State v. Dykes

Justice KITTREDGE. Jennifer Dykes appeals the circuit court’s order requiring that she be subject to satellite monitoring for the rest of her life pursuant to sections 23-3-540(0 and (H) of the South Carolina Code of Laws (Supp.20li). We affirm as modified. Section 23-3-540 represents a codification of what is commonly referred to as Jessica’s Law. Many states have some version of this law, which was enacted in memory of Jessica Lunsford, a nine-year-old girl who was raped and murdered by a convicted sex offender in Florida. Across the country, these laws heightened criminal sentences and post-release monitoring of child sex offenders. The specific issue presented in this case concerns the mandate for lifetime global positioning satellite monitoring with no judicial review. The complete absence of judicial review under South Carolina’s legislative scheme is more stringent than the statutory scheme of other jurisdictions. A common approach among other — 503 — states is either to require a predicate finding of probability to re-offend or to provide a judicial review process, which allows for, upon a proper showing, a court order releasing the offender from the satellite monitoring requirements. See generally, N.C. Gen.Stat. Ann. § 14-208.43 (West 2010) (providing a termination procedure one year after the imposition of the satellite based monitoring or a risk assessment for certain offenders). While we hold that the statute’s initial mandatory imposition of satellite monitoring is constitutional, the lifetime requirement without judicial review is unconstitutional. I. Dykes, when twenty-six years old, was indicted for lewd act on a minor in violation of Section 16-15-140 of the South Carolina Code (2006) as a result of her sexual relationship with a fourteen-year-old female. Dykes pled guilty to lewd act on a minor and was sentenced to fifteen years’ imprisonment, suspended upon the service of three years and five years’ probation.1 Upon her release, Dykes was notified verbally and in writing that pursuant to section 23-3-540(0 she would be placed on satellite monitoring if she were to violate the terms of her probation. Shortly thereafter, Dykes violated her probation in multiple respects.2 Dykes did not contest any of these violations, though she did offer testimony in mitigation. The State recommended a two-year partial revocation of Dykes’ probation and mandatory lifetime satellite monitoring. S.C.Code Ann. section 23-3-540(A) mandates that when an individual has been convicted of engaging in or attempting — 504 — criminal sexual conduct with a minor in the first degree (CSC-First) or lewd act on a minor, the court must order that person placed on satellite monitoring. Likewise, if a person has been convicted of such offenses before the effective date of the statute and violates a term of her probation, parole, or supervision program, she must also be placed on satellite monitoring. See S.C.Code Ann. § 23-3-540(C). The individual must remain on monitoring for as long as she is to remain on the sex offender registry, which is for life. S.C.Code Ann. § 23-3-540(H); see also S.C.Code Ann. § 23-3-460 (requiring biannual registration for life).3 Significantly, the lifetime monitoring requirement for one convicted of CSC-First or lewd act on a minor is not subject to any judicial review process. See S.C.Code Ann. § 23-3-540(H) (prohibiting judicial review of the lifetime monitoring for CSC-First and lewd act on a minor). In contrast, if a person is convicted of committing or attempting any offense which requires registration as a sex offender other than CSC-First or lewd act on a minor, the court has discretion with respect to whether the individual should be placed on satellite monitoring. See S.C.Code Ann. § 23-3-540(B), (D), (G)(1).4 In addition, after ten years, an individual who has committed the above-stated crimes may petition the court to have the monitoring removed upon a showing that she has complied with the monitoring requirements and there is no longer a need to continue monitoring her. If the court denies her petition, she may petition again every five years.5 S.C.Code Ann. § 23-3-540(H). — 505 — II. At her probation revocation hearing, Dykes objected to the constitutionality of mandatory lifetime monitoring. In support of her arguments, Dykes presented expert testimony that she poses a low risk of reoffending and that one’s risk of reoffending cannot be determined solely by the offense committed. The State offered no evidence, relying instead on the mandatory, nondiscretionary requirement of the statute. The circuit court found Dykes to be in willful violation of her probation and that she had notice of the potential for satellite monitoring. The court denied Dykes’ constitutional challenges and found it was statutorily mandated to impose satellite monitoring without making any findings as to Dykes’ likelihood of reoffending. The court also revoked Dykes’ probation for two years, but it ordered that her probation be terminated upon release. This appeal