If I Get a SC Pardon Do I Still Have to Register as a Sex Offender?
How do I get off the sex offender registry in South Carolina?
That’s a question that I hear a lot, and, in most cases, the answer is: You cannot. Ever.
South Carolina’s sex offender registry is not “tiered,” as it is in some states, and it a lifetime registration requirement whether you were convicted of child rape or something less outrageous like peeping tom. For most people, once you are on the registry in SC you will never get taken off.
But, what if you receive a SC pardon for the offense?
What is the Effect of a Pardon in SC?
SC law says that a pardon removes all the legal consequences of the crime and conviction, “direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty or whatever else the law has provided.”
Sex offender registry is certainly a collateral consequence of a conviction and clearly falls under the language above. In 2008, however, the SC legislature amended the sex offender registry statutes to specify that a sex offender cannot be removed from the registry unless “the pardon is based on a finding of not guilty specifically stated in the pardon.”
A pardon with a finding of “not guilty” will be rare, indeed.
Because the 2008 amendments were enacted after the pardon statute, they “supersede” the provisions of the pardon statute and make it near-impossible to be removed from the registry through the pardon process.
What if I Was Pardoned Before the 2008 Amendments?
If you received a person before the 2008 amendments to SC’s sex offender registry laws, you do not have to register as a sex offender per Edwards v. State Law Enforcement Division, a SC Supreme Court case that held that a person who received a pardon in 2004, before the amendments, was no longer required to register.
What if I Was Convicted Before the 2008 Amendments But not Pardoned?
If your conviction was prior to the 2008 amendments but your pardon was after 2008, it is likely that SLED will refuse to remove you from the registry.
But, if you pled guilty with the understanding that a pardon would later remove you from the registry pursuant to SC law, but now the 2008 amendments took that right away from you, how is that not an ex-post facto violation?
Ex post facto laws retroactively change the rules of evidence in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed. They are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution.
I’m not aware of any cases on point, but this is an issue that may be worth litigating for someone who was convicted prior to 2008 and received a pardon post-2008…
SC Pardon Lawyer – Sex Offender Registry
Getting yourself removed from the sex offender registry in SC is extremely difficult and, in many cases, impossible. SC’s registry laws can be unfair, however, and, in some cases, “creative lawyering” may help to find a solution.
If you believe that SC is forcing you to register when you should not have to register as a sex offender, we may be able to help – call Charleston sex crimes defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to discuss your case and find out if we can help.