Fantastic win in South Carolina

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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.

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10 Thoughts to “Fantastic win in South Carolina”

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  1. Tim in WI

    What role did NARSOL play in this ” fantastic win? “

    1. Alex

      I don’t believe there was a role from NARSOL in this particular case, nor did NARSOL state they had involvement in it. They are reporting and bringing attention to it however. It’s simply a case whose results further NARSOL’s cause for Rational Sexual Offense Laws. Overall, it really is a great win that’ll probably have lasting ramifications for South Carolina.

      1. Tim is WI

        Not so sure about the lasting ramifications given all the court did was pass the buck onto SC legislature to ” fix” the fact that no review ( judicial) was promulgated along with the passage of the Act. Obviously, SCOTUS 03 declared such exercises as “bootless. “

  2. H n H

    Why do I get the feeling this is insignificantfor the remainder of the country?

  3. Sandy

    Yes, Alex, you are exactly correct.

    HnH, law made in one state or one circuit is not insignificant. It becomes precedent for litigation in other states and other circuits. Laws can achieve a domino effect. We have all too often seen this happen to the detriment of registered citizens. We need to celebrate when it has the potential for happening to their benefit.

  4. Liz

    “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.” If I’m interpreting this correctly, it means they’re requiring some sort of risk-assessment before lifetime registration can be imposed and/or in the process of releasing someone from the registry. Doesn’t this put the onus on the registrant to “prove” they aren’t high-risk to reoffend? How does one “prove” a negative? While we certainly want to celebrate wins, however small they may be, I’m not optimistic that any legislature/general assembly will do the work to create a “fair” process in which anyone will successfully meet the qualifications for release.

    1. Tim in WI

      The problem with your conclusion is, A. Threat assessment is part of the original intent and process of state. After conviction a pre-sentence investigation takes place prior to sentence hearing. The pre-sentence investigators are thorough in developing background via interviews of both witnesses and family members about the convicted. A report is made to the bench along with a recommendation concerning need for length of sentences & structure. This is a different opinion ( Amica) for the court itself and rarely approved or agreed with be either plaintiffs( District Attorney) or defense attorney ( respondant). The threat assessments continue within DOC processing, ah the first stop in prison life. It comes in many forms: psychological tests, literacy tests, delousing, medical \ dental exam and more. A period of isolation is used to test ones fortitude. By the time a person finishes a sentence they know who you are. That is ALL the justification for treatment programs.THE

      B: SCOTUS03 pinned registration’s congressional intent based on “conviction itself” and not ” levels of threat. ” Now that congress ( some of 50) have embraced tiers that justification became an errant assumption prima facia. The same can be said about the people’s intent to utilize the database machine property to impose affirmative restraint upon where on can live or work. Obviously even speech is implicated in the cyber sense.

  5. mut

    1973 kennedy amendments to the omnibus safe streets act of 1968 also requires review of an individuals criminal history although very limited
    just sayin

  6. Charles H Pettus

    Question for narsol. Why isn’t it that every state in the union doesn’t have a process in place that allows a registrant to go before a judge and plead his/her case for removal from the registry? What does the have lose? I mean, all a judge has to say is NO! But at least give a person a chance for crying out loud!!!