followed. III. The Fourteenth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const, amend. XIV, § 1. Dykes contends that the imposition of mandatory, lifetime satellite monitoring without consideration of her likelihood of re-offending violates her due process rights. A. Dykes asserts she has a fundamental right to be “let alone.” We disagree. The United States Supreme Court has cautioned restraint in the recognition of rights deemed to be fundamental in a constitutional sense. See Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (noting the Supreme Court’s reluctance to expand the concept of substantive due process). Indeed, courts must “exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy prefer — 506 — enees of [members of the judiciary].” Id. at 720, 117 S.Ct. 2258. The Due Process Clause protects only “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ ” Id. at 720-21, 117 S.Ct. 2258 (internal citations omitted). We reject the suggestion that a convicted child sex offender has a fundamental right to be “let alone” that is “deeply rooted in this Nation’s history and tradition.” Our rejection of Dykes’ fundamental right argument flows in part from the premise that satellite monitoring is predominantly civil. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (noting that whether a statute is criminal or civil primarily is a question of statutory construction). Where, as here, the legislature deems a statutory scheme civil, “only the clearest proof’ will transform a civil regulatory scheme into that which imposes a criminal penalty. Id. at 92, 123 S.Ct. 1140 (quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)) (internal quotations omitted). Notwithstanding the absence of a fundamental right, we do find that lifetime imposition of satellite monitoring implicates a protected liberty interest to be free from permanent, unwarranted governmental interference. We agree with other jurisdictions that have held the requirement of satellite monitoring places significant restraints on offenders that amount to a liberty interest. See Commonwealth v. Cory, 454 Mass. 559, 911 N.E.2d 187, 196 (2009) (finding satellite monitoring burdens an offender’s liberty interest in two ways, by “its permanent, physical attachment to the offender, and by its continuous surveillance of the offender’s activities”); United States v. Smedley, 611 F.Supp.2d 971, 975 (E.D.Mo.2009) (holding that imposing home detention with electronic monitoring as condition of release impinged on liberty interest); United States v. Merritt, 612 F.Supp.2d 1074, 1079 (D.Neb.2009) (stating that “[a] curfew with electronic monitoring restricts the defendant’s ability to move about at will and implicates a liberty interest protected under the Due Process Clause”); State v. Stines, 200 N.C.App. 193, 683 S.E.2d 411 (2009) (holding that requiring enrollment in satellite-based monitoring program deprives an offender of a significant — 507 — liberty interest). Therefore, having served her sentence, Dykes’ mandatory enrollment in the satellite monitoring program invokes minimal due process protection. Thus, courts must “ensure[ ] that legislation which deprives a person of a life, liberty, or property right have, at a minimum, a rational basis, and not be arbitrary____” In re Treatment and Care of Luckabaugh, 351 S.C. 122, 139-40, 568 S.E.2d 338, 346 (2002); see also Nebbia v. N.Y., 291 U.S. 502, 525, 54 S.Ct. 505, 78 L.Ed. 940 (1934) (“[T]he guarantiee] of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious.... ”); Hamilton v. Bd. of Trs. of Oconee Cnty. Sch. Dist., 282 S.C. 519, 319 S.E.2d 717 (Ct.App.1984) (holding that, to comport with due process, the legislation must have a rational basis for the deprivation and may not be “so inadequate that the judiciary will characterize it as arbitrary”). B. The General Assembly has expressly outlined the purpose of the state’s sex offender registration and electronic monitoring provisions: The intent of this article is to promote the state’s fundamental right to provide for the public health, welfare, and safety of its citizens [by] ... providing] law enforcement with the tools needed in investigating criminal offenses. Statistics show that sex offenders often pose a high risk of reoffending. Additionally, law enforcement’s efforts to protect communities, conduct investigations, and apprehend offenders who commit sex offenses are impaired by the lack of information about these convicted offenders who live within the law enforcement agency’s jurisdiction. S.C.Code Ann. § 23-3-400 (2007). This Court has examined this language and held “it is clear the General Assembly did not intend to punish sex offenders, but instead intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002). Thus, a likelihood of re-offending lies at the core of South Carolina’s civil statutory scheme. — 508 — In light of the General Assembly’s stated purpose of protecting the public from sex offenders and aiding law enforcement, we find that the initial mandatory imposition of satellite monitoring for