Could a South Carolina voter with a felony conviction register after completing parole while still subject to lifetime electronic monitoring?

Official title

Opinion regarding the interpretation of Section 7-5-120(B)(3) of the South Carolina Code. Specifically, pursuant to the terms of Section 7-5-120(B)(3), a Fairfield County resident who was convicted of a felony was removed from the active voting rolls.

Requester

John E. James, Esq., Fairfield County Attorney

Plain-English summary

Fairfield County's attorney asked whether lifetime electronic tracking could keep a person convicted of a felony from voting after the person had completed the sentence and probation or parole. The Attorney General concluded that it could not. The voting statute treated probation and parole as part of the sentence, but the courts had characterized the electronic monitoring requirement as civil and nonpunitive.

The opinion addressed a person who had already served the sentence and any applicable probation or parole. It did not say that a person could register while those parts of a sentence were still in effect.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did lifetime electronic monitoring count as probation or parole for voting purposes? A: The AG said no. It described the monitoring requirement as civil and distinct from the criminal sentence.

Q: Was the person in the county attorney's question still disqualified after completing the sentence? A: The opinion concluded that monitoring alone did not disqualify a person who had completed the sentence, including any probation or parole.

Q: Did the opinion remove the voting restriction during probation or parole? A: No. Its conclusion depended on those terms having been completed.

Background and statutory framework

Section 7-5-120(B)(3) disqualified a person convicted of a felony or an election-law offense until service of the sentence, including probation and parole, unless sooner pardoned. Section 23-3-540 imposed electronic monitoring for certain sex-related offenses. The opinion relied on South Carolina decisions describing that monitoring as a civil requirement rather than punishment. It read the voting statute's reference to probation and parole as excluding monitoring from the sentence for this purpose.

Citations

• Section 7-5-120(B)(3)
• Section 23-3-540

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-19-2014-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/08/James-John-FINAL-OPINION-OS-9729-08-19-2014-00421293xD2C78.pdf

Original opinion text

Alan Wilson

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Attorney General

August 19. 2014

John E. James, Esq.
Fairfield County Attorney

P.O. Box 329 '
Winnshoro. S.C. 29180
Dear Mr. James:

We are in receipt of your letter requesting an opinion regarding the interpretation of

Section 7-5-12()(B)(3) of the South Carolina Code.1 Specifically, you explain that, pursuant to the terms of Section 7-5-120(B)(3). a Fairfield County resident who was convicted of a felony was removed from the active voting rolls.

Continuing, you explain that individual has now

"completed his sentence and supposedly his probation but will be required to submit to tracking

and monitoring for life."

In light of this you ask if "the requirement for lifetime tracking and

monitoring

considered

[could]

be

as

probation/parole

and

result

in

the

individual's

disqualification for registering to vote, and voting?" Our response follows.

Law/Analvsis

Section 23-3-540 of the South Carolina Code requires individuals "convicted of certain

sex-related offenses" to "submit to electronic monitoring for the duration of the time the individual is required to remain on the sex offender registry." In re: Justin B.. 405 S.C. 391 . 393, 747 S.E.2d 774. 775 (2013) (citing S.C. Code Ann. § 23-3-540(A)-(H) (Supp. 2012)).

In some

cases, such as the one mentioned in your letter, this results in electronic tracking and monitoring for life. ICg^ In re: Justin B.. 405 S.C. at 394. 747 S.E.2d at 775. As explained by our Supreme Court, the intent in drafting and passing this legislation, which as a whole is known as Jessica's Law. is to "promote the state's fundamental right to provide for the public health, welfare, and

safety of its citizens" in light of the fact that "statistically, sex offenders pose a high risk of reoffending." In re: Justin B.. 405 S.C. at 405, 747 S.E.2d at 781 (citing S.C. Code Ann. § 23-3 400 (2007)); State v. Dvkes. 403 S.C. 499. 507. 744 S.E.2d 505. 510 (2013) (concluding the "likelihood of re-offending" serves as the "core" of South Carolina's electronic monitoring legislation). On multiple occasions our Supreme Court explained Section 23-3-540's electronic tracking and monitoring requirements arc. like sex offender registries, civil in nature.

State v.

Nation. 408 S.C. 474. — . 759 S.E.2d 428. 432 (2014) ("Electronic monitoring is not a

1 Section 7-5-l20(|})(3) of the Code explains "[a] person is disqualified from being registered or voting if he is convicted of a felony or offenses against the election laws, unless the disqualification has been removed by service of the sentence, including probation and parole time unless sooner pardoned."

S.C. Code Ann. § 7-5- 1 20(B)(3)

(2013 Supp.).

Rembert C. Dennis Building

• Post Ofhce Box 11549

• Columbia, SC 29211-1549

Telephone 803-734-3970

•

Facsimile 803-253-6781

John E. James, Esq.

Page 2
August 19, 2014

punishment, but a civil requirement.") (internal quotations omitted) (emphasis added); In re: Justin B.. 405 S.C. at 409, 747 S.E.2d at 783 ("[SJection 23-3-540 is a civil remedy."); Dvkes.

