Posted on 02/09/2007 5:47:00 PM PST by Diana in Wisconsin
A new state law forcing sexual predators to wear tracking devices for the rest of their lives is unconstitutional, according to three University of Wisconsin-Madison law professors.
The measure violates privacy rights and amounts to punishment and warrantless surveillance when applied to offenders who aren't on parole or government supervision, the professors said in a letter sent to Corrections Secretary Matthew Frank on Feb. 3.
"A clearer example of governmental intrusion into personal privacy is difficult to imagine," wrote law professors Walter Dickey, Byron Lichstein and Meredith Ross.
The law's main author, state Rep. Scott Suder, R-Abbotsford, called the professors "Monday morning quarterbacks" with weak arguments.
"They might want to talk to the victims of these crimes before they make such outrageous statements," Suder said. "Nothing is going to stop us form implementing GPS. We are on very solid constitutional grounds."
The law, which takes effect July 1, requires the Corrections Department to use global positioning technology to track offenders found to be sexually violent. Tracking would begin when they're released from prison and continue for the rest of their lives. The requirement would also extend to serious child molesters.
The law calls on Corrections to establish zones where offenders could not linger and ensure the bracelets immediately alert the agency or local police if they violate those zones.
Corrections officials asked for $23.7 million and nearly 235 additional positions in the two-year budget starting July 1 to run the tracking system.
The professors argue forcing offenders on supervised release to wear trackers is unnecessary because they're already being supervised and forcing offenders who have completed their government supervision is unconstitutional. Corrections has no authority over them, they said.
The measure doesn't authorize police to stop offenders from moving into off-limits zones, the professors point out. That means the measure doesn't protect the public, negating a possible legal defense.
Constantly wearing a GPS unit that must be recharged every 12 hours amounts to punishment and warrantless surveillance, the professors wrote.
"Constant, lifetime GPS tracking is physically and psychologically burdensome," they said.
Anne Sappenfield, an attorney with the state Legislative Council, said in a Jan. 3 letter to state Rep. Mark Pocan -- the only member of the state Assembly to vote against the law -- the measure could be unconstitutional because it applies to sex offenders who were convicted before the law was enacted.
Suder insisted the law is designed to protect the public, not punish offenders. He said the law allows Corrections to write rules on how to handle zone incursions.
Pocan, D-Madison, a member of the Legislature's Joint Finance Committee, called the law a "knee-jerk" reaction.
"The bill was written in such a way to say 'hey, we're tough on sex offenders' instead of actually being tough on sex offenders," Pocan said.
Questions should be raised about the law now, before the Legislature releases millions of dollars in the upcoming state budget for the tracking system, Pocan said. That money could be better spent on helping Corrections develop ways to determine if individual offenders might re-offend, he said.
Frank's executive assistant, Susan Crawford, said Corrections has run into a myriad of problems as it prepares to implement the bill.
The law provides no penalty for offenders who refuse to wear the trackers, Crawford said. Corrections has no authority to return a sex offender on GPS who has completed his sentence to prison, and nothing in the law allows police to stop them for a violation, she said.
"It points to a need for the Legislature to ... fix some of these defects," she said.
Imagine what the founding fathers would think if they saw how far the country had strayed from what it was intended to be in 1776.
Tracking people because they go to church or vote a certain way is not nearly as far from what we consider to be American as what America has become since it was founded.
We have come a long way baby.
John
It's not my opinion. It's the law. Is it your opinion the people will allow what you suggest?
"If not, at what point does the piling on of additional after-the-fact restrictions become a problem for you?"
I only have problems with stuck on stupid. They're talking about rapists and child molesters here. Think ya can stay on topic?
I thought that ex post facto meant that even felons cannot have additional terms added to their sentence after the fact. Hence the phrase. Certainly, the constitution does not differentiate between felons and non.
>> "Is it your opinion that the government has the "right"
>> to go round up every convicted felon and throw them back
>> in prison indefinitely? Execute them all?"
>
> It's not my opinion. It's the law.
While I am not a lawyer, I am reasonably well read. I cannot think of a single instance in the entire history of the Republic when additional, non-customary sanctions were put in place after the fact for felons.
Further, I find this definition of ex post facto which seems to bring into question your assertion:
"The state is expressly prohibited from enacting an ex post facto law by article I, section 10 of the United States Constitution and article 1, section 11 of the Minnesota Constitution. An ex post facto law is one that (1) applies to events occurring before its enactment, and (2) disadvantages the person affected by it. The purpose of this limitation is to ensure that individuals have fair warning of legislative acts that could operate to their disadvantage.
