Clients seeking a pardon commonly ask what rights a pardon restores. The right to sit on a jury, the right to run for public office, the right to possess a firearm, and nearly anything else that is a civil right is a restored by a pardon. A pardon is very broad.
But if we ask the question in reverse, what doesn’t a pardon do?, we get two important exceptions. First, a pardon does not remove the conviction from your record. That requires expunging. Second, a pardon does not remove a person from the Sex Offender Registry.
What is the Sex Offender Registry?
The Sex Offender Registry is a list of persons convicted of crimes sexual in nature. Qualifying crimes range from the obvious, rape, to the not so obvious, kidnapping. It also includes crimes now enshrined as constitutional rights, buggery, and misdemeanors that do not require sexual conduct, i.e. eavesdropping, peeping, and voyeurism.
The list is kept by South Carolina law enforcement, and the State Law Enforcement Division maintains an active database online that anyone can access for free. Offenders are required to update their local Sheriff any time they move or change employment. They must also register wherever they own real property or attend school.
The requirement to register is for life.
The Challenge
In 2016, Dennis J. Powell, Jr. brought a challenge to the lifetime requirement to register. Boiled down, he argued that a lifetime requirement, without option to review and be removed from the registry, was a violation of the Constitution. The trial Court agreed, conducted a review, and found him fit to be removed from the registry. (Ironically, and unfortunately for Mr. Powell, his fight to be removed will make his name infamous among attorneys and will ensure that he will always be found via a simple web search.)
The case was appealed, and the SC Supreme Court released an opinion on June 9, 2021.
The Supreme Court finds Due Process requires a process for review.
The Sex Offender Registry Act’s “requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly’s stated purpose of protecting the public from those with a high risk of re-offending.” Powell v. Keel et al., (2021, SC Opinion No. 28033). Without a possibility for review and removal, the Court found that the “lifetime registration requirement is unconstitutional.” Id.
To understand this, we must consider the purpose of the Sex Offender Registry. Officially, it is not ‘punishment’ but a tool to alert others to potential recidivist. “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. Id.
The list is designed to highlight those most likely to be implicated in future crimes. But if the list is over-inclusive, it becomes so clouded by ‘noise’ that it is no longer useful. That reduction in utility goes against the stated goal of the General Assembly, and therefore is not supported by the reasoning of the law. “Thus, the registry fails to promote the State’s legitimate interest.” Id.
Pursuant to the Court’s reasoning, culling the list of past offenders unlikely to re-offend protects both the privacy interest of the offenders and makes the list more effective.
How does one get a review and get off of the list?
The Court was less specific here. The Court “recognize[d] the development of a judicial review process is a matter best left to the General Assembly.” Powell v. Keel et al., (2021, SC Opinion No. 28033). The Court did however clarify that requests for a hearing must “be conducted with reasonable promptness and meet standards of fundamental fairness.” Id. As an example, the Court upheld the hearing conducted for Mr. Powell and ordered him removed from the list. Id.
The General Assembly has already established a method for registrants being removed from the satellite monitoring requirements of the Act, and we can look there to gather an idea of what a review process may look like. To be removed from satellite monitoring, an offender must bring a petition in circuit court after 10 years have passed. The state and the victim have a right to be heard, and the Judge is to determine if there is a need to maintain the monitoring. A petition can be brought every five years.
When does this start?
The Court, upon recognizing that the General Assembly was better equipped to establish a procedure for removal, stayed the effect of the order until June 9, 2022. Id. (“We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review.”).
The General Assembly will not be in session until January of 2022, and this opinion came out too late this year for any bills to be introduced. Thus we have little idea what a new solution may look like. However, we will know before long what is the procedure.
Concluding
Lifetime registration for sex offenders, without an opportunity for review, is no more. Exactly how a person gets a review is an unknown, but it will likely involve a hearing in front of a Judge with an opportunity for the offender, the victim, and the state to be heard. Such a procedure should hopefully improve the usefulness of the registry by ensuring that it is not over-inclusive with individuals unlikely to commit future crime.
It is however doubtful that removal will restore any civil rights, and offenders looking to be removed and to have their civil rights restored will also need to seek a pardon. This is sure to be a lengthy and expensive process, but you cannot put a price on liberty.