403 S.C. at 506, 744 S.E.2d at 509 ("[SJatelite monitoring is predominantly civil."); Smith v. Doe. 538 U.S. 84, 93 (2003) (holding that the imposition of restrictive measures on sex offenders

adjudged to be potentially dangerous is a legitimate non-punitive governmental objective); see also Williams v. State. 378 S.C. 511, 515-16, 662 S.E.2d 615, 618 (Ct. App. 2008) (explaining sex offender registration laws do not constitute a criminal penalty) In re: Ronnie A.. 355 S.C.

407, 409, 585 S.E.2d 311, 312 (2003) (finding lifelong sex offender registry is non-punitive);

State v. Walls. 348 S.C. 26, 30, 558 S.E.2d 524, 526 (2002) (concluding that sex offender registration is non-punitive in purpose). Stated differently, electronic tracking and monitoring is

non-punitive and "does not impose an affirmative disability or restraint." In re: Justin B.. 405 S.C. at 406, 747 S.E.2d at 782.

With this in mind, we now return to your question—whether a requirement of lifetime tracking and monitoring, authorized pursuant to Section 23-3-540, could, like "probation or parole," be considered part of an individual's sentence for purposes of Section 7-5- 120(B)(3). We believe it cannot.

As noted in your letter, Section 7-5- 120(B)(3) prohibits a person convicted of a felony or

offenses against election laws from registering to vote or voting until such an individual has served their sentence. S.C. Code Ann. § 7-5-1 20(B)(3). By its terms. Section 7-5-1 20(B)(3) explains that an individual's sentence includes "probation and parole time unless sooner

pardoned." Id. However, as noted in your letter. Section 7-5-1 20(B)(3)' s terms do not specifically address the question of whether electronic tracking and monitoring should be treated as part of an individual's sentence for purposes of registering to vote and voting.

In determining whether electronic tracking and monitoring should, like probation and parole, be considered part of an individual's sentence for purposes of registering to vote and voting, we first note the Legislature, by failing to address this question within Section 7-5120(B)(3), may have already provided an answer. Eg. Hodges v. Rainev. 341 S.C. 79, 86, 533 S.E.2d 578, 582 (2000) (explaining the rule of statutory construction known as "expressio unius est exclusio alterius" or ^inclusio unius est exclusio aiterius" meaning "to express or include one

thing implies the exclusion of another, or of the alternative" applies when ascertaining legislative intent). Indeed, had the Legislature wanted electronic tracking and monitoring to be included as part of an individual's sentence for purposes of Section 7-5- 120(B)(3), it clearly could have done so as it did with parole and probation. As a result, it could certainly be argued that the Legislature, by failing to require individuals to complete electronic tracking and monitoring prior to registering to vote and voting, intended to permit individuals subject to such requirements to both register to vote and vote.

John E. James, Esq.
Page 3
August 19, 2014

Moreover, because our Supreme Court has already determined electronic tracking and monitoring is civil, non-punitive and does not constitute an affirmative disability or restraint, we believe these requirements, unlike both parole and probation, cannot be viewed as part of an individual's sentence for purposes of 7-5-1 20(B)(3).

As noted above, our Courts have

consistently explained electronic monitoring and tracking is civil in nature and unlike a criminal sentence, is "not a punishment."

Nation. 408 S.C. at ™, 759 S.E.2d at 432 ("Electronic

monitoring is not a punishment, but a civil requirement.") (internal quotations omitted)

(emphasis added); In re: Justin B.. 405 S.C. at 409, 747 S.E.2d at 783 ("[SJection 23-3-540 is a civil remedy.");

Dvkes. 403

predominantly civil.").

S.C.

at 506, 744 S.E.2d at 509 ("[SJatelite monitoring

is

This is substantially different from parole, which our Courts have

explained "means a leave of absence from prison during which the prisoner remains in legal

custody" as well as probation, defined as "an act of grace or clemency" allowing a "convicted person" to avoid imprisonment. See Sanders v. MacDougall. 244 S.C. 160, 163, 135 S.E.2d 836,

837 (1964) ("The word parole . . . means a leave of absence from prison during which the prisoner remains in legal custody until the expiration of his sentence."); see also 26 S.C. Jur., Probation, Parole, and Pardon, § 8 (citing Black's Law Dictionary (5th Ed.)).

Accordingly,

because South Carolina law does not treat electronic tracking and monitoring as part of an

individual's sentence, as it does parole and probation, we believe electronic tracking and monitoring cannot be read as being part of an individual's sentence for purposes Section 7-5-

120(B)(3) of the Code.

As a result, an individual who has committed "a felony or offense

against the election laws" but has served their sentence, including any probation or parole, would, consistent with the terms of Section 7-5- 120(B)(3), not be disqualified from either registering to vote or voting. Conclusion

In conclusion, it is the opinion of this Office that because Section 7-5- 120(B)(3) of the South Carolina Code does not include electronic tracking and monitoring as part of an individual's sentence, we believe, consistent with South Carolina law defining electronic tracking and monitoring as civil and non-punitive, that Section 7-5-1 20(B)(3)'s use of the phrase "probation and parole" does not include electronic tracking and monitoring.

As a result, an

individual subject to such a requirement, who has, as indicated in your letter, completed their sentence and any applicable terms of probation or parole, is not disqualified from either registering to vote or voting pursuant to Section 7-5- 120(B)(3). Sincerely,^

Brendan McDonald
Assistant Attorney General

John E. James, Esq.
Page 4
August 19,2014

REVIEWED AND APPROVED BY:

i^oberl D. Cook
Solieitor General