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May 4, 2017

South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring

Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional."  The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."

Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring.  But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)

In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court.  As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:

The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders.  The requirement, therefore, is not unconstitutional.  If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts.  The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED

May 4, 2017 at 09:51 AM | Permalink


Former sex offenders in South Carolina have nothing to lose anymore by rising up against both registration and civil commitment laws. Hopefully, they can accomplish this uprising by non-violence. Let's hope that former offenders won't feel it necessary to use violence against those who enforce these unjust laws. But if one pushes a person around too much, that person can act like a caged lion pushed into a corner. Such a situation can cause the fear of an individual person turn into rage and anger at least on a temporary scale. Woe be onto those who push such a person to anger. This is like the Roosevelt quote after Pearl Harbor about a people being "slow to anger", but once angered, determined to fight back with all they got.

Posted by: william r. delzell | May 4, 2017 10:22:16 AM

Some day, the fiction that SORA is non-punitive is going to fall. The cracks are, I believe, beginning to show in the facade and lower court decisions are finally beginning to reflect what data and experience have been saying for years: that it's nothing more than brutal, high-tech, security theatre that demands human sacrifice. In some ways, I think it can be argued, a life sentence of imprisonment is more humane than a life sentence of registration. At least in prison nothing is expected of you other than to be a good ward of the state. On the outside, and on the list, you are saddled with all the expectations of every other man or woman, though with a two ton weight tied around your neck.

It is a civil death penalty, and that we impose it on anyone, let alone our children, should be to our collective shame.

Posted by: Guy | May 4, 2017 10:30:13 AM


There is no shame (nor sanity) among the judiciary when they can look at a bold-faced lie directly and claim with the solemnity of the executioner that registration (much less electronic monitoring), is strictly civil and non-punitive. This goes with the great legislative lie that re-offense rates justify this to keep us safe (safe - hah, a tyrant can keep you much, much safer, just play his/their game). The primary purpose of government has never been to keep us safe above all else, rather, it is to defend our HUMAN rights, not only those "rights" recognized in the Constitution. Put 2 and 2 together and you have a very corrupt government built on a foundation of lies.

When the piper is paid, as it must, all claims of how "great America and its system of government are" go out the window.

I already disrespect, only barely tolerate, my government and the legal profession which continue to perpetuate myths.

Posted by: albeed | May 4, 2017 12:52:01 PM

Once again illustrating that the distinction between "civil" and "criminal" punishments is a distinction without a difference. A punishment is a punishment, labeling one as "civil" and the other as "criminal" is merely wordplay to get around the Constitution rather than a means of shedding light on the situation.

Posted by: Daniel | May 4, 2017 2:02:05 PM

OK. This is regulation not punishment.

I am interested in the concept of regulatory quackery. If a regulation cannot be verified to be safe and effective, it violates Fifth Amendment due process, and is void. The burden must be on the regulator. The voiding of quackery is the royal road to eliminating 90% of regulations. Because most are motivated by rent seeking, they have an intentional, deceptive, and criminal intent. Regulatory quackery should itself be subject to criminal prosecution, fines, exemplary damages to the victims.

Posted by: David Behar | May 5, 2017 7:05:17 AM

Al said, "I...barely tolerate, my government and the legal profession which continue to perpetuate myths."

Al, it's the Mafia. The lawyer profession is organized and runs as a criminal cult enterprise. It has infiltrated the three branches and controls 99% of government policy making. We pity our South American friends, where drug cartels buy off government officials, and we say they have a lot of corruption. Yet, in our case the criminal cartel has taken our government, makes a $trillion a year, and has caused it to utterly fail. How will we get rid of them?

Posted by: David Behar | May 5, 2017 7:09:14 AM

From a sentencing standpoint, not sure that Roper controls--Roper doesn't say anything about non-incarcerative (now there's a word coinage) punishment.

As for wearing a monitor, um, that's punishment--saying it's not brings the judiciary into disrepute.

Posted by: federalist | May 5, 2017 9:37:21 AM

"The Legislature's purpose in the Sex Offender Registry Act is to protect our citizens---including children---from repeat sex offenders-

So S. Carolina's Supreme Court just "assumes" that everyone on the punative registry is a repeat offender.

How sad.

Posted by: kat | May 5, 2017 10:56:14 AM

Okay. A fifteen year old sexually assaulted a five year old.

The facts aren't pleasant reading (including the attempted anal sex) and a child was harmed in a particularly horrible fashion, but as with other bad acts, the legal result very well might be unjust. The teen here was convicted of "criminal sexual conduct." But, that might be a bit of a red herring.

