Up until now, when someone asks, “can you help me with removal from the sex offender registry,” my answer would have been “no.”
Because, in SC, it’s next to impossible to get off the registry once you are on there – we have the most extreme sex offender registry requirements in the country. You get placed on the registry after conviction for any sex offense, and you can even get placed on the registry if your conviction is not a sex offense if the court orders it.
And, once you are on there, it is for life – SC does not have “tiers” like other states, or any process to have a court review whether you should be on the registry.
Last month, however, the SC Supreme Court held in Powell v. Keel that our state’s lifetime registry requirement is unconstitutional unless there is an opportunity for judicial review and for a person to present evidence that they are not likely to re-offend and therefore should not be on the registry.
Powell v. Keel: Removal from the Sex Offender Registry
The SC Supreme Court found that the SC Sex Offender Registry Act (SORA) is unconstitutional unless there is an opportunity for a person to demonstrate to a court that they are not likely to reoffend, but they also held that it is okay for the state to continue publishing the sex offender registry on the internet:
We hold SORA’s lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending. We further hold subsection 23-3-490(E) permits dissemination of the State’s sex offender registry information on the internet.
Lifetime Registry Requirement without Opportunity for Judicial Review is Unconstitutional
Any person who is convicted of a sex offense listed in SC Code Section 23-3-430 must register as a sex offender. Even if your offense is not listed in the statute, you can be required to register as a sex offender if the judge orders it:
In South Carolina, SORA requires any person, regardless of age, who has been convicted of an enumerated crime, including criminal solicitation of a minor, to register as a sex offender. S.C. Code Ann. § 23-3-430(A), (C)(21) (2007 & Supp. 2020). The Act also provides judges with discretion to order, as a condition of sentencing, a person convicted of an offense not listed in the statute to be included in the sex offender registry if good cause is shown by the solicitor.
More importantly, SC’s sex offender registry requirement is for life, regardless of your likelihood to reoffend or whether you are a danger to the community. Any person who is ordered to be on the registry must register with the sheriff twice a year, and, if they do not, they get charged with failure to register, prosecuted, and may then be required to wear a GPS monitor in addition to being on the sex offender registry:
Moreover, subsection 23-3-460(A) generally mandates that a person required to register as a sex offender must do so biannually for life. Id. § 23-3460(A). Registrants are required to register in person at the sheriff’s department and must provide information as prescribed by SLED. Id. §§ 23-3-450, -460(A). Any person who fails to register or provide required notifications may be subject to criminal prosecution. Id. § 23-3-470.
What makes SC’s sex offender registry requirement unconstitutional is that there is no procedure for judicial review to find out if a person is actually a danger to the community because they are likely to reoffend:
Notably, SORA does not provide any judicial review for registrants to demonstrate their individual risk of recidivism and seek removal from the registry. Instead, a person may only be removed from the registry under the following circumstances: “the person’s adjudication, conviction, guilty plea, or plea of nolo contendere for an offense listed in subsection (C) was reversed, overturned, or vacated on appeal and a final judgment has been rendered”; the person receives a pardon for the offense requiring registration and it is “based on a finding of not guilty”; or the person is granted a petition for a writ of habeas corpus or a motion for a new trial, a new trial is ordered, and the person is acquitted.
Requiring Lifetime Registration without Judicial Review Serves No Purpose
The purpose of the sex offender registry is to protect the public from sex offenders who are likely to reoffend – when there is no procedure to determine whether a person is likely to reoffend, the registry is not serving its purpose.
There is no rational basis for requiring lifetime registration of people who are not likely to reoffend:
We hold SORA’s lifetime registration requirement without any opportunity for judicial review to assess the risk of re-offending 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. Indeed, “a likelihood of re-offending lies at the core of South Carolina’s civil statutory scheme…”
However, the lifetime inclusion of individuals who have a low risk of re-offending renders the registry over-inclusive and 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…
Moreover, there is no evidence in the record that current statistics indicate all sex offenders generally pose a high risk of re-offending.
So, if the Constitution requires judicial review and a showing of likelihood to reoffend, how does removal from the sex offender registry work?
When is Removal from the Sex Offender Registry Possible?
The statute already provides for three possible reasons to remove a person from the registry, although they are uncommon:
- If your conviction is reversed, overturned, or vacated on appeal and a final judgment has been rendered,
- If you receive a pardon based on a finding of not guilty – if you receive any other type of pardon, you must continue to register, or
- If you are granted a new trial and you are acquitted by a judge or by a jury at the retrial.
Although the Court suggests that the legislature must now enact a procedure for judicial review and removal from the sex offender registry, the most likely process will be what is already in place for people who are ordered to wear a GPS monitor (also a lifetime requirement):
- There should be an initial determination that a person is likely to reoffend and therefore should be on the sex offender registry,
- There should be an opportunity for judicial review after ten years, where the person can present evidence that they are not likely to reoffend and therefore should not be on the registry, and
- There should be an opportunity for judicial review every five years after that if the initial requests are denied.
Criminal Defense Attorneys in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending misdemeanors and felonies in SC courtrooms, including sex offenses that would result in mandatory sex offender registry.
If you have been charged with a crime or believe you are under investigation in SC, or if you believe you may be eligible for removal from the sex offender registry, contact criminal defense Lawyer Johnny Gardner today for a free consultation to find out how we can help.