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Federal lawsuit against Wisconsin DOC alleges civil rights, due process violations

in Sirens

By Nicholas Garton, Madison 365

A Chicago law firm has filed a federal class-action lawsuit against the Wisconsin Department of Corrections alleging civil rights violations concerning the use of GPS monitoring for sex offenders — many of whom have completed their sentences and are not on any form of probation, parole or supervised release — and seeks an injunction to stop the state’s lifetime GPS monitoring program.

In September 2018, Madison365 reported on the decision by the then-Department of Corrections Secretary Cathy Jess to force people onto GPS after some had been living free and clear of the criminal justice system for months or years. Since then, Scott Walker, who appointed Jess, lost his re-election bid to Tony Evers, who appointed law enforcement veteran Kevin Carr to lead the department. Carr has not been confirmed by the State Senate and has not changed this practice, however.

Attorney Mark Weinberg told Madison365 on Tuesday morning that no one who is off supervision and has completed their sentence should be forced to wear GPS monitoring devices for their lifetimes.

“We hope the court will find that the state has to be constrained on how it uses GPS monitoring, especially on people who are off of supervision,” Weinberg told Madison365. “The State of Wisconsin is now also making everyone under supervised release wear GPS as well. Prior to this, that decision was under the discretion of the person’s parole agent. We hope the lawsuit will clarify the proper use of GPS. We don’t think anyone not on supervision should be subject to GPS, and it shouldn’t be automatic for the people who are on supervision, either.”

Download the lawsuit documents here.

The lawsuit names Jess, in her capacity as the Secretary of the Department of Corrections, as the defendant. The plaintiffs in the case are listed as Benjamin Braam, Alton Antrim, Daniel Olszewski, Andrew Christensen, William Person, Elizabeth Dillett, Guy Giese and Brian Clapper. They are being represented by attorneys Mark Weinberg and Adele Nicholas out of Chicago. Weinberg and Nicholas filed the lawsuit on Monday in the United States District Court for the Eastern District of Wisconsin in Milwaukee.

In September 2017, former Wisconsin Attorney General Brad Schimel issued an opinion to the Department of Corrections saying that any sex offender convicted of a sex offense on two or more separate occasions would meet the criteria for GPS and be placed on lifetime GPS monitoring with no recourse or court order. Prior to that, “Separate Occasions” was taken to mean that a person had committed sex offenses more than once and been convicted of multiple acts. But under Schimel’s new guideline that would include people who were convicted of multiple counts of sexual assault, even if those counts stemmed from a single incident..

For example, if a person got in a fight on State Street and was charged with both hitting and kicking a person, they could be convicted of multiple counts of assault, even though both counts happened in a single fight. Under Schimel’s guidelines, each punch or kick would be construed as a separate incident.

At the time, in 2017, DOC Secretary Jon Litscher decided to ignore Schimel’s guidelines.

Litscher retired in 2018 and incoming DOC Secretary Cathy Jess decided to enforce Schimel’s interpretation of who should be on GPS. Jess had the Sex Offender Registry Program (SORP) office send out letters to over 180 people telling them that they had to immediately and without question be placed on the lifetime sanction of electronic monitoring — and pay more than $200 per month for the equipment and monitoring.

Madison365 reported on this at the time and began to search for people who were off of supervision that were being placed on GPS monitoring forever.

The people who received letters from the Department of Corrections were told that Schimel had determined that they needed to be on lifetime monitoring and that they had five days to put the monitoring bracelet on or face felony charges.

Furthermore, once a person has been deemed to need to be on lifetime GPS, that person is not able to challenge that decision until they have worn the monitoring for 20 years. If a person is convicted of any crime during that time, even a misdemeanor, they permanently forfeit their right to challenge being on lifetime GPS.

One of the plaintiffs, Benjamin Braam, was told he had to be on GPS monitoring because he had multiple convictions. But Braam does not. He had one conviction on which he was found guilty of two instances of inappropriate sexual contact with a teenager when he was 22. According to statutes at the time of his conviction, Braam did not qualify for lifetime GPS monitoring.

It was only after Brad Schimel changed the criteria that Braam and many others even qualified for GPS monitoring.

Braam and Antrim, one of the other plaintiffs in this case, are no longer on supervision. The remaining plaintiffs are on Supervised Release and are currently subject to GPS monitoring. Under the new policy, that monitoring will continue for their entire lives even after their sentences are complete.

