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June 3, 2013

Upon second thought, split South Caroline Supreme Court (sort-of) upholds mandatory lifetime GPS monitoring for sex offender

In this post just over a year ago, I noted that the South Carolina Supreme Court issued an interesting (and somewhat confusing) ruling in SC v. Dykes which declared unconstitutional some apsects of state law concerning GPS tracking of sex offenders.  Then, in this post from last September, I noted on the rehearing of this case by South Carolina Supreme Court.  And now, thanks to this new post at The Volokh Conspiracy, I have discovered that a new Dykes decision was handed down last week. 

The ruling is available at this link, and here is how the majority opinion now gets started:

Jennifer Dykes appeals the circuit court's order requiring that she be subject to satellite monitoring for the rest of her life pursuant to sections 23-3-540(C) and (H) of the South Carolina Code of Laws (Supp. 2011).  We affirm as modified.

Section 23-3-540 represents a codification of what is commonly referred to as Jessica's Law. Many states have some version of this law, which was enacted in memory of Jessica Lunsford, a nine-year-old girl who was raped and murdered by a convicted sex offender in Florida. Across the country, these laws heightened criminal sentences and post-release monitoring of child sex offenders. The specific issue presented in this case concerns the mandate for lifetime global positioning satellite monitoring with no judicial review. The complete absence of judicial review under South Carolina's legislative scheme is more stringent than the statutory scheme of other jurisdictions. A common approach among other states is either to require a predicate finding of probability to re-offend or to provide a judicial review process, which allows for, upon a proper showing, a court order releasing the offender from the satellite monitoring requirements. See generally, N.C. Gen. Stat. Ann. § 14-208.43 (West 2010) (providing a termination procedure one year after the imposition of the satellite based monitoring or a risk assessment for certain offenders). While we hold that the statute's initial mandatory imposition of satellite monitoring is constitutional, the lifetime requirement without judicial review is unconstitutional. 

A lengthy dissent to this notable new version of the Dykes ruling gets started this way:

Because I believe Dykes' status as a sex offender does not diminish her entitlement to certain fundamental rights, I would hold section 23-3-540(C) is unconstitutional because it is not narrowly tailored. I express no opinion on the constitutionality of section 23-3540(H) because that subsection was never challenged and is thus not before us.  Dykes' argument is, and always has been, that subsection (C) of 23-3-540 — the provision requiring lifetime satellite monitoring for persons who violate a term of probation and were convicted of committing criminal sexual conduct with a minor in the first degree or committing or attempting a lewd act upon a child under sixteen — violates her substantive due process rights by imposing monitoring without any showing of her likelihood to reoffend.  By invalidating a statutory provision not challenged, the majority ignores those settled principles of error preservation and appellate jurisprudence, and awards Dykes a consolation prize she has never requested and arguably has no standing to accept.

Prior related post:

June 3, 2013 at 06:54 PM | Permalink

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Two major hits on freedoms in one day. First SCOTUS allowing DNA swipes on anyone SUSPECTED of a crime, now a non-judicial lifetime requirement for GPS. Not noted is the fact she has to pay $12 per day for the rest of her life for this privilege. In addition, she is never allowed to leave the state for the rest of her life.

Excessive? You tell me. GPS has created more situations where criminal molestations may occur, as resources directed to monitoring GPS offenders are diverted from other more pertinent preventive measures.

This should go to SCOTUS, though I was stunned when both Alito and Thomas deferred to anti-constitutional decisions with regard to the DNA decision, so I'm not sure.

Posted by: Eric Knight | Jun 3, 2013 10:42:20 PM

Would be a cold day in hell before i did any of that if not under a legal court ordered prison sentence. Plus sorry i don't consider LIFETIME SUPERVISON ordered by a govt fucktard legal!

all these orders would do in my case is get a lot of little govt fucktards removed in a desperate attempt to improve the IQ and gene pool of the planet!