certain child-sex crimes satisfies the rational relationship test. Accordingly, we find constitutional the baseline requirement of section 23-3-540(0 that individuals convicted of CSC-First or lewd act on a minor mandatorily submit to electronic monitoring upon their release from incarceration or violation of their probation or parole. Although we find the initial mandatory imposition of satellite monitoring under section 23-3-540(C) constitutional, we believe the final sentence of section 23~3-540(H) is unconstitutional, for it precludes judicial review for persons convicted of CSC-First or lewd act on a minor.6 The complete absence of any opportunity for judicial review to assess a risk of re-offending, which is beyond the norm of Jessica’s law, 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. See Luckabaugh, 351 S.C. at 139-40, 568 S.E.2d at 346 (finding due process ensures that a statute which deprives a person of a liberty interest has “at a minimum, a rational basis, and may not be arbitrary”); see also Lyng v. Int’l Union, 485 U.S. 360, 375, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) (Marshall, J., dissenting) (noting that although allegedly arbitrary legislation invokes the least intrusive rational basis test, that standard of review “is not a toothless one”) (quoting Mathews v. De Castro, 429 U.S. 181, 185, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976)); Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (noting that although Texas has legitimate interest to protect the community from those that are mentally ill, Texas “has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others”).7 Thus, we hold it is unconstitutional to impose — 509 — lifetime satellite monitoring with no opportunity for judicial review, as is the case with CSC-First or lewd act pursuant to section 23-3-540(H). The finding of unconstitutionality with respect to the non-reviewable lifetime monitoring requirement in section 23-3-540(H) does not require that we invalidate the remainder of the statute. This is so because of the legislature’s inclusion of a severability clause. See 2006 Act No. 346 § 8 (stating that if a court were to find any portion of the statute unconstitutional, that holding does not affect the rest of the statute and the General Assembly would have passed it without that ineffective part). The only provision invalidated by today’s decision is the portion of section 23-3-540(H) that prohibits only those convicted of CSC-First and lewd act on a minor from petitioning for judicial relief from the satellite monitoring.8 — 510 — Consequently, Dykes and others similarly situated must comply with the monitoring requirement mandated by section 23-3-540(C). However, persons convicted of CSC-First and lewd act on a minor are entitled to avail themselves of the section 23-3-540(H) judicial review process as outlined for the balance of the offenses enumerated in section 23-3-540(G). We affirm the circuit court as modified.9 AFFIRMED AS MODIFIED. — 511 — TOAL, C.J., concurs. PLEICONES, J., concurring in result only. HEARN, J., dissenting in a separate opinion in which BEATTY, J., concurs. Footnotes [1] Because her offense predated the satellite monitoring statute, she was not subject to monitoring at the time of her plea. [2] Five citations and arrest warrants were issued to her for various probation violations: a citation pertaining to her relationship with a convicted felon whom Dykes met while incarcerated and with whom she was then residing; an arrest warrant for Dykes' continued relationship with that individual; a citation for drinking an alcoholic beverage; a citation for being terminated from sex offender counseling after she cancelled or rescheduled too many appointments; and an arrest warrant for failing to maintain an approved residence and changing her address without the knowledge or consent of her probation agent. [3] Once activated, the monitor can pinpoint the individual’s location to within fifteen meters. [4] The offenses include: criminal sexual conduct with a minor in the second degree; engaging a child for sexual performance; producing, directing, or promoting sexual performance by a child; assaults with intent to commit criminal sexual conduct involving a minor; violation of the laws concerning obscenity, material harmful to minors, child exploitation, and child prostitution; kidnapping of a person under the age of eighteen unless the defendant is a parent; and trafficking in persons under the age of eighteen if the offense includes a completed or attempted criminal sexual offense. S.C.Code Ann. § 23-3-540(G)(l). [5] As long as the individual is being monitored, she must comply with all the terms set by the State, report damage to the device, pay for the costs — 505 — of the monitoring (unless she can show financial hardship), and not remove or tamper with the device; failure to follow these rules may result in criminal penalties. S.C.Code Ann. §§ 23-3-540(1) to (L). [6] "A person may not petition the court if the person is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16 — 3—655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140.” [7] This finding of arbitrariness is additionally supported by the South Carolina Constitution, which, unlike the United States Constitution, has — 509 — an express privacy provision. See S.C. Const, art. I, § 10 ("The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated____”). Our constitution’s privacy provision informs the analysis of whether a state law is arbitrary and lends additional support to the conclusion that section 23-3-540(H)'s preclusion of judicial review for those offenders mandated to satellite monitoring under section 23-3-540(C) is unconstitutional. Cf. State v. Weaver, 374 S.C. 313, 649 S.E.2d 479 (2007) (holding that by articulating a specific prohibition against unreasonable invasions of privacy, the people of South Carolina have indicated a higher level of privacy protection than the federal Constitution). [8] We respond to the dissent in two respects. First, the dissent misapprehends our position by its suggestion that "[fjormulating the right by couching it in terms of a specific class of persons fails to appreciate the extent of the right at stake” and that "the Constitution does not recognize separate rights for different classes of citizens and instead guarantees rights to all American citizens.” Certainly, in the abstract, people generally have a right to be let alone. Respectfully, however, fundamental rights are not to be defined or examined in a vacuum, but rather must be viewed in the context of the situation presented. Even the dissent’s analysis so acknowledges, as it refers to Dykes’s status, stating "when viewed in light of the facts of this case” and quoting Justice Kennedy’s opinion in Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), in which he observed that "[Ijiberty protects the person from unwarranted government intrusions .... ” (emphasis added). The dissent’s multiple invocations of the word "unwarranted” with regard to government intrusions necessarily implicate a context-specific analysis when examining the right asserted. Compare District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (holding the Second Amendment confers to an — 510 — individual the right to keep and bear arms) with 18 U.S.C. § 922(g)(1) (2012) (unlawful for a person with a prior felony conviction to possess a firearm). Indeed, the question before us is whether the state may constitutionally impose civil satellite monitoring for convicted child sex offenders. In the context of this case, as much as the dissent wishes otherwise, Dykes cannot avoid her unalterable status as a convicted child sex offender, and pursuant to Glucksberg, she holds no fundamental right to be let alone. Secondly, the dissent attributes to the majority a position we have never taken. With our opinion today, we have not, as the dissent suggests, upheld mandatory lifetime monitoring with no judicial review for assessment of the risk of reoffending. In fact, although refusing to recognize a fundamental right, we have found the statutorily prescribed mandatory lifetime monitoring without a risk assessment is arbitrary and therefore unconstitutional. Going forward, pursuant to the savings clause and despite the dissent’s suggestion to the contrary, Dykes and others similarly situated are entitled to periodic judicial reviews under section 23-3-540(H) to determine if satellite monitoring remains necessary. [9] In addition to her substantive due process claim, Dykes asserts constitutional violations of procedural due process, the prohibition on ex post facto laws, equal protection, and unreasonable search and seizure. We reject her additional claims pursuant to Rule 220, SCACR, and the following authorities: Connecticut v. Doe, 538 U.S. 1, 8 (2003) (rejecting sex offender’s due process argument requesting a hearing on his current level of dangerousness, and stating those "who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in the hearing are relevant to the statutory scheme”); Smith v. Doe, 538 U.S. 84 (2003) (rejecting an ex post facto challenge where sex offender registration and monitoring requirements are civil in nature); Phillips v. State, 331 S.C. 482, 482, 504 S.E.2d 111, 112 (1998) (holding ”[i]t is not a violation of the ex post facto clause for the legislature to enhance punishment for a later offense based on a prior conviction, even though the enhancement provision was not in effect at the time of the prior offense”); Grant v. S.C. Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995) (“The sine qua non of an equal protection claim is showing that similarly situated persons received disparate treatment.”) (emphasis added)); Curtis v. State, 345 S.C. 557, 575, 549 S.E.2d 591, 600 (2001) (noting if the case does not involve a suspect classification or a fundamental right, the question is — 511 — whether the legislation is rationally related to a legitimate state purpose); Florida v. Jimeno, 500 U.S. 248, 250 (1991) ("The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.”).