SC Rules Lifetime GPS Unconstitutional

From: Trial Theory http://www.trialtheory.com/appellate-opinions/state-v-dykes-lifetime-gps-monitoring-is-unconstitutional/

State v. Dykes – lifetime GPS monitoring is unconstitutional

Written by Bobby G. Frederick

In State v. Dykes, decided May 9, 2012, the South Carolina Supreme Court held that the imposition of lifetime GPS monitoring of convicted sex offenders, without regard to the likelihood of re-offending, violates substantive due process.  The majority opinion finds that persons have a fundamental right to be left alone, and the monitoring requirement under these circumstances fails the strict scrutiny test.  (If the right infringed upon is a “fundamental right,” a higher standard (“strict scrutiny”) is applied to determine if the law at issue is unconstitutional).
The concurring opinion finds that convicted sex offenders do not have a fundamental constitutional right to be left alone; nevertheless, lifetime GPS monitoring without judicial review to determine an individual’s likelihood of re-offending is arbitrary and still fails the lesser, rational basis test.  Further, it violates the right to privacy which is found in the South Carolina Constitution:

I believe the 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 . . . .”). While our constitution’s privacy provision does not transform a purported privacy interest into a fundamental right for purposes of applying the strict scrutiny test, I believe it does inform the analysis of whether a state law is arbitrary and lends additional support to the conclusion that 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).

It is interesting that the State argued on appeal that the sex offender registry is more invasive than GPS monitoring, and therefore GPS monitoring must be constitutional:

The State argues that the inverse is true and that it is the sex offender registry which is more invasive. In particular, the State points out that the registry provides the public with the offender’s full name, address, and offense history. Furthermore, the registry contains a photograph of the individual in addition to a physical description, complete with a list of tattoos and scars. In contrast, information obtained through satellite monitoring of that individual is limited to only the person’s location and is not available to the public.

So, if in the State’s opinion lifetime registry requirements are more invasive than GPS monitoring, yet GPS monitoring fails not only the rational basis test but also strict scrutiny, depending on which Justice you listen to, what does that say about lifetime registry requirements?
South Carolina has the most oppressive registry requirements in the country – lifetime sex offender registry without regard to the nature of the conviction or likelihood to re-offend.  A person convicted of statutory rape, who had consensual sex with a partner a few years younger than themselves, is treated the same as a person convicted of forcible rape of a child, is treated the same as a drunk convicted of indecent exposure.
And we want all to wear a monitor on their ankle, 24 hours a day, and prevent them from traveling, for the rest of their lives?  I suspect the supporters of the lifetime GPS requirement would just as soon support summary execution if they could color it constitutional.