Originally created 06/05/06

Appeals likely to stall executions



COLUMBIA - Lawmakers studying sex offender law chose the harshest penalty last week. On a 84-27 vote, the House approved a bill that would allow the death penalty for those twice convicted of raping a child younger than 11.

The Senate has already passed the bill, and if Gov. Mark Sanford signs it into law, South Carolina would be the fourth state to allow the death penalty for sex offenses.

"I don't know there's any punishment harsh enough," said Rep. Skipper Perry, R-Aiken.

After high-profile cases such as the kidnapping, rape and murder of 9-year-old Jessica Lunsford in Florida - whose accused assailant was caught in Augusta - the issue of sex offenders has captured growing attention.

Officials have taken a multifaceted approach: increasing jail terms, approving electronic monitoring, setting treatment plans and invoking the death penalty.

But passing a law is one thing; using it is another.

Even before South Carolina's lawmakers approved the death penalty measure, critics questioned its constitutionality - and potential cost.

"I'm not against that law at all," Lexington County prosecutor Donnie Myers said. "I am against the General Assembly enacting criminal laws for me to enforce and not giving me the resources to enforce it. That's like giving you a car and not giving you money for gas."

Death penalty cases easily can cost hundreds of thousands of dollars, he said. His longest death penalty case, he says, took 21 years to reach execution.

The question of constitutionality alone means South Carolina wouldn't see a sex-offense execution for years to come. For starters, there has to be a proper test case, Mr. Myers said - involving someone who is convicted not once, but twice, of a first-degree criminal sexual offense.

Then, assuming the solicitor seeks, and then obtains, the death penalty, there are appeals - to the state Supreme Court and most likely the U.S. Supreme Court. If the U.S. Supreme Court doesn't take up the case, the defendant can restart the appeals process by arguing that his defense attorney was incompetent.

If the U.S. Supreme Court affirms the death penalty, the defendant can have his case heard in the federal courts, Mr. Myers said - first locally, then in Virginia, then back to the U.S. Supreme Court.

All that assumes no court overturns the death penalty sentence, he said.

"Even with that, the defendant can come back and claim that there was some fundamental unfairness at his trial, and he can start all over again with the state court," he said. "So it feels like it never ends."

The bottom line? South Carolina shouldn't expect a resolution on the issue any time soon.

Other provisions in the bill include the potential for lifelong electronic monitoring for some and a minimum 25 years in prison for the worst offenders.

Still, sex offense law is complicated even without the death penalty. States walk a fine line between protecting sex offenders' rights and protecting the safety of everyone else.

The American Civil Liberties Union, for example, is challenging an Indianapolis ordinance that prohibits those convicted of sex crimes against children from being within 1,000 feet of playgrounds, recreation centers, swimming pools, sports fields or facilities when children are around.

Similar ordinances have been passed throughout the country, and one is about to take effect in Georgia.

In 2003, Hazel Free, of Bath, was living across the street from James Wesley McCoy when he was picked up and charged with criminal sexual conduct with a minor in Aiken, Laurens, Pickens and Oconee counties.

A former evangelist, Mr. McCoy has since pleaded guilty to committing lewd acts against children and is serving up to 20 years in prison.

On Friday, Ms. Free said she doesn't know exactly what she thinks about South Carolina's death penalty provision.

"I think they ought to be castrated or something," she said.

Reach Kirsten Singleton at (803) 414-6611 or kirsten.singleton@morris.com.