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Seventh Circuit: Wisconsin’s lifetime sex offender monitoring statute is constitutional

Michael J. Belleau v. Edward F. Wall, 7th Circuit Court of Appeals No. 15-3225, 1/29/16

The Seventh Circuit holds that Wis. Stat. § 301.48, which requires certain sex offenders to wear a GPS monitoring device, does not violate either the Fourth Amendment or the constitutional prohibition against ex post facto laws. This decision reverses a Wisconsin federal district judge’s decision striking down the statute.

Fourth Amendment. The court rejects Belleau’s claim that, because he is no longer under any sort of state supervision or control, there’s no lawful basis for the search that results when he wears the GPS bracelet. The court says this misses two points.

The first point is the reoffense risk Belleau poses. Citing his pedophilia diagnosis who still has some risk of reoffending (from 8 to 16 percent, according to the Static-99R numbers that got him out from under his ch. 980 commitment) and the “serious underreporting of sex crimes,” and engaging in rhetoric more becoming a politician than a court (“[r]eaders of this opinion who are parents of young children should ask themselves whether they should worry that there are people in their community who have ‘only’ a 16 percent or an 8 percent probability of molesting young children—bearing in mind the lifelong psychological scars that such molestation frequently inflicts”), the majority writes that Belleau “can’t be thought just a harmless old guy.” (Slip op. at 5-8).

The second point is that the ankle bracelet has only a slight incremental impact on Belleau’s already-reduced privacy interests, for his child sexual assault convictions require him to register as a sex offender and the registry provides signficant information about him to the public. (Slip op. at 9-13).

Given how slight is the incremental loss of privacy from having to wear the anklet monitor, and how valuable to society (including sex offenders who have gone straight) the information collected by the monitor is, we can’t agree with the district judge that the Wisconsin law violates the Fourth Amendment. The plaintiff argues that monitoring a person’s movements requires a search warrant. That’s absurd. The test is reasonableness, not satisfying a magistrate. ….

….

It would be particularly odd to think that all searches require a warrant just because most of them invade privacy to a greater or lesser extent. The terms of supervised release, probation, and parole often authorize searches by probation officers without the officers’ having to obtain warrants, and the Supreme Court has held that such warrantless searches do not violate the Fourth Amendment as long as they are reasonable. Samson v. California, [547 U.S. 843 (2006)]; United States v. Knights, 534 U.S. 112, 118–120 (2001). The “search” conducted in this case via the anklet monitor is less intrusive than a conventional search. Such monitoring of sex offenders is permissible if it satisfies the reasonableness test applied in parolee and special‐needs cases. Grady v. North Carolina, … 135 S. Ct. [1368,] 1371 [(2015) (per curiam)]. Wisconsin’s ankle monitoring of Belleau is reasonable.

(Slip op. at 13-14).

Ex post facto. The court holds that wearing the GPS bracelet is “a bother, an inconvenience, an annoyance,” but it isn’t punishment, and therefore can’t be an ex post facto law:

…. In Kansas v. Hendricks, 521 U.S. 346, 368–69 (1997), the Supreme Court held that civil commitment of sex offenders who have completed their prison sentences but are believed to have a psychiatric compulsion to repeat such offenses is not punishment as under‐ stood in the Constitution; it is prevention. The aim of the an‐ klet monitor statute is the same, and the difference between having to wear the monitor and being civilly committed is that the former measure is less likely to be perceived as punishment than is being imprisoned in an asylum for the criminally insane. So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor. It is not “excessive with respect to [the nonpunitive] purpose,” Smith v. Doe, … 538 U.S. [84,] 97 [(2003)], for Wisconsin to conclude that all formerly committed sex offenders pose too great a risk to the public to be released without monitoring.

(Slip op. at 14-15).

A concurring judge writes separately, using a bit more conventional mode of legal analysis than the majority opinion (penned by Judge Posner) but agreeing in all essential aspects with the majority’s conclusions. (Slip op. at 17-29).

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