Could South Carolina require an existing sex offender registrant to register every ninety days after a 2010 law change?

Plain-English summary

In 2010, South Carolina's sex offender registry coordinator asked whether a person who had registered twice a year could be required to register every ninety days under a newly enacted provision for federal Tier III offenders. The Attorney General said the ninety-day requirement could apply to a person in that category. It concluded the change was not barred by the federal or state prohibition on ex post facto laws.

The opinion relied on the South Carolina Supreme Court's earlier description of the registry law as protective rather than punitive. It applied that reasoning to a change in registration frequency for someone whose offense predated the change. The answer was limited to persons within the referenced Tier III classification.

Currency note

This opinion was issued in 2010. 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

Did the 2010 opinion permit a move from twice-yearly to ninety-day registration? A: Yes, for someone within the provision's federal Tier III classification. The AG said the change did not violate the ex post facto prohibition.

Why did the AG reject the ex post facto objection?
A: It relied on a South Carolina Supreme Court decision that described the registry law as nonpunitive in purpose and effect despite retroactive application.

Did the opinion address every registrant?
A: No. Its answer concerned people classified as Tier III under the federal law referenced by the 2010 state provision.

Background and statutory framework

Act No. 212 of 2010 provided that a person classified as a Tier III offender under the federal Adam Walsh law was required to register every ninety days. The AG compared that provision with the state Supreme Court's ex post facto analysis of the registry statute in State v. Walls.

Citations and references

The opinion quoted Section 23-3-460(B) and discussed State v. Walls.

Official title

Whether a previously biannual registrant classified as Tier III must register every ninety days

Requester

Natalie H. Spires, Sex Offender Registry Coordinator, South Carolina Law Enforcement Division

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-14-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/spires-n-h-os-9160-10-14-10-adam-walsh-child-protection-safety-act.pdf

Original opinion text

HENRY MCMASTER
A'.ITORNEY GENERAL

October 14, 2010

Ms. Natalie H. Spires
Sex Offender Registry Coordinator
South Carolina Law Enforcement Division
P. 0. Box 21398
Columbia, South Carolina 29221-1398
Dear Ms. Spires:

In a letter to this office you referenced a provision of Act No. 212 of 2010 which states in Section 23-3-460(B),
[a] person classified as a Tier Ill offender by Title I of the fede~al Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248), the Sex Offender Registration and Notification Act (SORNA), is required to register every ninety days. You have questioned whether individuals who formerly only had to register biannually can now be required to register every ninety days if they come within the referenced classification.

In State v. Walls, 348 S.C. 26, 30, 558 S.E.524, 525-526 (2002), the South Carolina Supreme Court stated that The United States and South Carolina Constitutions specifically prohibit the passage of ex post facto laws. State v. Wilson, 315 S.C. 289, 433 S.E.2d 864 (1993) (citing U.S. Const. art. 1, § 10; S.C. Const. art. 1, § 4). For a law to fall within ex post facto prohibitions, two critical elements must be present. First, the law must be retroactive so as to apply to events occurring before its enactment. Second, the law must disadvantage the offender affected by it. State v. Wilson, supra. See also Jernigan v. State, 340 S. C. 256, 531 S.E.2d 507 (2000) ( ex post facto violation occurs when a change in the law retroactively alters definition of crime or increases punishment for crime). For the ex post facto clause to be applicable, the statute or the provision in question must be criminal or penal in purpose and nature. State v. Huiett, 302 S.C. 169, 394 S.E.2d486 (1990)(citingFlemmingv. Nestor, 363 U.S. 603, 80 S.Ct.1367, 4 L.Ed.2d 1435 (1960)).

REMBERT

c. DENNlS BUlLDING • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSfMll..E 803·253-6283

Ms. Spires
Page2
October 14, 2010

The Supreme Court determined that this State's Sex Offender Registry Act (hereinafter "the Act"), S.C. Code Ann.§§ 24-3-400 et seq., met the first prong of an ex post facto prohibition in that it was retroactive, i.e., it applied to a defendant whose offense was committed prior to the enactment of the Act. However, the Court further determined that
.. .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. Hence, the language indicates the General Assembly's intention to create a non-punitive act. We find the Act is not so punitive in purpose or effect as to constitute a criminal penalty. Accordingly, the Act does not violate the ex post facto clauses of the state or federal constitutions. 348 S.C. at 31. Consistent with the above, in the opinion of this office, it would not be an ex post facto prohibition to require an individual who formerly had to register biannually to now register every ninety days if he or she comes within the category of an individual classified as a Tier III offender as set forth above. If there are any questions, please advise.

Very truly yours,
Henry McMaster

~t/7y General

(Jf~r!-1. fb,~'-By:

REVIEWED AND APPROVED BY:

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bJY/~.

Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General