Wednesday, February 23, 2011

GPS monitoring for sex offenders

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

15 comments:

Dee said...

Just to let you know...on the MD registry about 91% are labeled Tier III. Can you imagine the cost of monitoring that system? Money better used elsewhere.

Angie said...

Hi Dee,

My name is Angie and my fiance is a registered sex offender who was sentenced on 7/21/08. He was released in January of this year and is required to wear the monitoring device although it was not mandated in his order. It consists of a ankle monitor and a large box that he must either wear around his waist strapped on like a fanny pack or he may carry the device but it must be within 2 to 3 feet of the ankle monitor or the box will beep and he has to reposition it. The first night he had it, the box beeped every 90 seconds and we later found out it was due to the "charging device" not being connected through a telephone line, which his probation officer negleted to mention was needed and apparently it was not providing any reading at all. The next day he contacted the probation office to find out how to make it stop beeping and he was told him to make sure it was plugged into a phone line or it had no signal, huh??? Why on earth did they not investigate this if he is to be monitored and he had no signal. The box is required to charge for no less then 10 hours a day. In total there are 3 seperate pieces, and it is extemely bulky and heavy and loud. He must pay $7.92 per DAY for the device. Two weeks ago we went to a different county on a Friday and the following Tuesday his probation officer contacted him and requested he gain permission before leaving the county again but thought he had left the county the day before. I don't know if they just don't know how to use the system or are just lazy about it but it seems rather pointless as they do not pay any attention to it.

Dee said...

Thanks Angie for your story and the info. May I ask what state you live in? Sounds like this is like having to wear a huge scarlet letter for all to see. God Bless and I wish you and your fiance the best of luck.

Angie said...

Thank you Dee. We live in Florida. I am relatively new to this process but am in agreement that offenders need to be viewed on a case by case scenario-not lumped in as a collective all subjected to the same humiliating and often times dangerous restrictions. Shortly after his release, the local sheriffs department had plain closed civilians distribute fliers around our neighborhood with his living address, photo and information. He actually lives 2 houses away as we have children and he may not reside in a household with anyone under the age of 18 without the courts approval. The evening after the fliers were passed out my neighbor, with whom he resides, truck was egged-she has lived in this neighborhhod for more then 15 years and I cannot fathom who did this as everyone knows her vehicle. We are currently awaiting order on a motion to allow him to reside with me. I was advised by the county probation where he served his prison term, that my residence would be approved as it was within the restrictions for a sex offender residence as manidated by the county we live in, if we had asked the sentencing judge to place that verbage in the order at the time of sentencing. My response to that: we are not career criminals and did not know to ask for something like that. This was his first and only offense at 34 years of age. I am grateful to find someone else who has had experience with this and god bless you and your husband as well!

Anonymous said...

"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."

Can you please provide what bill or session of congress this was brought up? I'm trying to do legal research for someone to help them fight these laws, but I only find rumors of this '21 day notification' and no House or Senate Bill to study.

Dee said...

@ Anonymous: The 21 day notice was not included in the bill but was added by the Dept. of Public Safety.

Anonymous said...

@ Dee:
"The 21 day notice was not included in the bill but was added by the Dept. of Public Safety."

Thanks for your rapid response. So this is a new policy that the Dept of Pub Saftey just decided to implement on their own without a legistlative order? Or is this something they want to become law, but has not yet. With the Congress Session ending soon, all the bills will be final in short time.

Hopefully this will not become law. Sometimes I wish the Law makers would read the ACTUAL FBI crime stats for recidivism and stop quoting rates of 85%. I'm left to wonder if they are simply incompetent and fail to check the facts for themselves, or if they are using fear mongering as a tool to maintain power.

lily said...

I am so glad I found your blog, I am at the end of my rope it seems. I would have never in a million years thought my life would be this way...thanks, I don't feel so alone now :)

telly snipes said...

I'm tired of fighting for what I should already have .... My rights!!! Ten yrs is enough !!! What I don't understand is how can I be around children ...but be labeled a tier 111 jus need to vent ...and @ 31 my soul is exhuasted....I'm labeled a cso but am allowed around children....please help me

Mighty Egale Soars said...

I live in ga but i agree with what you say.this man found me on the street,homeless took me in and has help me like a father but due to my disability's and him having a record that start before i was born,the law has try things and my father in-law.he wears a leg monitor.he's been out 4years now and the put it on him in DEC.2010.he spent 20years in the chain gang.he hasn't done anything since he's been out.i feel it's unconstitutional cause he did his time and he went through the class in prison.how can one do there time and still even once they complete it,they still have to pay.he's free yet he's not.i do not believe in the gps.i think it violates are rights as human beings.so everyone in maryland please don't agree to this program and do as dee says.

Shimmerrings said...

