Hit & Run

Lifetime GPS Tracking Is Not Punishment, Says Wisconsin Supreme Court

The court relies on a debunked recidivism estimate to justify tagging and surveillance of sex offenders.


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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.

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    1. That's the finest tool prosecutors have to get you to plead guilty. Why would the state want to do that?

  1. If indefinite detention is not a punishment, kidnapping cannot be illegal.

    1. It's not, as long as it's performed by agents of the state.

  2. There is nothing in the US Constitution or states Constitutions that allow punishment outside of state custody. Nothing.

    If you want to keep a person in state custody, then sentence them to that. If you want to offer better deals to people for probation and GPS monitoring to people, then do that. Nobody would agree to prison and lifetime GPS monitoring that they have to pay for.

    Stop letting courts and Legislatures get away with saying that sexual registries and GPS monitoring are not punishment. See what happens when people cut the GPS trackers off. The state wants to lock them up.

  3. OT, Rumors Kennedy wants to retire on a GOP administration watch.

    Please let it be so and happen soon.

    We can then get Goresuch 2.0, Dem heads will explode and Christmas will arrive early this year.

    1. It will probably guarantee that RBG's heart will give out and finally take that dirt nap she has been practicing for these past years.

      1. After the disgusting and unconstitutional "ends justify the means" arguments advanced by the liberal SCJs in Janus v. AFSCME Council 31 she cant go and take that nap fast enough, and while she's at it she can take the other ones with her as well.

        I know, it's "Gorsuch".

        1. You can't be a serious person and think that the union opinion was anything but ends-justify-the-means activism.

          Can we finally put to rest the stupid lie that only things that please conservatives are blessed by the constitution, even if they pulled it from their ass?

          1. MAGA!

      2. If she dies with a pillow on her face, do you think the left will claim she was murdered?

    2. We can then get Goresuch 2.0

      Hard to predict with Trump. It could be Alito 2.0.

  4. The case at hand involves DeAnthony Muldrow. The Manitowoc man pleaded guilty in 2010 to second-degree sexual assault of a child and third-degree sexual assault. He was sentenced to a year in prison, a year on extended supervision and probation. He'll be subject to lifetime monitoring when his probation ends in 2022.

    If he's so frightening and dangerous, why only one year in prison and one year on probation?

    Tracking also ends if the offender decides to move out of state.

    I think we have motive. Just leave and become someone else's problem, we'll take the ankle bracelet back.

    1. That was my thought as well, since basically the state is saying 'get out and become someone else's problem'. That's the end-goal of this.

  5. >>unless they ... become permanently incapacitated

    voluntary castration?

    1. There are several stories of people who are physically bedridden or locked up in dementia, but who have had to change nursing homes because the city built a bus stop on the street or some such.

      1. indeed there are. i like to propose fringe solutions.

  6. There are some "experienced hikers" who get lost in the mountains here every fucking year that could use some lifetime GPS tracking.

    1. Experienced hikers do not get lost.
      Sometimes we get confused about where we are for a week or two, but never lost.

      1. They were just figuring it out right as the rescue team found them.

      2. "Sometimes we get confused about where we are for a week or two, but never lost." Or as Daniel Boone said, "I've never been lost, but I was bewildered for three days."

  7. I think the Supreme Court also said that waterboarding isn't punishment, so how can wearing an anklet be?

  8. "It includes a speaker than can be used to issue commands or reminders, which "can be heard by anyone within earshot of the offender,"

    Oh god that could be so much fun.

    1. Hack the system and play "F The Police" from every anklet in Wisconsin every so often?

  9. If this isn't a punishment, I'd love to know how the government has the power to force these people to wear anything.

  10. I know there are a lot of things going on in this situation, but at some level, I much prefer "surveillance" to jail, at least for nonviolent crimes... Jail is just another word for "kidnapping" and I just don't see how any society can consider itself "civilized" when it reacts to a nonviolent action with violence. Escalating a peaceful situation into violence is the definition of barbarism.

    Again, I realize this situation has several deviations from what I'm talking about, but I do think sometimes libertarians are too quick to dismiss these types of approaches. I don't trust anything in the hand of today's Statist governments, true, but in a libertarian society, I think there could be a big role for these kinds of alternatives to kidnapping.

    1. But this was a violent crime, apparently ? sexual assault of a minor ? so I'm not sure how that plays into your comment. I am sure it's the lifetime "surveillance" that triggers the libertarian response.

      Alternative approaches to crime and punishment? Libertarians are wide open.

    2. Justice is repayment. If found guilty, the "repayment" ought to be expressed by the jury as an "up to [blank]", and the victim of victim's Next of Kin ought to be the one who is "repaid".

      If the victim/NOK decide to accept less than full repayment, then that's up to them. No third party (government) ought to claim that the repayment is theirs or decide to lessen the repayment, nor complain if the victim/NOK demands less than what they think should be paid.

      Again, the government isn't the wronged party. The wronged party ought to decide the repayment "up to" full repayment. The victim ought to be repaid, not a third party.

      1. What if a victim is killed and there's no next of kin?

        1. I'm glad you brought that up, and if that's your main objection, then I'd say I've succeeded greatly!

          Do they have a close friend? Do they have any friends? A church? A bingo group?

          Your answer to that would be very similar (I'd guess) to good (effective/moral) ways of determining where inheritances go when there is no will. "The one closest to me"

          If there really isn't one, then who brought the guilty to trial? Maybe they're the "Next of kin"?

  11. I could see lifetime GPS tracking as an appropriate part of a sentence for a serious crime, but denying that it is "punishment" is misuse of the English language. Why does the public distrust and even hate lawyers and judges? I suggest that one reason is that they often use a phrase with a plain meaning and pretend it means something else...

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