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Feb. 1 — Requiring sex offenders to wear satellite-based tracking devices as a condition of their release from civil commitment doesn't violate the Fourth Amendment and may be imposed on offenders whose crimes occurred years before the monitoring law was enacted, the U.S. Court of Appeals for the Seventh Circuit ruled Jan. 29.
The decision is the latest word on an issue that has divided state and federal courts and attracted the attention of privacy advocates.
Although the U.S. Supreme Court made clear in 2015 in Grady v. North Carolina, 2015 BL 88171 (U.S. 2015) , that attaching a GPS device to a sex offender qualifies as a “search” for purposes of a Fourth Amendment analysis, it left open the question of what circumstances would meet the reasonableness test and also left unaddressed the question of whether the GPS requirements may be retroactively imposed.
The case was closely watched by privacy advocates who argue that electronic monitoring anklets are problematic for a number of reasons.
According to James Kilgore, of the Urbana-Champaign Independent Media Center, these monitors not only create a “virtual prison” but “can potentially be used to restrict people’s movement to certain geographical areas, becoming part of a process of race- and class-based technological gentrification.”
Kilgore, who spent a year on an ankle bracelet after being released from prison, published his findings in 2015 in Electronic Monitoring is Not the Answer: Critical Reflections on a Flawed Alternative.
The monitoring systems are also flawed, he says, because people are getting sent back to prison for reasons unrelated to their original crime. Their freedom, he said, often “hangs on a thin thread and can be revoked due to an event completely beyond their control, like a fire or a delayed bus.”
The Electronic Frontier Foundation filed an amicus brief in the Belleau case arguing that, “When law enforcement officials use GPS devices and other emerging location surveillance technologies to systematically track where we are, they also learn an extraordinary amount of highly sensitive information about who we are.”
On its website, the EFF further argues that embracing GPS tracking puts the country on a slippery slope: “All too often, new police surveillance tools are initially applied to only the ‘worst of the worst' and then slowly—but surely—expanded to include an ever-growing number of less culpable individuals. We’ve seen it with DNA collection. And now we’re starting to see it with GPS tracking.”
The Seventh Circuit, however, didn't find these privacy concerns very persuasive, ruling that the GPS requirement for convicted sex offenders is reasonable because the intrusion is so minimal and the public threat is so acute.
At oral argument, the judges were openly skeptical of the argument that Belleau's rights were severely impinged just because “there's a map somewhere in some government office that shows where you are.” And that skepticism came through loud and clear in Judge Richard A. Posner's opinion.
“Having to wear the monitor is a bother, an inconvenience, an annoyance, but no more is punishment than being stopped by a police officer on the highway and asked to show your driver's license is punishment, or being placed on a sex offender registry,” the court said.
Weighed against that limited burden, it added, is the state's strong interest in making sure that convicted offenders—who are notoriously susceptible to re-offending—don't spend their days lurking around schoolyards or otherwise showing an abnormal interest in children.
The court scoffed at the EFF's amicus brief for suggesting that the ankle bracelet requirement allows the Wisconsin Department of Corrections to discern “whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband” or affiliated with a particular political party.
Nothing of that kind is involved here, the court said.
On the contrary, it added, “persons who have demonstrated a compulsion to commit very serious crimes and have been civilly determined to have a more likely than not chance of reoffending must expect to have a diminished right of privacy as a result of the risk of their recidivating.”
The court also pointed to studies out of California showing that GPS parolees in that state were half as likely as traditional parolees to be arrested for or convicted of a new sex offense.
Belleau's privacy has already been curtailed, the court continued, because Wisconsin makes convicted sex offenders' criminal records and addresses available to the public. So the extra indignity of wearing an ankle bracelet isn't that significant, it said.
“The additional loss from the fact that occasionally his trouser leg hitches up and reveals an anklet monitor that may cause someone who spots it to guess that this is a person who has committed a sex crime must be slight,” it said.
Belleau's argument that he had “aged out” of committing pedophilic acts because he was now 72 years old didn't get very far with the court.
Although there is evidence that the arrest rate of pedophiles declines with age, the court said there are no reliable statistics on sexual activity, which is distinct from arrest statistics.
In any event, there is no reason to think that the acts decline to zero, the court added, because “men continue to be sexually active into their 70s, and many remain so in their 80s and even 90s.”
“And even if not physically capable of the common forms of male sexual activity, older men can still molest and grope young children,” Posner wrote.
Addressing Belleau's ex post facto argument, the court conceded that forcing Belleau to wear an ankle bracelet for conduct that occurred 19 years before Wisconsin's GPS monitoring statute, Wis. Stat. § 301.48, went into effect qualifies as retroactive application of the law.
However, the court added, retroactive application doesn't violate the ex post facto clause in this case because the law doesn't impose a “punishment.”
Looking at the history and language of the monitoring statute, the court concluded that the legislature's objective was to protect children, not punish sex offenders. It further noted that the ankle-bracelet requirement imposes no “meaningful restrictions” on Belleau.
It rebuffed Belleau's argument that the monitoring requirement is the 21st century equivalent of public shaming and branding. Shaming is designed to be noticeable, it observed, whereas the GPS device is designed to be inconspicuous.
The device is only noticeable when Belleau sits down and his trousers hike up or when he walks through a metal detector, it said.
Not all courts agree on this issue, however.
On the other hand, courts in New Jersey, South Carolina and Massachusetts have gone the other way, ruling that a state law forcing released sex offenders to wear satellite-based tracking devices as a condition of release can't be applied to offenders who committed their crimes well before the law was enacted.
According to these courts, the monitoring law's adverse effects are so punitive that they negate whatever civil intent was envisioned by state legislature.
Belleau spent 15 years in prison for child sex assaults he committed in 1988 and 1989. He was civilly committed to a treatment center in 2004 and released in 2010.
The state law requiring that persons released from civil commitment for sexual offenses wear a GPS monitoring device 24 hours a day for the rest of their lives was passed in 2006.
Judge William J. Bauer joined Posner's opinion.
Judge Joel M. Flaum concurred, but wrote separately to argue that Wisconsin's GPS monitoring program is a “reasonable special needs search.”
Laurence Jacques Dupuis, of the Wisconsin American Civil Liberties Union, Milwaukee, argued on behalf of Belleau. Anthony D. Russomanno, of the Wisconsin Attorney General's Office, Madison, Wis., argued on behalf of the state department of corrections.
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