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COMMITTEE REPORT
May 24, 2006
S. 1267
S. Printed 5/24/06--H. [SEC 5/25/06 3:16 PM]
Read the first time April 26, 2006.
To whom was referred a Bill (S. 1267) to amend Section 23-3-540, Code of Laws of South Carolina, 1976, relating to the electronic monitoring of sex offenders, so as to establish the persons, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Article 7, Chapter 3, Title 23 of the 1976 Code is amended by adding:
"Section 23-3-545. (A) If a person is convicted of wilfully violating a term or condition of active electronic monitoring pursuant to section 23-3-540(M), the court may impose other terms and conditions considered appropriate and may continue the person on active electronic monitoring, or the court may revoke the active electronic monitoring and impose a sentence of up to ten years for the violation. A person who is incarcerated for a revocation is eligible to earn work credits, education credits, good conduct credits, and other credits which would reduce the sentence for the violation to the same extent he would have been eligible to earn credits on a sentence of incarceration for the underlying conviction. A person who is incarcerated for a revocation pursuant to the provisions of this subsection is not eligible for parole.
(B) If a person's electronic monitoring is revoked by the court and the court imposes a period of incarceration for the revocation, the person must be placed back on active electronic monitoring when the
person is released from incarceration.
(C) A person may be sentenced for successive revocations, with each revocation subject to a ten-year sentence. The maximum aggregate amount of time the person may be required to serve when sentenced for successive revocations may not exceed the period of time the person is required to remain on the sex offender registry."
SECTION 2. Section 23-3-540 of the 1976 Code, as added by Act 141 of 2005, is amended to read:
"Section 23-3-540. (A) Prior to an offender's release after completion of a term of imprisonment, being placed on parole, being placed under community supervision, being placed under a community supervision program, or when an offender is sentenced to probation, the Department of Probation, Parole and Pardon Services shall place the offender under a system of active electronic monitoring that identifies the location of the offender and that can produce, upon request, reports or records of the offender's presence near or within a crime scene or prohibited area or the offender's departure from a specified geographic location Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, the court must order that the person, upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.
(B) Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for any other offense listed in subsection (G), the court may order that the person upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.
(B)(C) An offender A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a term of probation, parole, community supervision, or a community supervision program must be ordered by the court or agency with jurisdiction to be placed monitored by the Department of Probation, Parole and Pardon Services under a system of with an active electronic monitoring device that identifies the location of the offender and that can produce, upon request, reports or records of the offender's presence near or within a crime scene or prohibited area or the offender's departure from a specified geographic location.
(D) A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a term of probation, parole, community supervision, or a community supervision program, may be ordered by the court or agency with jurisdiction to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.
(E) A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a provision of this article, must be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.
(F) A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a provision of this article, may be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.
(C)(G) This section applies to an offender a person who has been:
(1) convicted of, pled guilty or nolo contendere to, or been adjudicated delinquent for any of the following offenses:
(a) criminal sexual conduct with minors, a minor in the first degree (Section 16-3-655(1)(A));
(b) criminal sexual conduct with minors, a minor in the second degree (Section 16-3-655(B)). If evidence is presented at the criminal proceeding and the court makes a specific finding on the record that the conviction obtained for this offense resulted from illicit consensual sexual conduct, as contained in Section 16-3-655(3)(B)(2), provided the offender is eighteen seventeen years of age or less, or consensual sexual conduct between persons under sixteen years of age, then the convicted person is not an offender and is not required to register be electronically monitored pursuant to the provisions of this article section;
(c) engaging a child for sexual performance (Section 16-3-810);
(d) producing, directing, or promoting sexual performance by a child (Section 16-3-820);
(e) criminal sexual conduct: assaults with intent to commit (Section 16-3-656) involving a minor;
(f) committing or attempting lewd act upon child under sixteen (Section 16-15-140);
(g) violations of Article 3, Chapter 15 of Title 16 involving a minor;
(h) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;
(i) criminal solicitation of a minor if the purpose or intent of the solicitation or attempted solicitation was to:
(i) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5);
(ii) perform a sexual activity in the presence of the person solicited (Section 16-15-342); or
(2) ordered as a condition of sentencing to be included in the sex offender registry pursuant to Section 23-3-430(D) for an offense involving a minor, except that the provisions of this item may not be construed to apply to a person seventeen years of age or less who engages in illicit but consensual sexual conduct with another person who is at least fourteen years of age as provided in Section 16-3-655(B)(2).