As of February 2019 Wisconsin had 1,742 people on GPS monitoring, 382 of which are like Braam and Antrim in that they aren’t even on probation or parole and have completely finished serving their sentences.

The Class Action suit contends that due process has been violated by subjecting people to what amounts to sanctions not spelled out in their original sentencing and that these citizens have had their Fourth and Fourteenth Amendment rights violated. The wearing of a government-sanctioned monitor which record all of the person’s whereabouts is an improper search, according to the documents filed on Monday.

Olszewski, 37, spent three years in prison for possession of illegal pornography. His Supervised Release ends in seven months. At first, he was on GPS monitoring when he was released. He spent five months on the monitoring but then his parole agent took him off GPS (perhaps citing the fact that being on GPS would not have stopped his computer-based crime). But in September, he was told he’d have to go back on it for life, based on Schimel’s new guidelines.

Christensen and Person also have convictions for possession of child pornography and served multiple-year sentences followed by Supervised Release. Christensen will be off supervision in three years and Person will be off in two. But each of them are subject to lifetime monitoring.

It is unclear how having these men wear GPS monitoring protects the community from what is a usually computer-related crime, and that lack of clarity is part of the argument Weinberg and Nicholas will be making in their lawsuit.

Furthermore, every sexual offender was already subject to an End Of Confinement Review Board (ECRB) prior to their release from prison. None of the plaintiffs in this case were determined to be at high risk for reoffense and none were, in the eyes of experts, deemed to be unnecessary risks to the community.

The Department of Corrections forces the people on GPS to pay up to $240 per month for the rest of their lives to be on it. That means the DOC receives up to $418,080 every month, or about $5 million per year, from people on monitoring.

In their lawsuit, the Plaintiffs in this case are looking for the court to impose an injunction that would stop the continued GPS monitoring, particularly as it pertains to people who are no longer part of the criminal justice system and have served all of their time.

The lawsuit will also explore the fact that none of these people have been allowed to go to court and have a judge decide whether or not they should be on GPS. Prior to Schimel’s sudden decision about what constitutes multiple convictions, six of the plaintiffs wouldn’t have even qualified for GPS monitoring and the suit contends that they were never recipients of due process.

Understandably, the community often recoils whenever sex offenders are mentioned. Almost no crimes impact society like crimes against children and women. Sexual assaults in the gay community are also under-reported in many instances.

But because of the nature of these offenses, it makes the people who perpetrate them easy targets for civil rights violations and poor treatment at the hands of a Department of Corrections that has wielded an enormous amount of power in the State of Wisconsin.

The actual amount of community safety provided by having people wear GPS monitoring for a lifetime has not been proven. Almost none of the offenses committed by this group of plaintiffs had anything to do with their locations, and in many cases those with GPS devices on are not even regularly monitored. In fact, DOC will remove the devices any time an offender says they wish to leave the state, no questions asked.

For people like Braam and Antrim and the other 300 people off of supervision, the lugging around of the GPS monitor does not appear to impact public safety because they don’t have any rules of where they can or can’t be.

Madison365 spoke to multiple people who wear the GPS monitor as sex offenders. One person said he went into a high school to do community work and was called by the Sheriff’s Department several days later just verifying that he was at that school. He said he was and the Deputy said “Okay” and hung up. That is the extent of what GPS provides the public with for men who are on monitoring but not on supervision.

Offenders on Supervised Release or Probation and Parole have a set of rules listing places they can and cannot go. So it’s pretty cut and dry in terms of where they should be. GPS monitoring could help enforce that but it’s somewhat faulty.

But people who are not on supervision have zero places they can’t be. So there is literally no public safety application to having them on GPS monitoring.

These issues, which have been reported on by Madison365 and also by Riley Vetterkind of the Wisconsin Center for Investigative Journalism, include the fact that GPS monitors often malfunction or fail to charge. When that happens, people are arrested and have lost jobs or housing as a result. People on GPS monitoring aren’t able to do regular activities like take a bath or go swimming because submerging the GPS monitor could destroy it, which is a felony.

The lawsuit itself discusses those issues and also claims that the Plaintiffs will be able to show that they lack an adequate legal remedy against being placed on GPS, which is causing them irreparable harm.

Madison365 is still awaiting responses from Attorney General Josh Kaul and the Wisconsin Department of Corrections about this lawsuit.

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