Posted by: rodsmith | Jun 4, 2013 12:36:31 AM

Why is it OK for the government to continually badger sex offenders? They have done their prison time, probably paid restitution, probably are on some sort of supervision for years if not life, are limited in where they can live, work and play. Now the government wants to GPS track them forever and have them pay for it as well! Seems this is one of the last groups that it's OK to discriminate against. And the term "sex offender" has really got to go! It paints a broad brush stroke over everyone from the public urinater to the most serious molester, and for some reason, that seems to be OK with society.
What a world, what a world.

Posted by: kat | Jun 4, 2013 9:36:28 AM

Laws like this life-time monitoring of somebody who has already COMPLETED her or his sentence (as opposed to somebody who is on parole/probation for a still un-completed sentence) sets a dangerous Stalinist-like precedent where government can acquire the powers of dictatorship by monitoring anybody whom it dislikes.

Secondly, this type of post-sentence stigmatization could endanger law enforcement personnel and the general public safety if such a penalty breeds contempt and defiance towards this law by the ex-sex offenders involved. One day, several former sex offenders might get the notion to band together like the Black Panthers did during the race riots of the 1960's and early 1970's to form radicalized political self-defense groups. That could mean a possible revival of the serious inner-city strife that this country has not witnessed in over forty-five years. It is something to think about.

Posted by: william r. delzell | Jun 4, 2013 9:39:41 AM

Eric,rodsmith, kat and william:

What is really frightening is that so many people see nothing wrong with the use of these stalinist tactics (at least no one can accuse me of invoking Godwin's Law). I would like to see these people try to use an electronic tether for 6 months before they open their mouths. You pay $12/day (for life), you need to keep the unit charged (thus the need for a working AC source every 12 hours for several hours - power outages are not an excuse), they make many mistakes (if you don't believe this I have a bridge to sell you) and the occurrence of any of the preceeding events can put you back in prison, or cost an arm and a leg for a lawyer for court time, eventually if you are lucky. All of this C--P for no real, established benefit, just to demonstrate that you can HATE the right people - by a label and not necessarily by what they have done.

America has gone to HELL in a hand-basket, and BOTH liberals AND conservatives are leading the way. Hell we are worse than fiscally broke, we are morally and intellectually bankrupt. Thank the government!

Posted by: albeed | Jun 4, 2013 10:46:31 AM

albeed - I agree with you 100%. This country is completely and utterly BROKEN !!

Posted by: Jill | Jun 4, 2013 6:35:15 PM

When I think "Stalin," I think monitoring convicted sex offenders.

This sort of label inflation leads to problems when torture or something is up. If this is "Stalinist," we basically have to think something worse. Pol Potist? Monitoring is more Eastern German, probably. There was even a very good movie on that sort of thing. Stalinist more is killing people, I think. The judicial review portion probably isn't Stalinist either.

Anyway, this is overkill. There should at least be some sort of time limit though didn't help she violated her probation.

Posted by: Joe | Jun 4, 2013 10:16:24 PM

well albeed your nicer than I am. I'd like to simply shoot anyone involved in passing and supporting this illegal shit!

and William trust me if those evil sex offenders. You know a group that includes military including special forces, govt security agents of all stripes including the former head of ICE in florida LOL, scientists and so on. if only 10% of them decided to go out with a bang. the fuckups running this country would be dreaming of the good old days of ali quada!

Posted by: rodsmith | Jun 4, 2013 10:43:55 PM

:: kat :: "Why is it OK for the government to continually badger sex offenders...track them...have them
pay for it...discriminate against."

Women play into the deadly and torturous hands of charming sex offenders.
Your words imply psychological denial and are suggestive at least of the sort who marry convicted serial killers,
and at worst who abide their boyfriends molesting their daughters.

Don't allow evil men to take advantage of your God-given forgiving, maternal instinct and nurturing nature, like some.

[P.S. David Renz's mother (NY) didn't view his GPS kindly.]

Posted by: Adamakis | Jun 5, 2013 12:09:59 PM


‘He’s no demon’
Ex-Whitey Bulger flame defends alleged killer
By BRIAN MCDONALD
"Is James “Whitey” Bulger, who’s about to stand trial for 19 murders, really just a big softy?