The opinion noted that conviction isn't necessary to be labeled a "sex offender," "declared delinquent" cited separately from "convicted."* For good or ill, the US Supreme Court has separated the two as well. The net effect here as to labeling and monitoring might seem a distinction without a difference, but "criminal" from my understanding is something that requires a higher standing of proof.

And, quite a few "civil" penalties are quite intrusive. Confinement in a mental institution because you are deemed a threat to yourself and others isn't a "criminal" confinement -- surely not in various circumstances -- but that only is part of the equation. So, the opinion saying "non-punitive and therefore no liberty interest is implicated" is dubious without more.

But, I think there is some talking past each other here. The finding of "sex offender" was obtained as a result of a conviction, but again, he didn't have to be convicted of a crime to be so declared. The registration and monitoring is not in place as a punishment of the crime. Such is the court's judgment.

So, I'm not sure at least for purposes of criminal punishment how relevant Roper and Graham is. The teen here is also not being confined in a prison for the rest of his life. On some broader level, yes, I think his immaturity is relevant respecting the civil or criminal (however you phrase it) burden a life time sex registration and monitoring for an act at 15 years old. Some language in those cases & others would be relevant in that respect.


* "Section 23-3-430 provides any person—regardless of age—who is convicted or
declared delinquent for criminal sexual conduct with a minor in the first degree
must register as a sex offender."

Posted by: Joe | May 5, 2017 12:09:29 PM

An example came to mind.

Let's say there is a "civil" regulation in place that a finding of 'x' will result in removal of a driver's license. You need not be convicted of a crime. But, certain crimes very well might entail "x," so there is overlap.

The removal of the license for conviction to me might be like this case.

Posted by: Joe | May 5, 2017 12:20:41 PM

The irony is that neither Sex Offender Registries would have protected the little girls after which they were named. Megan opened the door to her neighbor. Jessica slept in her bed with her blue dolphin plush toy. Vicious, super predator, violent offender, serial killers were loosed on our children by the lawyer profession. The lawyer profession is 100% responsible for their takings, their rapes, and their painful and slow murders.

What would have protected them would be the beating of the lawyers that preserved the lives of the serial rapists and child killers that took them.

If anyone wants to protect a child, forget registries. Hunt a judge. Lash a judge. Do not kill them, since they will be replaced by grateful competitors. Shoot them in the knees, and tell them the next little girl taken by the sex offender they protect, privilege and empower, they will be beheaded.

If you want to fund a bunch of worthless tax sucking parasites in government, than start registries for every infraction, in all jurisdictions.

Posted by: David Behar | May 5, 2017 7:50:50 PM

Joe. All weasels must Register in the Lawyer Weasel Registry. Inform the police whenever a weasel changes address.

Posted by: David Behar | May 5, 2017 7:51:56 PM

I understand the judicial review mandate where monitoring is concerned, but this is apparently a complete reversal on the majority opinion on electronic monitoring in State v. Dykes [May 9, 2012] where the South Carolina Supreme Court held that lifetime GPS monitoring of convicted sex offenders, without regard to the likelihood of re-offending, violates substantive due process. In that opinion the court found that persons have a fundamental right to be left alone and that monitoring fails the strict scrutiny test. It further found that it violates the right to privacy, a right protected by the South Carolina constitution [Article I, § 10].

Posted by: Huh? | May 14, 2017 5:51:35 PM

kat: "So S. Carolina's Supreme Court just "assumes" that everyone on the punative registry is a repeat offender."

South Carolina is a welfare state that gets back more in federal dollars than paid in federal taxes. It also has the toughest sex offender laws on the books. Although it has what the Department of Justice considers a tier system, it's system consists of only a tier II and tier III, and both require lifetime registration.

Registrants would have better luck moving to a state like PA. The legal community has had better luck in it's Supreme Court than others in most states.


Posted by: Huh? | May 14, 2017 6:05:24 PM

I am a mother of a supervised sex offender for life and I feel this punishment does not fit the crime sort of speak, I feel that it is too harsh of a punishment because nothing should be forever but death, everything should be able to expire and have a point to start afresh again. or given a second chance at life. my son cant go anywhere he really like to go he feel he may as well be in prison where nothing is expected of him, he was a teenager now a 40 year old man with grey hair and a grey beard. It is wrong and I plan on fighting to change this law. I call for Megan's Law to be changed or rewritten. My son has changed and done his time and needs to feel some sense of freedom now.

Posted by: phyllis kinman | Jun 21, 2017 6:45:26 AM

if there is anyone who can assist me with this issue please contact me kinmanphyllis@gmail.com or 803 888 6181

Posted by: phyllis kinman | Jun 21, 2017 6:51:15 AM

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