860 S.E.2d 344
S.C.2021Background
- In 2009 Dennis J. Powell, Jr. pleaded guilty to criminal solicitation of a minor after an online sting; he was sentenced to probation and informed he must register under South Carolina's Sex Offender Registry Act (SORA), which mandates lifetime registration for enumerated offenses.
- Powell completed probation and treatment, was assessed as low risk of recidivism, and had no subsequent arrests; in 2016 he filed a declaratory-judgment action challenging SORA's lifetime registration and arguing SORA does not permit internet publication of the registry.
- The circuit court granted Powell summary judgment on all claims, including ordering his removal after a hearing finding he no longer posed sufficient risk to justify registration; the State (SLED/Keel) appealed.
- The South Carolina Supreme Court held SORA’s lifetime registration without any opportunity for judicial review violates due process and is unconstitutional unless a mechanism for judicial risk review is provided; the Court overruled prior precedent to that extent.
- The Court also held § 23-3-490(E) permits dissemination of registry information via the internet, relying on statutory amendments and legislative history.
- The Court ordered Powell’s immediate removal (because he had already received a court hearing and relief) but stayed the broader holding for 12 months to allow the General Assembly to enact a judicial-review process.
Issues
| Issue | Plaintiff's Argument (Powell) | Defendant's Argument (Keel/SLED) | Held |
|---|---|---|---|
| Due process — Is lifetime registration without judicial review constitutional? | Lifetime registration implicates a protected liberty interest; must permit individualized judicial review of recidivism risk. | Registration is non-punitive; prior precedent (Hendrix) rejected a due process liberty-interest claim and no review required. | Lifetime registration unconstitutional absent any opportunity for judicial review to assess risk; Hendrix overruled to that extent. |
| Internet publication — Does § 23-3-490(E) allow posting the registry online? | "Transmission" does not necessarily mean public internet publication; statute ambiguous and should not be read to permit posting. | § 23-3-490(E) permits electronic dissemination, and later statutes (e.g., requiring school hyperlinks) show legislative intent to publish online. | § 23-3-490(E) permits dissemination via the internet; legislative history and subsequent amendments support online publication. |
| Remedy/timing — Should Powell be removed immediately? | Powell had a court hearing that found he is low risk and ordered removal; immediate relief appropriate. | State contends broader changes should await legislative action; federal SORNA interest noted but not dispositive. | Because Powell already received a judicial hearing and was found low risk, he must be removed immediately; Court stayed the opinion’s broader effective date for 12 months to allow legislative response. |
Key Cases Cited
- Smith v. Doe, 538 U.S. 84 (2003) (analyzed registration regimes as civil rather than punitive for Due Process/Eighth Amendment purposes)
- Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003) (upheld pre-deprivation registration based on fact of conviction without individualized hearing)
- Hendrix v. Taylor, 353 S.C. 542 (2003) (previous S.C. precedent holding registration non-punitive and rejecting due process liberty-interest claim; overruled in part)
- In re Dykes, 403 S.C. 499 (2013) (held lifetime satellite monitoring implicates a protected liberty interest and is unconstitutional without judicial review)
- Letalien v. State, 985 A.2d 4 (Me. 2009) (criticized overbroad, permanent registration schemes and the dilution of registry utility)
- Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (questioned empirical support for high general recidivism rates relied on in upholding registration schemes)