Big questions that bubbled up in the wake of the South Carolina Supreme Court’s first ruling on the constitutionality of satellite monitoring have been answered in a second recent decision, though a few unknowns remain.
When the court initially weighed in on State v. Dykes last May, it created widespread confusion about how the holding was going to be interpreted by the state’s trial judges. The most serious issue was whether the broad decision overturning mandatory lifetime monitoring could be applied retroactively to sex offenders throughout the state who wear GPS monitors.
Under the law, offenders convicted of first-degree criminal sexual conduct with a minor or lewd act on a child were automatically placed on lifetime monitoring and could never go to court and argue to have their GPS devices removed, regardless of whether they posed a low risk of offending again.
For lower-level sex offenders, the law gives the courts discretion when ordering monitoring. And unlike the higher-level offenders, these offenders can argue for the removal of their GPS devices after 10 years.
The ambiguous ruling in Dykes had some defense lawyers preparing for calls from all types of sex offenders looking to be freed of their monitoring devices, while officials at the S.C. Department of Probation, Parole and Pardon Services worried about how they were going to deal with all the potential hearings on petitions for removal.
But in Dykes part two, the court on May 22 narrowed the scope of the first opinion, rendering the question of retroactivity moot, said Greenville public defender Christopher D. Scalzo, who represented Jennifer R. Dykes in her appeal.
This time the majority upheld the mandatory monitoring provision for higher-level offenders, but found that it was unconstitutional to deprive them of having the same right as lower-level offenders to petition for the removal of their GPS devices after a decade.
“What this does is it places offenders who have GPS monitoring in the same category,” Scalzo said. “Everyone gets the same review.”
The modified ruling affects 140 of the 463 people who are currently under GPS monitoring. Because the law is relatively new, none of them will be eligible for removal hearings until 2017, said Matthew C. Buchanan, general counsel for the state’s probation and parole department.
“I would imagine it’s not going to be a special amount of work,” Buchanan said. He added that offenders will have the burden of asking the courts for removal when their time comes and of proving that they pose a low risk of re-offending.
But Buchanan was unsure how his department would handle offenders who are off probation and still wearing tracking devices, a situation that would arise any time the probationary period expires before the 10-year review date.
“There are some questions about lifetime enforcement,” he said. “What if they move to another state or country? How would we track these people?”
‘Orwellian nightmare’
In her dissent, Justice Kaye G. Hearn contended that the mandatory monitoring provision of the law was unconstitutional because it cast too wide a net, violating the privacy rights of defendants like Dykes who are automatically fitted with tracking devices without any consideration of their likelihood to re-offend.
“In my opinion, safeguarding against this Orwellian nightmare falls squarely within the ambit of fundamental precepts embraced by the drafters of the Constitution,” wrote Hearn, who was joined by Justice Donald W. Beatty.
Hearn also said the majority erred by invalidating a portion of the law, the no-review provision, that Dykes had not challenged. The majority had awarded “Dykes a consolation prize she has never requested and arguably has no standing to accept,” she wrote.
While Scalzo agreed with the overall dissent, he believed the mandatory monitoring requirement and no judicial review provisions were entwined. But like Hearn, he took issue with the majority apparently ignoring the undisputed fact that Dykes, who had sex with a 14-year-old girl when she was 26, had been found to have a low risk of re-offending.
“How can you say that she should continue to be on monitoring while she poses a low risk? How did that pass a rational relationship test?” Scalzo said, referring to the majority’s determination that the legislature intended to protect the public and not punish sex offenders when it enacted lifetime monitoring.
Based on that analysis, Justice John W. Kittredge found that mandatory tracking did not violate the fundamental constitutional rights of Dykes and other sex offenders, but then concluded that lifetime monitoring without review still “implicates a protected liberty interest to be free from permanent, unwarranted governmental interference.”
As for Dykes, it will be another four years before she’ll have a chance to shed her GPS device. In the meantime Scalzo, her attorney, said this decision might have set the stage for a new constitutional battle.
“The next question that comes out of this case,” he said, “is whether a person who can show that they pose a low risk should have to wait 10 years to ask for a review?”
The 19-page decision is State v. Dykes, Lawyers Weekly No. 010-056-13. The full text of the ruling can be found at sclawyersweekly.com.
Follow Phillip Bantz on Twitter @SCLWBantz