM
I made a bad desion back in 1988 a sex crime . 26 years latter never a nother crime like that . Their is no chance it will happen again .It is not me. I am forgiven by God. I am new. But to all you so called Christians that are codeming people for life shame on you you must have forgotten why jesus died on the cross
Posted by: joe t | Jul 18, 2014 9:02:41 PM