The seventh circuit examines lifelong GPS monitoring of intercourse offenders

CHICAGO (CN) – The Seventh Circuit on Friday weighed the urgency of a Wisconsin law introducing lifetime GPS surveillance of certain convicted sex offenders against the need to prevent further crime from that particular class of criminals.

The underlying lawsuit was first filed by eight registered sex offenders as a federal class action in March 2019. They argued that a 2017 legal interpretation by former Wisconsin Attorney General Brad Schimel expanded the class of sex offenders who were subject to lifelong GPS surveillance after the trial was over, their sentences to constitute an inappropriate search for the purposes of the Fourth Amendment and call tracking “an intrusive search that provides the government with detailed, real-time data on every move a person makes”.

Individuals convicted of sex offenses twice or more have already been subjected to GPS surveillance under Wisconsin law. However, Schimel’s 2017 interpretation and subsequent application of his guidelines the following year applied GPS monitoring to individuals convicted of more than one count.

The complaint was originally named as a defendant of former Wisconsin Department of Corrections Secretary Cathy Jess, who has since been replaced by Secretary Kevin Carr.

In December 2019, U.S. District Judge Pamela Pepper of the Eastern District of Wisconsin, a person appointed by Barack Obama, denied plaintiffs’ motion for an injunction blocking GPS tracking and dismissed her lawsuit.

Three of the class-action sex offenders immediately contacted the Seventh Circuit, stating in their brief that “There is a temptation to expand the power of the state to restrict the freedom of those convicted of serious crimes in the past it is understandable that constitutional requirements must be complied with, “especially since GPS monitoring was imposed on them without expecting it to do so after completing their sentences and criminal surveillance.

For example, one of the plaintiffs, Benjamin Braam, was convicted of two sexual assaults on a second degree minor in 2000 and sentenced to prison in March 2018. Braam was not subject to GPS monitoring and was not under criminal supervision at the time and was released from prison. However, seven months later, Braam received a letter from the Wisconsin Department of Corrections saying he would have to wear a GPS ankle monitor for the rest of his life.

During the roughly 30-minute argument on Friday, plaintiff’s attorney, Adele Nicholas, described lifelong GPS monitoring as “unique in its urgency” as Wisconsin can track certain people through “non-removable monitoring devices” 24 hours a day until death . ”

This type of persecution, categorically imposed solely on the basis of past crimes, is “an extreme invasion of one’s physical integrity,” said Nicholas.

US Circuit Judge David Hamilton appeared skeptical of the proposal for longer sentences in lieu of GPS surveillance and wondered if plaintiffs should want their claim to be based solely on the accuracy of Schimel’s interpretation.

Hamilton, a Bill Clinton-appointed associate, asked Nicholas flatly, “Would your customers really prefer this?”

Nicholas said Schimel’s interpretation was not the only problem in the case, returning to her point that her clients “had no expectation that they would be monitored after their sentences were completed” once their monitoring time expired due to a decision made by law enforcement, not the judiciary.

Wisconsin Assistant Attorney General Jody Schmelzer argued on behalf of the state that “repeated sex offenders pose an intolerable risk to the most vulnerable members of society,” and noted that the relevant Wisconsin law outlived constitutional scrutiny.

Hamilton pressed Schmelzer whether there is any recent empirical data to support the belief that GPS monitoring reduces recidivism rates for certain sex offenders, and said that high levels of recidivism are “very convenient to use” with GPS monitoring To justify, however, wondered if it was possible to still survive the Constitutional Analysis if these relapse rates were disproved.

When Schmelzer admitted she didn’t have this data, Hamilton asked, “Wouldn’t that be helpful to know?”

“If this monitoring has any purpose, one would probably expect some empirical results,” said Hamilton.

Schmelzer suggested that even if some studies show lower relapse rates, it doesn’t really show the bigger picture, in part due to the fact that “sex offenses against children with” significant lifelong psychological scars “are” seriously underreported “.

The panel also questioned the effectiveness of GPS surveillance in preventing various types of sexual offenses, as one of the plaintiffs, David Olszewski, was convicted of two cases of possession of child pornography rather than sexual assault.

Schmelzer explained that GPS tracking could help link child pornography with contact crimes and determine where a perpetrator is when downloading child pornography to a computer.

But Schmelzer has mostly just offered that “we do not want to diminish the efforts of the state to protect children from these crimes” and that society has already found that sex offenders have fewer expectations of privacy.

After the rebuttal, Nicholas quickly summed up: “There is no doubt that … the rights of the Fourth Amendment are at stake and are greatly influenced by this GPS tracking.”

The Seventh Circuit Panel did not announce on Friday when it will make its decision on the case. US judge Diane Sykes, a George W. Bush-appointed judge, and US judge Amy St. Eve, a judge appointed by Donald Trump, rounded off the three-judge panel.

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