An ex post facto law is one that has the purpose or effect of creating a new crime, increasing the punishment for an existing crime, depriving a defendant of a defense available at the time the act was committed, or otherwise rendering an act punishable in a different, more disadvantageous manner than was true under the law at the time it was committed.
A law is not ex post facto if it merely changes trial procedures or rules of evidence and operates in only a limited and unsubstantial manner to the accused’s disadvantage. In addition, a law is not ex post facto if it is a civil, regulatory law and is not sufficiently punitive in purpose or effect to negate the civil label."
http://www.house.leg.state.mn.us/hrd/issinfo/clssexpost.htm
Do you have any case law or reference to back up your position?
>> "If not, at what point does the piling on of additional
>> after-the-fact restrictions become a problem for you?"
>
> ...They're talking about rapists and child molesters
> here. Think ya can stay on topic?
If the government has a power, it has it in all cases whatsoever. That's why real conservatives tend to look askance at increasing the government's power.
>> according to three University of Wisconsin-Madison law professors.
Is their opinion base on first hand subjective analysis?
I have a feeling that the actual authors of the constitution would have NEVER Track Sex offenders....
they would have hanged them.....
The founders and the States adopted common law, that's where the idea of attainder came from. It means the legislature can infringe on their rights, as they see fit to. The Constitution mentions that no bills of attainder shall issue from Congress. That means they can't essentially convict somene of a crime(new, or old) w/o trial. Ex-post facto would enter in there.
Attainder is why felons can't have guns. Ex-post facto also doesn't apply to civil law. That's so the dirt bags can raise taxes expost facto. LOL! As Nixon did.
A new state law forcing sexual predators to wear tracking devices for the rest of their lives is unconstitutional, according to three University of Wisconsin-Madison law professors.
Life in prison for sex offenders. If they have to be monitored when they're released, then they shouldn't be released in the first place.
Anyone who isn't fit to ever be released from prison should be executed. Other than that you make a lot of sense.
The '68 GCA prohibited felons from owning guns. It's based on the same loss of right, that took away their vote. It was an act of a legislature. Now htat you've looked up expost facto, go for "attainder".
"If the government has a power, it has it in all cases whatsoever. "
See #47. It only applies to legislation limiting the rights of felons. It has noting to do, with imposing additional punishments, or passing laws with would legislatively add to their crimes.
OK. So long as the additional restriction is a "civil" restriction, and not a criminal penalty, you got me.
It raises the question: at what point is a "civil" penalty so onerous that it can't be justified?
Under the scheme you outline, it would appear to be allowable for the state to enforce even, say, speech restrictions on convicted felons, forcing them to subject all their public utterances to prior restraint.
Is that correct?
Yes, there is disgust among ourselves!
If the requirement to wear the tracking device is a part of their sentence, then it's not unconstitutional. Unless maybe some idiot judge ruled it was "cruel and unusual". If it's imposed on them after the fact, so to speak, then it likely is unconstitutional. That is, if people convicted before the law passed are required to wear the tracker. Sort of like the Domestic violence misdemeanor disqualification for keeping and bearing arms.
That would also be unconstitutional, if applied after individual sentencing. For those offenders who have not yet been released, the only thing that could be done is to have them serve their full sentence. Of course you could also change the law to allow execution for any second offense for that group, or any other second offenders.
WHOA - everybody! You are painting with a spray gun, instead of a precise brush. Do you understand how many men are convicted of a "sex offense" against a child who have done absolutely nothing? THOUSANDS. Think about it - nasty divorce, wife says child molested by Dad - who gets hosed? Dad too strict - so Missy says dad "touched her there" (she learned THAT trick in school) - who gets hosed again? And you all want him in anklets - A POX ON YOU ALL.
It's not a "civil" restriction. It's an act of the legislature which effects only felons, because of the attainder. It is a criminal law. It's a crime for them to break the law.
"Under the scheme you outline, it would appear to be allowable for the state to enforce even, say, speech restrictions on convicted felons, forcing them to subject all their public utterances to prior restraint."
They can't vote in most places. If the legislature can show a valid reason for the restriction, then they can pass a law limiting there speech.
That law extended attainder to non-felonies. That's the bad part.
You must have missed this part:
The law calls on Corrections to establish zones where offenders could not linger
Hang them all at high noon on the court house square, every single one of them, on the very first offense.
-ccm
How does that work? Does each get charged with abusing the other?
(Never mind, that's a rhetorical question. We all know who gets charged in this nation of Oprah watchers.)
-ccm
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