Efficacy of GPS Monitoring for Sex Offenders: Legal Trends and Implications

1. parks V. State Lalaine A. Briones DEPUTY Executive Director Prosecuting Attorneys’ Council of Georgia

2. EFFICACY OF GPS MONITORING • The National Institute of Justice (NIJ) • Sponsored study on the effect of satellite-based monitoring of sex offenders in California. • Those placed on GPS monitoring had significantly lower recidivism rates than those on traditional supervision. • In fact, 38% more arrests were recorded in the group under traditional supervision as opposed to those placed on GPS monitoring.

3. Grady v. North Carolina, 135 S. Ct. 1368 (2015) • Supreme Court reviewed the case of a two-time sex offender subject to North Carolina’s lifetime satellite-based monitoring program. • Grady argued that the device violated his right to be free from unreasonable searches under the Fourth Amendment. • In deciding the case the Supreme Court cited two of it’s previous decisions, United States v. Jones 565 U.S. 400 (2012) and Florida v. Jardines, 569 U.S. 1 (2012).

4. Grady v. North Carolina, 135 S. Ct. 1368 (2015) United States v. Jones 565 U.S. 400 (2012) The U.S. Supreme Court determined that the Government's installation of the GPS device on defendant's vehicle, and its use of that device to monitor the vehicle's movements, constituted a "search." Under the common-law trespassory test, the Government physically occupied private property for the purpose of obtaining information. Such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted.

5. Grady v. North Carolina, 135 S. Ct. 1368 (2015) • Florida v. Jardines, 569 U.S. 1 (2012) • At the Fourth Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.

6. Grady v. North Carolina, 135 S. Ct. 1368 (2015) • Supreme Court reviewed the text of the statute which required time correlated and continuous tracking of the geographic location of the subject and reporting of subject’s violations of prescriptive and proscriptive schedule or locations requirements. • Based of the statute’s language, Jones and Jardine, the Court held attaching a device to a person’s body, without consent, for the purpose of tracking that individual’s movements was in fact a search. • Supreme Court remanded to the lower to determine if the search it self was reasonable.

7. Belleau v. Wall, 811 F.3d 929 (2016) • In 2006 Wisconsin enacted Wis. Stat. § 301.48, requiring that persons released from civil commitment for sexual offenses wear a GPS monitoring device 24 hours a day for the rest of their lives. The statute applies to any sex offender released from civil commitment on or after the first day of 2008. • Belleau claimed that the statute violates both the Fourth Amendment to the Constitution and the prohibition of states' enacting ex post facto laws—laws that either punish people for conduct made criminal only after they engaged in it or increase the punishment above the maximum authorized for their crime when they committed it.

8. Belleau v. Wall, 811 F.3d 929 (2016) • 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 understood in the Constitution; it is prevention. The aim of the anklet 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, supra, 538 U.S. at 97, for Wisconsin to conclude that all formerly committed sex offenders pose too great a risk to the public to be released without monitoring.

9. Park v. State, 305 Ga. 348 (2019) • Park argued that OCGA § 42-1-14 (e) was unconstitutional on its face because it authorizes an unreasonable lifelong warrantless search of sex offenders who are classified as sexually dangerous predators by requiring such offenders to wear and be monitored at all times through a GPS monitoring device. • Does this qualify as a Search • Yes, Grady v. North Carolina • Is the search reasonable • Concluded that OCGA § 42-1-14 (e) is unconstitutional on its face to the extent that it authorizes searches of individuals, like Park, who are no longer serving any part of their sentences in order to find evidence of possible criminal conduct.

10. Park v. State, 305 Ga. 348 (2019) • Does the State act qualify as a search • Is the Search Reasonable - whether warrantless search is authorized • (1) whether the searches involved may be reasonable under the Fourth Amendment due to the individuals being searched having a diminished expectation of privacy, and • (2) whether the warrantless searches authorized by the statute may be permissible based on “special needs.”

11. Diminished Expectation of Privacy • Inmates • Parolees • Probationers • Anyone currently under sentence or supervision

12. Parks – Blackwell, Boggs, Bethel and Padgett • But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.

13. Michigan • 750.520n Lifetime electronic monitoring. Sec. 520n. (1) A person convicted under section 520b or 520c for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age shall be sentenced to lifetime electronic monitoring as provided under section 85 of the corrections code of 1953, 1953 PA 232, MCL 791.285.

14. Michigan • 791.285 Lifetime electronic monitoring program establishment; • Sec. 85. (1) The lifetime electronic monitoring program is established in the department. The lifetime electronic monitoring program shall implement a system of monitoring individuals released from parole, prison, or both parole and prison who are sentenced by the court to lifetime electronic monitoring. The lifetime electronic monitoring program shall accomplish all of the following: • (a) By electronic means, track the movement and location of each individual from the time the individual is released on parole or from prison until the time of the individual's death. • (b) Develop methods by which the individual's movement and location may be determined, both in real time and recorded time, and recorded information retrieved upon request by the court or a law enforcement agency.

15. Sexual Offenses – Life Probation § 16-6-1. Rape (forcible) A person convicted of the offense of rape shall be punished by death, by imprisonment for life without parole, by imprisonment for life, or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life.

16. Sexual Offenses – Life Probation • § 16-6-2 Aggravated Sodomy A person convicted of the offense of aggravated sodomy shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life.

17. Sexual Offenses – Life Probation • § 16-6-4. Child Molestation – Second Conviction Except as provided in paragraph (2) of this subsection, upon a second or subsequent conviction of an offense of child molestation, the defendant shall be punished by imprisonment for not less than ten years nor more than 30 years or by imprisonment for life and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7; provided, however, that prior to trial, a defendant shall be given notice, in writing, that the state intends to seek a punishment of life imprisonment.

18. Sexual Offenses – Life Probation • § 16-6-4 Aggravated Child Molestation • A person convicted of the offense of aggravated child molestation shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life, and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.

19. Sexual Offenses – Life Probation • § 16-6-22.2. Aggravated Sexual Battery • A person convicted of the offense of aggravated sexual battery shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life, and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.

20. Passing Constitutional Muster • Does the State act qualify as a search • Is the Search Reasonable - whether warrantless search is authorized • (1) whether the searches involved may be reasonable under the Fourth Amendment due to the individuals being searched having a diminished expectation of privacy, and • (2) whether the warrantless searches authorized by the statute may be permissible based on “special needs.”

21. Consider a Provision to Petition for Termination • Wis. Stat. § 301.48 • A person may not file a petition requesting termination of lifetime tracking earlier than 20 years after the date on which the period of lifetime tracking began. If a person files a petition requesting termination of lifetime tracking at any time earlier than 20 years after the date on which the period of lifetime tracking began, the court shall deny the petition without a hearing.

22. Current Litigation • Petition for Writ of Certiorari to the Supreme Court of the United States filed in Kaufman v. Evers. • Wisconsin Statute • Question presented: can the State of Wisconsin subject child sex offenders and repeat sex offenders to lifetime location tracking consistent with the Fourth Amendment. • No. 18-1111 filed June 19, 2019.

23. The Ex Post Facto Clause • Proscribes enactment of retroactive laws. • Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal and punishes said action. • Every law that aggravates a crime, or makes it greater than it was, when committed. • Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. • Every law that alters the rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense.