Proposed DPSCS Regulations not the "Silver Bullet" State Legislature hopes they will be.
Convinced that GPS monitoring is the answer to the sex offender problem, the Department of Public Safety and Correctional Services is proposing implementation of new regulations to the Maryland General Assembly to control sexual offenders by GPS and other measures.Currently, 23 states use GPS to monitor some sex offenders while they're on parole. The devices, outfitted on an ankle bracelet, are typically placed on offenders considered at high risk of striking again. However, the use of GPS monitoring -- embraced as a simple technological solution for tracking the whereabouts of convicted sex offenders -- is proving to be something less than a silver bullet for state and local public safety agencies.Advocates behind the DPSCS proposed regulations, moreover, make no distinction between habitual offenders at high risk of striking again, worth having their every move tracked electronically once they're out of prison, and the felons who have served their time and present no apparent threat to public safety in the eyes of the court. Just put a GPS device on all of them, DPSCS and certain state legislatures say, forever.A simple solution if one ignores that there are an estimated 600,000 registered sex offenders in the United States. Without a doubt, the proposed DPSCS regulations are symptomatic of a national tide of fear about sexual predators lurking in the bushes by the playground, at the mall, just on the other side of the elementary school fence, and skulking about on MySpace. The reality is the vast majority of registrants are not predatory, and don't pose danger to strangers, which is the only common sense reason GPS would be useful.
Understanding GPS Limitations
In an ideal environment GPS can be very accurate, but in difficult topography or in bad weather, tracking errors and signal loss can disrupt accuracy and consistency. Maryland's legislature needs to be better and more fully informed so there's not a rush to use GPS simply because they think it's like "LoJack." Indeed, GPS limitations must be understood, and it must be used correctly to be of any benefit. Satellite technology is not effective and the influence of adverse weather and other interferences with the system pose problems -- particularly with cell tower issues -- where there are certain points the GPS signal can bounce off cell phone towers and points it cannot. And this last can occur whenever an offender ventures out of the satellites' range by entering dense urban locations or indoor places like a large mall, building, stadium, or even outdoors in a canyon-like environment, like Baltimore. Simply put, you can walk into a building and you lose satellite reception. All of us have experienced this at one time or another with our own cell phones. This, of course, then results in a false alarm -- which can number in the thousands in some jurisdictions, straining manpower and casting doubt on the viability of GPS as a tracking tool for high-profile felons. Nor is this last point without merit. A 2007 legislative study in Arizona found more than 35,000 false alerts by 140 subjects wearing the GPS-monitoring devices. Conversely, in Washington state, the Washington Association of Sheriffs and Police Chiefs opposed legislation in 2006 to expand the use of GPS based on their experiences with faulty readings when offenders moved inside steel buildings, tunnels or outside when it was snowing. Then there's the question of how already-taxed law enforcement will be deployed to monitor all this data on hundreds of people who aren't even on parole. While the proposed DPSCS regulations require the offender to pay for the actual system -- it fails to address the costs incurred by law enforcement response. These false alarm costs would run in the tens of millions in as little as 10 years and pose an even greater deficit to the state budget.
Understanding the Crime
As a society we need to become less hysterical and more informed about sexual offenses and sexual abuse. When we demonize the offenders, we're pretty much feeding the crime. We further isolate and alienate the offenders, which can serve as a precipitating factor in some offenders' impulses to act out. We further compound this by grouping or lumping all sexual offenders together in the state registry without distinction of crime. We're so focused on the minority of offenders who seem to fit our skewed perceptions of what sexual abuse and sexual abusers should be, we fail to recognize that the crime actually occurs closer to home.
