The coming wave of tracker attacks

Nearly 11 years have passed since South Carolina enacted “Jessie’s Law” — named after a Florida girl who died at the hands of a registered sex offender — and began strapping electronic tracking devices to the ankles of defendants convicted of certain sex crimes.

The law allows offenders to petition the court for removal of their GPS units after a decade. And a wave of petitions is coming. The first was heard in Lexington County, where Circuit Court Judge William Keesley granted a Pickens man’s motion to remove a Jessie’s Law tracking device on April 24.

Jeffery Lindsey, now 34, was convicted of committing or attempting lewd acts on a child in 2005. His attorney, James Snell, said the acts were “consensual and probably would have been legal in half the world.”

During the removal hearing, Snell said Lindsey showed that he had stable work and family life and had not run afoul of the law or violated his monitoring conditions by, for instance, removing or tampering with the GPS device.

“The statute provides that if the court makes a finding beyond a clear and convincing standard that there’s no useful purpose in requiring monitoring and the individual has complied with the requirements of monitoring for 10 years they can let them off,” Snell added.

He said Lindsey’s case for removal was relatively straightforward and therefore expert testimony was unnecessary, but suggested that in the “correct situation it would probably be advisable to get a psychological evaluation to determine whether there was a need for monitoring.”

Jessie’s Law applies to a wide range of sex crimes, from criminal sexual conduct with a minor to engaging a child for sexual performance, kidnapping by offenders who are not parents of their victims and child trafficking that involves a sex offense.

Matthew Buchanan, an attorney for the South Carolina Department of Probation, Parole and Pardon Services in Columbia who was involved with Lindsey’s hearing, said the agency will not take a position on whether an offender should be allowed to shed a tracking device. Instead, he said DPPPS will simply present data about whether the offender wore and maintained the GPS unit as required.

“We’re just leaving it up to the courts,” he said. “I think the petitioner and the petitioner’s attorney are going to set the tone with what they try to present. Of course, the solicitor’s office is required to be notified and we’d look to them to present information regarding the original offense.”

The solicitor’s office also must contact the victim to determine whether he or she opposes GPS removal, Buchanan added.

One done, hundreds ahead

Lindsey’s petition marked the beginning of 565 removal hearings that are expected to take place over the next decade. Seventeen more offenders are eligible to petition the courts for removal this year. The number rises to 48 in 2018, dips to 35 in 2019 then spikes to 78 in 2020, 75 in 2021, 77 in 2022, 80 in 2023, 78 in 2024 and 77 in 2025.

“If the petition is denied, there’s a five-year waiting period and then they’re eligible to petition again so we might see some carryover,” Buchanan said. “Considering it’s spread out from county to county we don’t think it will be that terrible.”

He added that DPPPS began notifying court administrators last year to save the state’s judges from being blindsided.

Wait 10 years, or move now

During Lindsey’s hearing, Snell said he learned of an apparent loophole in South Carolina’s GPS tracking law: Offenders who don’t want to wait 10 years to petition for removal can leave the state and live in a jurisdiction that either does not electronically track sex offenders or lacks  laws that would require newly arrived offenders to wear GPS monitors.

Aside from ditching their ankle monitors, offenders who leave also would avoid paying the $240 monthly fees to DPPPS to offset the costs of electronic monitoring — two major incentives to pack up and head out.

“If you move out of state the monitor comes right off,” Snell said. “And I’m not aware of any prohibitions on moving out of state and visiting South Carolina.”

Because the courts have held that GPS tracking is not a punishment the programs are not considered “supervision,” which means offenders don’t have to seek permission to leave, Buchanan said: “If they decide to move we’re not going to stop them.”

At least 40 other states, including North Carolina, have laws that saddle certain sex offenders with tracking devices. But whether South Carolina transplant offenders would have to wear GPS monitors in those jurisdictions is not entirely clear.

In 2015, the U.S. Supreme Court held in State v. Grady that North Carolina’s law allowing for the lifetime GPS monitoring of sex offenders was a search under the Fourth Amendment as it was designed to obtain information about a person’s whereabouts. But the court did not rule on the constitutionality of the law.

Since then, more than two dozen offenders have petitioned to have their tracking devices removed and all have been denied by the state parole board. North Carolina allows offenders who are subject to lifetime monitoring to petition for removal one year after they’ve completed their sentences and are no longer on probation or parole — but proving that removal will not jeopardize public safety is quite difficult, apparently.

Seeking a way off the registry

North Carolina also allows offenders to petition to be removed from the state’s sex offender registry — a statutory option that is unavailable to offenders in South Carolina. But Georgetown criminal defense lawyer Elise Crosby hopes that will change.

She convinced a trial judge and, later, the state Supreme Court to remove client John Johnson from the lifetime sex offender registry in 2014. The courts held that Johnson, who at age 17 allegedly kissed and fondled a 13-year-old girl, could have his name nixed from the registry because he was unlikely to reoffend.

“But they still didn’t give a path for removal,” Crosby said. She argues that the 10-year petition time for GPS devices also should apply to the registry, as does Jon Ozmint, a Columbia lawyer who formerly served as a prosecutor and director of the South Carolina Department of Corrections.

“Most courts and legislatures are recognizing that being on the registry or monitoring affects your life in such a drastic way that it really is punishment and therefore there’s got to be a way to petition for removal,” he said.

But the South Carolina Supreme Court punted to the Legislature earlier this month when it rejected a constitutional challenge to the statutory requirement that a juvenile offender be registered as a sex offender and wear an electronic monitor for life.

Justice John Few wrote in the May 3 decision, In the Interest of Justin B, that “if the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature—not the courts.”

State Rep. Todd Rutherford, a Columbia lawyer and Democrat, has been pushing a bill that would allow certain juvenile sex offenders to petition for removal from the registry. But the proposal has stalled in the House Judiciary Committee.

Follow Phillip Bantz on Twitter @SCLWBantz