Lindsey Cyr is the mother of Bulger’s only child, a son named Douglas, who died at the age of 6:
They made him out to be a demon,” Cyr says of the show. “That’s not the Jimmy I knew.”

And what about the grizzly charges he faces? “I don’t believe them,” Cyr says. -- www.nypost.com

Posted by: Adamakis | Jun 5, 2013 12:11:15 PM

Adamakis:

It's 12:40 PM. Time for your meds!

Posted by: albeed | Jun 5, 2013 12:39:32 PM

kat (Jun 4, 2013 9:36:28 AM):

You said, "And the term 'sex offender' has really got to go!" I completely agree but if you believe that, why do you use it? In the first sentence of your post you used it exactly as the terrorists do.

It is a term that has to go. That term is a weapon of the criminal regimes and terrorists. It is a weapon of hate. The only semi-legitimate excuse that I can see that a person might have for using it is that they are lazy and it is simply a convenient term.

There is certainly no validity to the term. If there were, I could pick any past behavior that a person has done and call the person that forever. I could call most people "liar" for their entire lives. The only criteria would be that the person had lied.

The term that I have read that I like the most is "PRHH" - Person Registered for Harassment and Hatred. I feel it most accurately concisely captures the essence of the Registries.

Posted by: FRegistryTerrorists | Jun 6, 2013 11:29:28 AM

As for the manner by which you pervert the use of the word, "terrorist":
"There is certainly no validity to the term."

Posted by: Adamakis | Jun 6, 2013 6:58:42 PM

Adamakis (Jun 6, 2013 6:58:42 PM):

Just as there is a gradient to people listed on the Registries, what the terrorists call "sex offender", there is a gradient to the terrorists.

Obviously some of the Registry Terrorists kill registered people. So I'm going to go ahead and call them "terrorists".

I'm also going to call the "adults" who harassed my young children, called them names, and shunned them, "terrorists".

I'm going to call the people in the criminal regime that showed up at my home that I own and tried to force my family out of it, "terrorists".

And what the heck, I'm going to call the thieves who are trying to steal public parks, beaches, etc. and the right for people to live where they want, "terrorists".

So there's also a gradient to "terrorist" and even though not all the terrorists are murderers, etc., it's a completely appropriate and valid term for almost all of them.

Posted by: FRegistryTerrorists | Jun 7, 2013 4:58:03 PM

not bad FR but you did get one wrong!

"I'm going to call the people in the criminal regime that showed up at my home that I own and tried to force my family out of it, "terrorists".

these are not "terrorists" they are simply "DEAD MEAT" awaiting a open hole in the ground!

at least if tried at MY house!

Posted by: rodsmith | Jun 7, 2013 11:39:49 PM

rodsmith (Jun 7, 2013 11:39:49 PM):

Well, of course, there are so many more reasons why they are terrorists, those are just a few. Here's another good one that I read just this morning: "According to the California Sex Offender Management Board, the number of homeless registrants rose from 88 to 6,012 in the five years after Jessica's Law was enacted." Yeah, that's all about public safety. Lying scum.

Anyway, you and I have talked about this before and I realize that you were talking about yourself personally but in general I don't feel it is productive for Registered people to shoot criminal regime employees who come to their door. I understand the sentiment but I just don't see how much good could come of it. Also, I do believe that most law enforcement people are criminals or one breath away from it, but some of them are decent people. Their job is a good idea, there are just so many terrible people in it. I don't want to see good people hurt.

I don't want Registered people to shoot people and end up in prison for life or dead. I want Registered people to win and to me that means living a life that is better than the terrorists do. Shooting people won't help that.

I do think that every person who is listed on a Registry should make their homes inaccessible to people who are not invited. That usually means putting a great fence or wall around their property but of course there are many other scenarios. The beauty about having a wall around your property is that if people still can't stop harassing you and get inside of it, then you have a lot of leeway about what happens.

Every day, Registered people should ensure not only that the Registries, etc. are worthless, but much worse.

Posted by: FRegistryTerrorists | Jun 10, 2013 5:14:33 PM

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