May 9, 2012
South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds
The South Carolina Supreme Court has a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender. The ruling in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here), is a bit hard to figure out: the first opinion seems to announce the opinion for the court, but then a footnote at the state of Justice Hearn's opinion states that "[b]ecause a majority of the Court has joined the separate concurring opinion of Justice Kittredge, his concurrence is now the controlling opinion in this case." I will quote the first paragraph from both opinions in the case, because they both are noteworthy, starting here with the opinion of Justice Hearn:
Jennifer Rayanne Dykes appeals the circuit court's order that she be subject to satellite monitoring for the rest of her natural life pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010). She lodges five constitutional challenges to this statute: it violates her substantive due process rights, her right to procedural due process, the Ex Post Facto clause, the Equal Protection Clause, and her right to be free from unreasonable searches and seizures. We hold the mandatory imposition of lifetime satellite monitoring violates Dykes' substantive due process rights and reverse and remand for further proceedings.
The very lengthy opinion by Justice Hearn, which apparently garnered only two (of the five) votes on the court, is thereafter followed by a shorter opinion by Justice Kittredge which starts this way:
I concur in result. I commend my learned colleague for her scholarly research, and I agree with the majority's general proposition that persons have a fundamental right "to be let alone." But I respectfully disagree that Appellant, as a convicted child sex offender, possesses a right that is fundamental in the constitutional sense. I do not view Appellant's purported right as fundamental. I would find Appellant possesses a liberty interest entitled to constitutional protection, for all persons most assuredly have a liberty interest to be free from unreasonable governmental interference. I would find that the challenged mandatory lifetime, non-reviewable satellite monitoring provision in section 23-3-540(C) is arbitrary and fails the minimal rational relationship test.
Long story short, it appears that all members of the South Carolina Supreme Court have concluded that the mandatory lifetime satellite monitoring now required by stature in South Carolina for sex offender Jennifer Rayanne Dykes is unconstitutional. (I mention the full name of the defendant in this case because I cannot help but wonder, yet again, if the defendant's gender may have played at least an unconscious role in this notable outcome. I do not think it is implausible to at least suspect this case might well have come out another way if the the defendant was named Johnny Rex Dykes.)
I have not kept count of how many states are like South Carolina in requiring lifetime GPS monitoring of many sex offenders, but I am pretty sure this ruling could (and should?) have ripple effects in at least a few other jurisdictions. I am also sure that both constitutional scholars and those interested in the intersection of modern technology and criminal justice doctrines ought to check out the Dykes opinions.
May 9, 2012 at 06:20 PM | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20168eb5f933c970c
Listed below are links to weblogs that reference South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds:

Anonymous said...

May 9, 2012
South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds
The South Carolina Supreme Court has a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender. The ruling in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here), is a bit hard to figure out: the first opinion seems to announce the opinion for the court, but then a footnote at the state of Justice Hearn's opinion states that "[b]ecause a majority of the Court has joined the separate concurring opinion of Justice Kittredge, his concurrence is now the controlling opinion in this case." I will quote the first paragraph from both opinions in the case, because they both are noteworthy, starting here with the opinion of Justice Hearn:
Jennifer Rayanne Dykes appeals the circuit court's order that she be subject to satellite monitoring for the rest of her natural life pursuant to Section 23-3-540(C) of the South Carolina Code (Supp. 2010). She lodges five constitutional challenges to this statute: it violates her substantive due process rights, her right to procedural due process, the Ex Post Facto clause, the Equal Protection Clause, and her right to be free from unreasonable searches and seizures. We hold the mandatory imposition of lifetime satellite monitoring violates Dykes' substantive due process rights and reverse and remand for further proceedings.
The very lengthy opinion by Justice Hearn, which apparently garnered only two (of the five) votes on the court, is thereafter followed by a shorter opinion by Justice Kittredge which starts this way:
I concur in result. I commend my learned colleague for her scholarly research, and I agree with the majority's general proposition that persons have a fundamental right "to be let alone." But I respectfully disagree that Appellant, as a convicted child sex offender, possesses a right that is fundamental in the constitutional sense. I do not view Appellant's purported right as fundamental. I would find Appellant possesses a liberty interest entitled to constitutional protection, for all persons most assuredly have a liberty interest to be free from unreasonable governmental interference. I would find that the challenged mandatory lifetime, non-reviewable satellite monitoring provision in section 23-3-540(C) is arbitrary and fails the minimal rational relationship test.
Long story short, it appears that all members of the South Carolina Supreme Court have concluded that the mandatory lifetime satellite monitoring now required by stature in South Carolina for sex offender Jennifer Rayanne Dykes is unconstitutional. (I mention the full name of the defendant in this case because I cannot help but wonder, yet again, if the defendant's gender may have played at least an unconscious role in this notable outcome. I do not think it is implausible to at least suspect this case might well have come out another way if the the defendant was named Johnny Rex Dykes.)
I have not kept count of how many states are like South Carolina in requiring lifetime GPS monitoring of many sex offenders, but I am pretty sure this ruling could (and should?) have ripple effects in at least a few other jurisdictions. I am also sure that both constitutional scholars and those interested in the intersection of modern technology and criminal justice doctrines ought to check out the Dykes opinions.
May 9, 2012 at 06:20 PM | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20168eb5f933c970c
Listed below are links to weblogs that reference South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds:


Good luck to all... just another mom.

Anonymous said...

andhttp://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27124.htm

Anonymous said...

http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27124.htm

hurtingfamily said...

my husband is on ankle bracelet . he was in probation 2 years . never done nothing wrong , then wham , one day he came home told me the news showed me the bracelet . i just was o shocked and mad:! he said probation told him to get use to it , wont say how long he has to be on it . his situation happened in 2005 .was charged in 2009 , been on probation 4 yrs of 18 yrs so far:( its a living night mare. all these laws they keep putting in place limiting what freedom if any people have . and it not only affects him it affects our family. .what do i do ? im loss of options :( wrote governors of tenn . prayed and im trying to voice my concerns out in forums and debating web sites . i dont know how to write senator about all this . man i cant even write :(