By Larry . . . The case of Dennis J. Powell Jr. v. Mark Keel, Chief, and The State of South Carolina was an awesome victory for our cause. This appeal was the result of the circuit court’s granting summary judgment in favor of Dennis Powell, Jr. on his claims challenging the internet publication and lifetime duration of his mandated registration as a sex offender under the South Carolina Sex Offender Registry Act (SORA).
On December 1, 2008, Powell was indicted for having knowingly through the Internet contacted and communicated with a person whom he reasonably believed to be a twelve-year-old girl, for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity in violation of SC Code Ann. §16-15-342. On April 2, 2009, Powell pled guilty to the indictment and was sentenced to two years’ imprisonment suspended to one year of probation. At sentencing, the court notified Powell that he would be required to register as a sex offender under SORA, which mandates lifetime registration for sex offenses, including criminal solicitation of a minor.
On November 21, 2016, Powell filed a petition in the circuit court for a declaratory judgment, claiming SORA does not permit publication of the state’s sex offender registry on the internet, and the lifetime duration of his sex offender registration constitutes excessive punishment in violation of the Eighth Amendment of the United States Constitution and article I, section 15 of the South Carolina Constitution, deprives him of due process and equal protection, and warrants equitable relief in the form of his removal from the registry. After cross-motions for summary judgment by the parties, the circuit court held a hearing and granted Powell’s motion on all claims. The circuit court held SORA’s lifetime registration requirement is punitive under the Eighth Amendment and violates Powell’s rights to due process and equal protection. The circuit court also determined SORA does not permit publication of the state’s sex offender registry on the internet.
Mark Keel, Chief of the State Law Enforcement Division (“SLED”), and the State of South Carolina, were not happy with the circuit court’s decision. The state filed a motion to alter or amend the judgment, which the circuit court considered under Rule 59(e), South Carolina Rules of Civil Procedure (SCRCP), and denied. Thereafter, the state appealed to the court of appeals, which transferred the case to the Supreme Court pursuant to Rules 204(a) and 203(d)(1)(A)(ii), SCACR. The South Carolina Supreme Court affirmed the circuit court and held SORA’s lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending. Unfortunately, they reversed the circuit court and held that subsection 23-3-490(E) permits dissemination of the State’s sex offender registry information on the internet.
The South Carolina Supreme Court has previously recognized the state’s legitimate interest in requiring sex offender registration. The court noted, “We find the initial mandatory imposition of sex offender registration satisfies the rational relationship test in light of the General Assembly’s stated purpose. In Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003), the U.S. Supreme Court found that due process does not require a pre-deprivation hearing where the registry requirement is based on the fact of previous conviction. The South Carolina Supreme Court overruled itself and stated, “. . . notwithstanding this finding, we hold SORA’s lifetime registration requirement without any opportunity for judicial review to assess the risk of re-offending 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.”
The court noted that the development of a judicial review process is a matter best left to the General Assembly and stated, “We are confident in the General Assembly’s ability to fulfill our request to fashion the particulars of the hearing process. Nevertheless, we require the hearings at which sex offenders may demonstrate they no longer pose a risk sufficient to justify continued registration be conducted with reasonable promptness and meet standards of fundamental fairness.” NARSOL is hopeful that the General Assembly will find it within its power to create a process that is fair and offers all registrants a way to be removed from the registry list and resume a more normal life. Our advocates in South Carolina are cautiously optimistic that legislators will do the right thing as ordered by the state’s highest tribunal.