South Carolina Supreme Court (3-2) Mostly Upholds Lifetime Satellite Location Monitoring for Child Molesters

When Jennifer Dykes was 26, she had a sexual relationship with a 14-year-old girl. She was convicted of “lewd act on a minor,” and was sentenced to (in effect) 3 years in prison and 5 years’ probation. She violated her probation in various ways (flaking out on sex offender counseling, moving without notifying her probation agent, and more). Under South Carolina law, people guilty of lewd acts with minors must be placed on lifetime satellite monitoring, and the same is true for people convicted before the satellite monitoring statute’s effective date if they violate probation after that effective date.

Dykes sued to set aside the lifetime monitoring as a violation of the Fourteenth Amendment, but a majority of the South Carolina Supreme Court disagreed (State v. Dykes (S.C. May 22, 2013)). The lead opinion (for two Justices) concluded that such lifetime monitoring is constitutional if it has a rational basis, and found that there is such a rational basis. One Justice concurred in the judgment without opinion. Two dissenting Justices reasoned that such lifetime monitoring must pass strict scrutiny, which this law didn’t, because it didn’t provide for “actual consideration of [each offender’s] likelihood to reoffend.”

Note that all the Justices agreed that the provision that the lifetime monitoring order can’t later be reexamined and suspended by a judge was unconstitutional. “The complete absence of any opportunity for judicial review to assess a 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 lead opinion and the concurrence seemed to think, though, that striking down the statutory bar on judicial review was sufficient to make the law constitutional; the dissent would have required some specific showing at the outset that the defendant did not “have a low risk of reoffending.”

Note that the lead opinion didn’t discuss whether the monitoring violated the Fourth Amendment’s ban on unreasonable searches, even though Dykes did raise the Fourth Amendment argument in her brief. The lead opinion does state that the South Carolina Constitution’s express ban on “unreasonable invasions of privacy” “lends additional support” to its invalidation of the no-judicial-review provision, but it doesn’t discuss that provision in its explanation of why the general lifetime satellite monitoring requirement is constitutional.