A couple of weeks ago, the South Carolina Supreme Court affirmed the satellite monitoring of a sex offender for the rest of her life. This ruling received some attention from other blogs, including Sentencing Law and Policy and The Volokh Conspiracy. At the latter link, Eugene Volokh provides this clear summary:
When Jennifer Dykes was 26, she had a sexual relationship with a 14-year-old girl. She was convicted of “lewd act on a minor,” and was sentenced to (in effect) 3 years in prison and 5 years’ probation. She violated her probation in various ways (flaking out on sex offender counseling, moving without notifying her probation agent, and more). Under South Carolina law, people guilty of lewd acts with minors must be placed on lifetime satellite monitoring, and the same is true for people convicted before the satellite monitoring statute’s effective date if they violate probation after that effective date.
Dykes sued to set aside the lifetime monitoring as a violation of the Fourteenth Amendment, but a majority of the South Carolina Supreme Court disagreed (State v. Dykes (S.C. May 22, 2013)). The lead opinion (for two Justices) concluded that such lifetime monitoring is constitutional if it has a rational basis, and found that there is such a rational basis. One Justice concurred in the judgment without opinion. Two dissenting Justices reasoned that such lifetime monitoring must pass strict scrutiny, which this law didn’t, because it didn’t provide for “actual consideration of [each offender's] likelihood to reoffend.”
The opinion, it turns out, relies heavily on the civil-criminal dichotomy. Dykes argued that the mandatory lifetime monitoring—imposed without any regard for her likelihood of reoffending—violated her Fourteenth Amendment due process rights by infringing her fundamental right to be “let alone.” The lead opinion disagrees: “Our rejection of Dykes’ fundamental right argument flows in part from the premise that satellite monitoring is predominantly civil.” It continues, “Where, as here, the legislature deems a statutory scheme civil, ‘only the clearest proof’ will transform a civil regulatory scheme into that which imposes a criminal penalty.”
This strikes me as peculiar logic, for it seems to assume that only criminal penalties limit fundamental rights. Yet all the time, civil measures bear upon individuals’ fundamental rights. Consider the civil commitment of sex offenders, addressed in my last post; there is no question that detaining someone indefinitely implicates that person’s fundamental rights, and the fact that it is done through a civil measure rather than a criminal one does not make the rights at stake any less fundamental.
The dissent makes this very point in a footnote:
I note as well my disagreement with the majority’s assertion that merely because it is civil in nature, rather than criminal, the statute does not implicate a fundamental right. Whether a statute is characterized as civil or criminal is immaterial to this analysis and certainly not dispositive. See Luckabaugh, 351 S.C. at 135–140, 568 S.E.2d at 344–347 (recognizing that although the Sexually Violent Predator Act is civil and non-punitive in nature, it nevertheless infringes the “fundamental right to liberty, free from bodily restraint”).
The lead opinion’s reliance on the civil-criminal distinction does not end there, however. It states:
This Court has examined this language [in the statute describing the law's intention] and held “it is clear the General Assembly did not intend to punish sex offenders, but instead intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” Thus, a likelihood of re-offending lies at the core of South Carolina’s civil statutory scheme. [Citation omitted.]
The result, according to the opinion, is that the rational relationship test is the correct one to apply, and the imposition of satellite monitoring is indeed rationally related to the ends “of protecting the public from sex offenders and aiding law enforcement.”
I believe the court did not conduct a sufficiently thorough examination to determine whether the law was in fact sufficiently non-punitive. According to the court, all the legislature needed to do was apply the non-punitive label. And it’s true that the label matters—to a great extent. But the courts have developed two interrelated tests to determine whether a law is civil or criminal (i.e., whether it punishes or merely regulates). The first is the “intent-effects” test, which first asks whether the legislature intended to establish a punitive measure, then considers whether the law is so punitive in effect as to overcome the punitive intent. The second is the Mendoza-Martinez factors, about which I previously blogged. Those factors help analyze the effects prong. The South Carolina Supreme Court’s lead opinion never reached the effects prong.
I concede that even if it had, it probably would not have found that the effects provided “the clearest proof” that the law was actually punitive. Nonetheless, the opinion’s reasoning makes it seem like a textbook case of the legal labeling game. The court conducted a very limited analysis before deeming the law non-punitive, resulting in fewer procedural protections, thereby making it easier for the state to abridge someone’s liberties.