Crimes committed by sexual predators are a serious problem -- and this article doesn't mean to underplay this fact when case after case shows children are ther victims of most sex crimes. Two-thirds of the victims of sex crimes are under age 18, and 58 percent of those underage victims were under age 12, according to U.S. Department of Justice statistics. Yet the majority of those victims aren't preyed on by strangers but know their attacker. Indeed, most sexual crimes committed against children happen closer to home and involve somebody whom the victim knows and trusts, like a family member or a neighbor. In 90 percent of the cases, child victims knew their attacker. And almost half the time that person was a family member. The vast majority of offenders abuse kids whom they know and either have close relationships with the children or the children's families.But the incessant emphasis on the boogeyman, the sexual predator in the schoolyard or on the Internet, can be counterproductive, as resources to fight sexual crimes, and public perception of them, are misplaced. GPS devices only serve to fuel the hysteria that all registrants are predators. Would not the funds DPSCS wishes to spend monitoring felony sex offenders not be put to better use by law enforcement in proactive programs for offenders that aim to prevent recidivism as opposed to programs which are purely reactive once the crime has been committed?
Understanding the Deterrent Effect
The obvious question therefore is: Will wearing a GPS device make a sex offender less likely to strike again? The research is spotty, simply because no one has been wearing the devices for the decades that the new DPSCS regulations propose. However, according to U.S. Department of Justice statistics, and contrary to popular belief, sex offenders are significantly less likely than other criminals to be rearrested. Despite this, DPSCS has decided: Why should 24-hour electronic monitoring end with parole? Even after offenders have legally paid their debt to society, DPSCS still wants to track their every move, regardless of their risk for recidivism.
The most that can be said about GPS monitoring in this context, then, is it's viewed as a panacea by its advocates and will prevent future crime. It isn't and it won't simply because common sense dictates the most GPS monitoring can do is tell where an offender is or has been -- but not what they were doing or whom they were with. Thus, it will have little or no impact on preventing crimes and serve only to promote a false sense of security within the community.In sum, the proposed DPSCS regulations are yet another example of feel-good legislation to get communities to feel that actual action is being taken by the state to stem the problem. GPS monitoring and residency requirements are not going to do anything with the vast majority of offenders. The simple truth of the matter is: A person intent on committing any type of crime will do so regardless of the consequences.
Understanding the Constitutional Implications
As Maryland rushes to impose harsher penalties on sex criminals, critics -- legal and criminal analysts, and even some victims of sex crimes themselves -- state that the punitive new regulations and laws violate civil liberties and are ineffective. And while a technological fix like fastening GPS devices to former felons may make the public feel safer, it will do little to protect the children who are the victims of most sex crimes. Beyond a doubt, if the Maryland General Assembly should decide to impose the device on all felony sex offenders -- whose crimes were committed before the proposition passed -- it would run into serious constitutional problems.
As a threshold point, the ex post facto clause in both the U.S. and state constitutions means that the government cannot impose a greater punishment for a crime than was allowed when that crime was committed. Thus said, the state cannot pass a law which increases the punishment for past acts. And this last holds particularly true when applied to Tier III offenders -- where it is tantamount to giving them a life sentence. Secondly, offenders may also be able to argue that being constantly monitored on GPS also violates their Fourth Amendment right, not to be subject to unreasonable search and seizure. Slapping a GPS bracelet on someone who is not on probation or parole could be considered seizure. The government simply has no authority to take somebody off the street, who has already paid his debt to society, served his time, and force him to wear a tracking bracelet. Aside from the 4th Amendment implications of this regulation, its passage by the General Assembly would raise a number of questions about the applicability of existing laws and judicial precedent to uses of new technology, particularly those that involve geo-location information. A state law that prolonged monitoring of user movements could constitute a search and, if performed by a government entity, therefore fall under the provisions of the 4th Amendment, especially where being forced to wear the device while in the privacy of one's home could also be considered a search - and in numerous cases violating both the offender and spouse's privacy.Likewise, the proposed DPSCS regulation requiring 21 days advance written notice, with documentation, any time an offender leaves the state and to show up in person 3 business days before departure to confirm travel plans runs afoul of the Constitution's Commerce Clause by interfering with offenders engaged in interstate commerce activities. And, it need not be pointed out, such violations would serve to further implicate First Amendment as well. In sum, the proposed draconian DPSCS regulations will raise some very important issues about what the state may do to an essentially free person.
By Michael & Sandra Kennedy