(D)(H) The offender person shall remain under the system of be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device for the duration of the time the offender person is required to remain on the sex offender registry pursuant to the provisions of this article, unless the offender person is committed to the custody of the State. Ten years from the date the person begins to be electronically monitored, the person may petition the chief administrative judge of the general sessions court for the county in which the person was ordered to be electronically monitored for an order to be released from the electronic monitoring requirements of this section. The person shall serve a copy of the petition upon the solicitor of the circuit and the Department of Probation, Parole and Pardon Services. The court must hold a hearing before ordering the person to be released from the electronic monitoring requirements of this section, unless the court denies the petition because the person is not eligible for release or based on other procedural grounds. The solicitor of the circuit, the Department of Probation, Parole and Pardon Services, and any victims, as defined in Article 15, Chapter 3, Title 16, must be notified of any hearing pursuant to this subsection and must be given an opportunity to testify or submit affidavits in response to the petition. If the court finds that there is clear and convincing evidence that the person has complied with the terms and conditions of the electronic monitoring and that there is no longer a need to electronically monitor the person, then the court may order the person to be released from the electronic monitoring requirements of this section. If the court denies the petition or refuses to grant the order, then the person may re-file a new petition every five years from the date the court denies the petition or refuses to grant the order. A person may not petition the court if the person is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140.
(E)(I) The offender person shall follow instructions provided by the Department of Probation, Parole and Pardon Services to maintain the active electronic monitoring device in working order. Incidental damage or defacement of the active electronic monitoring device must be reported to the Department of Probation, Parole and Pardon Services within two hours. An offender A person who fails to comply with the reporting requirement of this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.
(F)(J) The offender person shall abide by any other terms and conditions set forth by the Department of Probation, Parole and Pardon Services with regard to the active electronic monitoring device and electronic monitoring program.
(G)(K) The offender person must be charged a fee in accordance with Section 24-21-85 for the cost of the active electronic monitoring device and the operation of the active electronic monitoring device for the duration of the time the person is required to be electronically monitored. The Department of Probation, Parole and Pardon Services may exempt a person from the payment of a part or all of the cost during a part or all of the duration of the time the person is required to be electronically monitored, if the Department of Probation, Parole and Pardon Services determines that exceptional circumstances exist such that these payments cause a severe hardship to the person. The payment of the cost must be a condition of supervision of the person and a delinquency of two months or more in making payments may operate as a violation of a term or condition of the electronic monitoring. All fees generated by this subsection must be retained by the Department of Probation, Parole and Pardon Services, carried forward, and applied to support the active electronic monitoring of sex offenders.
(H)(L) A person who intentionally removes, tampers with, defaces, alters, damages, or destroys an active electronic monitoring device is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years. This subsection does not apply to a person or agent authorized by the Department of Probation, Parole and Pardon Services to perform maintenance and repairs to the active electronic monitoring devices.
(M)(1) A person who completes his term of incarceration and the maximum term of probation, parole, or community supervision and who wilfully violates a term or condition of electronic monitoring, as ordered by the court or determined by the Department of Probation, Parole and Pardon Services is guilty of a felony and, upon conviction, must be sentenced in accordance with the provisions of Section 23-3-545.
(2) Notwithstanding the provisions of Section 24-21-290, information gathered by a probation agent pursuant to the provisions of Section 24-21-540 is admissible in a criminal prosecution.
(N) The Department of Corrections shall notify the Department of Probation, Parole and Pardon Services of the projected release date of an inmate serving a sentence, as described in this section, at least one hundred eighty days in advance of the person's release from incarceration. For a person sentenced to one hundred eighty days or less, the Department of Corrections shall immediately notify the Department of Probation, Parole and Pardon Services.
(O) When an inmate serving a sentence as described in this section is released on electronic monitoring, a victim who has previously requested notification and the sheriff's office in the county where the person is to be released must be notified in accordance with the requirements of Article 15, Chapter 3 of Title 16.
(P) As used in this section, 'active electronic monitoring device' means a mechanism utilized by the Department of Probation, Parole and Pardon Services in conjunction with a system that actively monitors and identifies a person's location and that timely reports or records the person's presence near or within a crime scene or prohibited area or the person's departure from a specified geographic location.
