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Lifetime placement on sex offender list unconstitutional, SC Supreme Court rules

COLUMBIA — The S.C. Supreme Court has unanimously ruled the state’s lifetime sex offender registration requirement is unconstitutional and people who demonstrate a low risk of reoffending should be able to petition a judge to have their names purged.

The June 9 order demands the General Assembly change the law to bring South Carolina in line with other states that provide offenders a path off of similar Megan’s Law-type registries. The law is named for a 7-year-old in New Jersey who was sexually assaulted and murdered by a neighbor, prompting states around the country in the 1990s to tighten their laws around sex offenders.

Decades later, South Carolina’s law, one of the nation’s strictest, remains largely untouched. It requires lifetime registration in a public database — displaying each subject’s name, home address and a photo — no matter the degree of the offense.

Offenders may only be removed if their conviction was reversed, they are acquitted through a retrial or if granted a pardon based on a finding that the subject was not guilty of their crimes. Otherwise, unlike other states, South Carolina provides prior offenders no recourse to seek relief from a judge.

That now is in line for change based on the high court decision.

The system is the “most stringent in the country,” and deprives offenders of their rights to due process, Chief Justice Donald Beatty wrote in the 13-page ruling.

Because the state does not track which individuals have a low risk of reoffending, the state’s registry “dilutes its utility by creating an ever-growing list of registrants that is less effective at protecting the public and meeting the needs of law enforcement,” Beatty wrote.

The justices did reject an argument that publishing the registry online violates state law, allowing the database to continue to be displayed on the Internet.

The ruling mandates that offenders be offered hearings in circuit court, where they may argue they no longer pose a risk to their communities. Because that change will require an act of the Legislature, the ruling does not take effect until June 2022.

The high court’s decision is already sparking reactions from the law enforcement community and nonprofit organizations that work to support sexual assault and human trafficking victims. Brooke Burris, who founded and co-chairs the Tri-County Human Trafficking Task Force, said she understands the need to reexamine the registry and provide some offenders a pathway off of it.

But she was concerned justices didn’t mention victims in their June 9 ruling.

“The effects on a victim are for their lifetime,” Burris said. She hopes the General Assembly takes victims and their needs into consideration as they amend the state’s registration rules.

Rebecca Lorick, executive director of Sexual Trauma Services of the Midlands, echoed those concerns.

“It should be totally victim-centered,” Lorick said. “It’s so important to have their voices heard.” Jarrod Bruder, executive director of the South Carolina Sheriffs’ Association, said the state’s sheriffs welcome the opportunity to work with lawmakers to improve the law.

But, he said, “We must implement a solution that upholds a careful balance between public safety and an individual’s right to due process.”

Jonathan Ozmint, director of the S.C. Department of Corrections from 2003 to 2011, said lawmakers should adopt the system crafted by federal officials and used by other states. Under this more common process, the lowest-level offenders are automatically purged from registries after 10 years, and most or all nonviolent offenders have a path off the lists. Sign up for updates!

Get the latest political news from The Post and Courier in your inbox. “We continue to be the only state in the country that rejects even the possibility of redemption for every single sex offender no matter how minor his offense,” Ozmint said. “I just don’t think it’s good public policy to reject hope and not allow for the possibility of redemption.” Rep. Cezar McKnight, D-Kingstree, said he plans to prefile legislation this fall for next year’s legislative session.

“I agree with the court’s decision,” said McKnight, an attorney who serves on the House Judiciary Committee. “Granting a person due process of law is a hallmark of the United States justice system and I don’t care who it is or what they’re accused of doing.”

Conversations on how to improve the state’s sex offender registry have been ongoing, said Rep. Bruce Bannister, R-Greenville. Officials know there are people on the registry who aren’t really “what we’d qualify as a predator,” and there needs to be a measured approach toward giving qualified people a path off it.

But the high court’s ruling came as a surprise.

“I’m surprised the Supreme Court did that, but now that they’ve done it I think we can fix it and make it better,” Bannister said. “There probably is a way to effectively identify the predators who should never get off and the folks who maybe have gotten treatment who could get off and not be a danger to society in general.”

House Minority Leader Todd Rutherford, D-Columbia, a defense attorney, said he’s introduced bills in the past to take juveniles off the registry because he thought the requirement was unconstitutional.

“We’ve had kids as young as 15 put on the sex offender registry for the rest of their lives,” Rutherford said. “This ruling by the Supreme Court is in recognition of reality and what the constitution is saying: We can’t brand people with a scarlet letter for the rest of their lives for something some of these people do when they were 14 or 15 years old. It’s a huge step to what was created as a safety tool that has now been perverted.”

The Legislature will have to address the issue next year “without question,” he said. Lawmakers will have to start looking at sex offenders and recidivism under science- and evidence-based criteria.

As the conversation on amending South Carolina’s sex offender registry rules takes off, it will be important for all involved, as well as the public to remember that the registry is not a monitoring system and that it’s critical to have qualified professionals evaluate an offender’s risk of committing another sex crime, said Debbie Herring-Lash, a prosecutor who handles child sex abuse cases for the 9th Circuit Solicitor’s Office in Charleston.

Although the Supreme Court’s ruling represents a significant change for South Carolina, other states have systems for taking people off such registries.

“The burden is on the person to show they’re not a risk,” Herring-Lash said. “The victim has a right to be heard in that process. It seems to work in other states.”

Rather than mandate certain offenders be taken off the registry after a certain number of years, a decision to purge someone from the list needs to be made with input from a professional qualified to conduct psychosexual evaluation, she said. In the case before the state Supreme Court, Ozmint represented Columbia resident Dennis J. Powell Jr. Through a 2008 law enforcement sting, authorities caught Powell having sexually graphic online conversations with a police officer posing as a 12-year-old girl. Ozmint said Powell was in his 20s at the time.

Powell was arrested after trying to arrange a meeting with the girl for sex. He pleaded guilty in 2009 to criminal solicitation of a minor.

He petitioned to have his name removed from the registry in 2016 after counselors determined his risk of reoffending was low. Powell argued the required lifetime registry was excessive punishment and violated his rights to equal protection under the law.

Circuit Judge G. Thomas Cooper Jr. agreed and ordered Powell’s removal from the state registry. The State Law Enforcement Division and the state Attorney General’s Office appealed the case to the state Supreme Court, arguing the state’s use of its registry did not rise to the level of excessive punishment.

Spokesmen for those offices didn’t immediately return messages on June 9 seeking comment. The high court ordered those agencies to remove Powell’s name from the state registry immediately.

Seanna Adcox contributed to this report.

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