Last week the Wisconsin Supreme Court unanimously ruled that defendants need not be informed that pleading guilty to certain sex crimes will subject them to lifetime GPS monitoring because that requirement is not a punishment. In reaching that conclusion, the court relied on a widely cited but fictitious recidivism estimate as well as the familiar but dubious assumption that a state's asserted interest in promoting public safety justifies the burdens and restrictions it imposes on sex offenders long after they have completed their sentences.
Under Wisconsin law, people convicted of serious sex offenses involving minors are required to wear GPS transmitters on their ankles for the rest of their lives unless they leave the state, become permanently incapacitated, or successfully petition a court for relief after 20 years. The Department of Corrections reviews tracking data every night and receives alerts whenever an offender leaves an "inclusion area," enters an "exclusion area," or tampers with his GPS device. Malfunctions and signal loss that cause erroneous alerts can lead to arrest, jail, and loss of employment.
The court notes that the tracker, which "can cause blistering, especially when wet," creates a noticeable bulge and is visible whenever the offender wears shorts or sits down. It includes a speaker than can be used to issue commands or reminders, which "can be heard by anyone within earshot of the offender," who has to sit near an electrical outlet one hour a day to recharge it.
In addition to facilitating constant surveillance, then, GPS tracking conspicuously marks anyone who wears it as someone to be shunned, feared, despised, and perhaps worse. That mark of shame compounds the stigma associated with registration as a sex offender, which also entails restrictions on where people can live, work, or "loiter." But according to the Wisconsin Supreme Court, the public shaming is incidental to the main purpose of GPS tracking, which is regulatory rather than punitive. "In light of the 'frightening and high' rate of recidivism for sex offenders," the court says, "the relatively minimal intrusion of lifetime GPS tracking…is not excessive in relation to protecting the public."
That "frightening and high" quote comes from a 2002 opinion by Supreme Court Justice Anthony Kennedy, who asserted that "the rate of recidivism of untreated offenders has been estimated to be as high as 80%." Kennedy seems to have gotten that number from Solicitor General Ted Olson, who cited a DOJ manual that in turn relied on an unreferenced 1986 estimate in Psychology Today. That estimate has been debunked repeatedly and repudiated by its original source. It nevertheless lives on in the decisions of courts across America, justifying all manner of restrictions on sex offenders.
The continued reliance on fanciful recidivism numbers can be crucial in cases like this, where the difference between a regulation and a punishment depends partly on whether the burdens imposed by a law are disproportionate to its impact on public safety. If the annual risk that a sex offender will commit a new crime is not "frightening and high" but, as the evidence indicates, low and shrinking over time, forcing a 70-year-old who served time for a sex offense half a century ago to continue wearing a GPS transmitter makes even less sense than it does on its face.
Another important factor in the Wisconsin Supreme Court's decision was the supposed constitutionality of continuing to imprison sex offenders after they have completed their sentences, which SCOTUS has said is fine as long as you remember to call the place where they are confined a "treatment center" rather than a prison. "Lifetime GPS tracking," the Wisconsin Supreme Court says, "provides a middle ground between releasing dangerous sex offenders into the public wholly unsupervised and civil commitment."
In other words, if you are required to wear a conspicuous ankle monitor that is used to keep you in your "inclusion areas" and out of your "exclusion areas" for the rest of your life, you should shut up and be grateful that you get to walk about in public at all. When indefinite imprisonment does not count as a punishment, any burden that falls short of that is a mere inconvenience that can easily be justified by "frightening and high" recidivism rates, even when those rates are pulled out of thin air.