(Q) Except for juveniles released from the Department of Corrections, all juveniles adjudicated delinquent in family court, who are required to be monitored pursuant to the provisions of this article by the Department of Probation, Parole and Pardon Services, or who are ordered by a court to be monitored must be supervised, while under the jurisdiction of the family court or Board of Juvenile Parole, by the Department of Juvenile Justice. The Department of Probation, Parole and Pardon Services shall report to the Department of Juvenile Justice all violations of the terms or conditions of electronic monitoring for all juveniles supervised by the department, for as long as the family court or Juvenile Parole Board has jurisdiction over the juvenile. If the Department of Juvenile Justice determines that a juvenile has violated a term or condition of electronic monitoring, the department shall immediately notify local law enforcement of the violation."
SECTION 3. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 4. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 5. This act takes effect upon approval by the Governor, except that the provisions of SECTION 2 regarding the requirements of active electronic monitoring of certain offenders by the Department of Probation, Parole and Pardon Services does not take effect until the General Assembly funds the department to the extent necessary to implement those provisions./
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
TO AMEND SECTION 23-3-540, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ELECTRONIC MONITORING OF SEX OFFENDERS, SO AS TO ESTABLISH THE PERSONS WHO MUST BE ELECTRONICALLY MONITORED AND TO ESTABLISH THE PROCEDURES FOR MONITORING SUCH PERSONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 23-3-540 of the 1976 Code is amended to read:
"Section 23-3-540. (A) Prior to an offender's release after completion of a term of imprisonment, being placed on parole, being placed under community supervision, being placed under a community supervision program, or when an offender is sentenced to probation, the Department of Probation, Parole and Pardon Services shall place the offender under a system of active electronic monitoring that identifies the location of the offender and that can produce, upon request, reports or records of the offender's presence near or within a crime scene or prohibited area or the offender's departure from a specified geographic location Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for an offense listed in subsection (D), the court must order that the person upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.
(B) An offender A person who is required to register pursuant to this article for an offense listed in subsection (D), and who violates a term of probation, parole, community supervision, or a community supervision program must be ordered by the court or agency with jurisdiction to be placed monitored by the Department of Probation, Parole and Pardon Services under a system of with an active electronic monitoring device that identifies the location of the offender and that can produce, upon request, reports or records of the offender's presence near or within a crime scene or prohibited area or the offender's departure from a specified geographic location.
(C) A person who is required to register pursuant to this article for an offense listed in subsection (D), and who violates a provision of this article, must be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.
(C)(D) This section applies to an offender a person who has been:
(1) convicted of, pled guilty or nolo contendere to, or been adjudicated delinquent for any of the following offenses:
(a) criminal sexual conduct with minors, a minor in the first degree (Section 16-3-655(1)(A));
(b) criminal sexual conduct with minors, a minor in the second degree (Section 16-3-655(B)). If evidence is presented at the criminal proceeding and the court makes a specific finding on the record that However, if the conviction obtained for this offense resulted from consensual sexual conduct, as contained in Section 16-3-655(3)(B), provided the offender is eighteen years of age or less, or consensual sexual conduct between persons under sixteen years of age, the convicted person is not an offender and is not required to register be electronically monitored pursuant to the provisions of this article section;
(c) engaging a child for sexual performance (Section 16-3-810);
(d) producing, directing, or promoting sexual performance by a child (Section 16-3-820);
(e) criminal sexual conduct: assaults with intent to commit (Section 16-3-656) involving a minor;
(f) committing or attempting lewd act upon child under sixteen (Section 16-15-140);
(g) violations of Article 3, Chapter 15 of Title 16 involving a minor;
(h) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;
(i) criminal solicitation of a minor if the purpose or intent of the solicitation or attempted solicitation was to:
(i) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5);
(ii) perform a sexual activity in the presence of the person solicited (Section 16-15-342); or
(2) ordered as a condition of sentencing to be included in the sex offender registry pursuant to Section 23-3-430(D) for an offense involving a minor.
(D)(E) The offender person shall remain under the system of be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device for the duration of the time the offender person is required to remain on the sex offender registry pursuant to the provisions of this article, unless the offender person is committed to the custody of the State.
(E)(F) The offender person shall follow instructions provided by the Department of Probation, Parole and Pardon Services to maintain the active electronic monitoring device in working order. Incidental damage or defacement of the active electronic monitoring device must be reported to the Department of Probation, Parole and Pardon Services within two hours. An offender A person who fails to comply with the reporting requirement of this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.
