Too often society has imposed a different standard on persons convicted of child sex offenses than it does other offenders. Even though studies show recidivism rates to be low, many people don’t object to more severe treatment of child sex offenders because of a belief that “they’re getting what they deserve.”
But when we trample on the constitutional rights of one group, we weaken the very concept of constitutional rights. These are rights that are supposed to belong to all of us, regardless of our behavior.
The Seventh Circuit Court of Appeals is currently considering just how far the state of Wisconsin can go in punishing child sex offenders. Can it, for example, impose lifetime GPS monitoring on people who have been convicted of child sex offenses? Can they do that without a judge’s order? Can they do it ex post facto, meaning after the person has already paid their debt to society?
One of the plaintiffs in the case against Wisconsin is a man who was convicted in 2000 of two counts of second degree sexual assault on a minor. He completed his prison sentence in 2018 and was not on parole or any form of court-ordered supervision after his release.
Seven months after his sentence was over, the Wisconsin Department of Corrections — not a judge — contacted him to say he now had to wear a GPS ankle bracelet for the rest of his life.
Another man was ordered by DOC to wear a GPS bracelet for life even though he was only convicted of two counts in the same complaint of possessing child pornography, but no contact offenses.
Government intrusions must be reasonable
As the plaintiffs argued, lifetime GPS monitoring is “unique in its intrusiveness.” It is “an extreme intrusion into bodily integrity.” Surely, such an intrusion should be a Fourth Amendment issue, meaning that a search or seizure has occurred and must be reasonable.
Wisconsin claims that, even if lifetime GPS monitoring constitutes a search or seizure, it is a reasonable one because “child sex offenders impose an intolerable risk.” The state argues that the purpose of the GPS monitoring is to prevent recidivism. However, the state was unable to provide the court with any evidence that GPS monitoring actually reduces recidivism. At oral argument the court seemed skeptical with the state’s argument without empirical data to back up that claim.
This case also raises the concern about a state adding conditions (lifetime GPS) to a person’s sentence after it is served? Can the Department of Corrections do it without a judge involved?
The case was argued in September. The Seventh Circuit has not said when it will issue its ruling.
A related issue has made its way up the Wisconsin court system and last week was certified by the court of appeals to the Wisconsin Supreme Court for review. The question is whether the “two or more separate occasions” language in the statute applies when all the convictions of record are on a single complaint. Or does the sex offender registration statute language that requires lifetime registration only apply if the two convictions occurred at different times in two separate proceedings so that the second conviction occurred sometime after the defendant was already convicted in a prior case?
That interpretation would seem to make sense, because the more severe lifetime registration requirement should be reserved for those who were convicted once, then still went off and convicted again despite punishment and treatment imposed on the first offense.
The Wisconsin Supreme Court does not need to take a case that the lower court of appeals certifies to them, but they often do to resolve important issues that the higher court should decide.
The case is State v. Corey Rector, 2020AP1213.