South Carolina Supreme Court looks to state constitution’s right to privacy in finding due process requires judicial review of lifetime electronic monitoring of sex offenders

South Carolina is one of the few states with an explicit right to privacy within the state constitution. S.C. Const. art. I, §10. One of my early legal interests and my first published piece on the law regarded our state’s constitutional protection of the right to privacy.  When“Privacy Rights in South Carolina After Singleton v. State” was published in South Carolina Lawyer in March 1994, I anticipate numerous appellate decisions relying upon this right.

It hasn’t happened.  State v. Weaver, 374 S.C. 313, 649 S.E.2d 479 (2007), State v. Forrester, 343 S.C. 637, 541 S.E.2d 837 (2001) and State v. Moore, 377 S.C. 299, 659 S.E.2d 256 (Ct.App. 2008) noted South Carolina’s explicit right to privacy but rejected it as a basis to expand search and seizure protections.

However a May 22, 2013 Supreme Court opinion in State v. Dykes, 403 S.C. 499, 744 S.E.2d 505 (2013), uses this state constitutional provision in support of a determination that due process requires judicial review of a lifetime electronic monitoring requirement for those convicted of first degree criminal sexual conduct or lewd act on a minor.  Dykes was convicted of lewd act on a minor and violated her probation.  When the state sought to place her on lifetime electronic monitoring, the circuit court determined that there was no basis for judicial review to determine whether Dykes presented a high risk of re-offending before imposing this lifetime requirement.  The Supreme Court upheld the constitutionality of lifetime monitoring but found the denial of judicial review was unconstitutional, holding:

[W]e find constitutional the baseline requirement of section 23-3-540(c) 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.  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.

In support, a footnote uses S.C. Const. art. I, §10 to justify this result:

This finding of arbitrariness is additionally supported by the South Carolina Constitution, which, unlike the United States Constitution, has 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).

The language “the people of South Carolina have indicated a higher level of privacy protection than the federal Constitution” is an open invitation for South Carolina attorneys and citizen interested in civil rights to seek expansive privacy rights.  This may be one of the few areas in which our state is more “progressive” than the majority of states.


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