(F)(G) The offender person shall abide by any other terms and conditions set forth by the Department of Probation, Parole and Pardon Services with regard to the active electronic monitoring device and electronic monitoring program.
(G)(H) The offender person must be charged a fee in accordance with Section 24-21-85.
(H)(I) A person who intentionally removes, tampers with, defaces, alters, damages, or destroys an active electronic monitoring device is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years. This subsection does not apply to a person or agent authorized by the Department of Probation, Parole and Pardon Services to perform maintenance and repairs to the active electronic monitoring devices.
(J)(1) In addition to other penalties provided in this section, if the Department of Probation, Parole and Pardon Services determines that a person has violated a term or condition of electronic monitoring, a probation agent must initiate a proceeding in circuit court. The proceeding must be initiated pursuant to a warrant or a citation issued by a probation agent setting forth the person's violations. The court shall determine if:
(a) the terms and conditions of the electronic monitoring set forth by the Department of Probation, Parole and Pardon Services are fair and reasonable;
(b) the person has complied with the terms and conditions of electronic monitoring;
(c) the person should continue under electronic monitoring under the current terms and conditions;
(d) the person should continue under electronic monitoring under other terms and conditions as the court considers appropriate; and
(e) the person has wilfully violated a term or condition of electronic monitoring.
(2) If the court determines that a person has wilfully violated a term or condition of electronic monitoring, the court may impose other terms and conditions considered appropriate and may continue the person on electronic monitoring, or the court may revoke the electronic monitoring and impose a sentence of up to ten years for the violation. A person who is incarcerated for a revocation is eligible to earn work credits, education credits, good conduct credits, and other credits which would reduce the sentence for the violation to the same extent he would have been eligible to earn credits on a sentence of incarceration for the underlying conviction. A person who is incarcerated for a revocation pursuant to the provisions of this subsection is not eligible for parole.
(3) If a person's electronic monitoring is revoked by the court and the court imposes a period of incarceration for the revocation, the person must be placed back on electronic monitoring when the person is released from incarceration.
(4) A person may be sentenced for successive revocations, with each revocation subject to a ten-year sentence. The maximum aggregate amount of time the person may be required to serve when sentenced for successive revocations may not exceed the period of time the person is required to remain on the sex offender registry.
(K) The Department of Corrections shall notify the Department of Probation, Parole and Pardon Services of the projected release date of an inmate serving a sentence, as described in this section, at least one hundred eighty days in advance of the person's release from incarceration. For a person sentenced to one hundred eighty days or less, the Department of Corrections shall immediately notify the Department of Probation, Parole and Pardon Services.
(L) Victims, as defined in Article 15, Chapter 3 of Title 16, and the sheriff's office in the county where the person is to be released must be notified by the Department of Probation, Parole and Pardon Services when an inmate serving a sentence as described in this section is released on electronic monitoring.
(M) As used in this section, 'active electronic monitoring device' means a mechanism utilized by the Department of Probation, Parole and Pardon Services in conjunction with a system that actively monitors and identifies a person's location and that timely reports or records the person's presence near or within a crime scene or prohibited area or the person's departure from a specified geographic location.
(N) Except for juveniles released from the South Carolina Department of Corrections, all juveniles adjudicated delinquent in family court, who are required pursuant to this article to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic device, or who are ordered by a court to be so monitored must be supervised, while under the jurisdiction of the family court or Board of Juvenile Parole, by the Department of Juvenile Justice. The Department of Probation, Parole and Pardon Services shall report to the Department of Juvenile Justice any violation that occurs of the terms or conditions of electronic monitoring for any juvenile being supervised by the department, for as long as the family court or Juvenile Parole Board has jurisdiction over that individual. If the Department of Juvenile Justice determines that a juvenile has violated a term or condition of electronic monitoring, the department shall immediately notify the office of the circuit solicitor of the violation.
If a revocation proceeding is initiated by the circuit solicitor in the family court or if revocation procedures are begun by the Juvenile Parole Board, the procedures, determinations, and findings made by the court must be the same as those set forth for circuit court proceedings in subsection (J), as must be the authority to change, modify, or revoke the terms and conditions of electronic monitoring. However, while a juvenile remains within the jurisdiction of the family court or Juvenile Parole Board, the maximum term of confinement that can be imposed may not exceed that juvenile's twenty-first birthday."
SECTION 2. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 3. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 4. This act takes effect upon approval by the Governor.
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