May 9, 2012
South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds
The South Carolina Supreme Court has a very interesting (and
seemingly ground-breaking) constitutional ruling concerning GPS tracking
of a sex offender. The ruling in
SC v. Dykes, No. 27124 (S.C. May 9, 2012) (
available here),
is a bit hard to figure out: the first opinion seems to announce the
opinion for the court, but then a footnote at the state of Justice
Hearn's opinion states that "[b]ecause a majority of the Court has
joined the separate concurring opinion of Justice Kittredge, his
concurrence is now the controlling opinion in this case." I will quote
the first paragraph from both opinions in the case, because they both
are noteworthy, starting here with the opinion of Justice Hearn:
Jennifer Rayanne Dykes appeals the circuit court's order that she be
subject to satellite monitoring for the rest of her natural life
pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010).
She lodges five constitutional challenges to this statute: it violates
her substantive due process rights, her right to procedural due process,
the Ex Post Facto clause, the Equal Protection Clause, and her right to
be free from unreasonable searches and seizures. We hold the mandatory
imposition of lifetime satellite monitoring violates Dykes' substantive
due process rights and reverse and remand for further proceedings.
The very lengthy opinion by Justice Hearn, which apparently garnered
only two (of the five) votes on the court, is thereafter followed by a
shorter opinion by Justice Kittredge which starts this way:
I concur in result. I commend my learned colleague for her scholarly
research, and I agree with the majority's general proposition that
persons have a fundamental right "to be let alone." But I respectfully
disagree that Appellant, as a convicted child sex offender, possesses a
right that is fundamental in the constitutional sense. I do not view
Appellant's purported right as fundamental. I would find Appellant
possesses a liberty interest entitled to constitutional protection, for
all persons most assuredly have a liberty interest to be free from
unreasonable governmental interference. I would find that the
challenged mandatory lifetime, non-reviewable satellite monitoring
provision in section 23-3-540(C) is arbitrary and fails the minimal
rational relationship test.
Long story short, it appears that all members of the South Carolina
Supreme Court have concluded that the mandatory lifetime satellite
monitoring now required by stature in South Carolina for sex offender
Jennifer Rayanne Dykes is unconstitutional. (I mention the full name of
the defendant in this case because I cannot help but wonder,
yet again,
if the defendant's gender may have played at least an unconscious role
in this notable outcome. I do not think it is implausible to at least
suspect this case might well have come out another way if the the
defendant was named Johnny Rex Dykes.)
I have not kept count of how many states are like South Carolina in
requiring lifetime GPS monitoring of many sex offenders, but I am pretty
sure this ruling could (and should?) have ripple effects in at least a
few other jurisdictions. I am also sure that both constitutional
scholars and those interested in the intersection of modern technology
and criminal justice doctrines ought to check out the
Dykes opinions.
May 9, 2012 at 06:20 PM |
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