By Joe Kelly | Courthouse News

CHICAGO (CN) — The Seventh Circuit on Friday weighed the intrusiveness of a Wisconsin statute that institutes lifetime GPS monitoring of certain convicted sex offenders against the necessity of preventing further offenses from that particular class of criminals.

The underlying suit was first filed as a federal class action by eight registered sex offenders in March 2019. They argued that a 2017 statutory interpretation by former Wisconsin Attorney General Brad Schimel that broadened the class of sex offenders subjected to lifetime GPS monitoring after the completion of their sentences constitutes an unreasonable search under the Fourth Amendment, calling the tracking “an intrusive search that provides the government detailed, real-time data about a person’s every move.”

Individuals convicted of sex offenses on two or more occasions were already subject to GPS monitoring under Wisconsin law, but Schimel’s 2017 interpretation and the subsequent application of his guidance the following year applied GPS monitoring to anyone convicted of more than one count.

The complaint originally named as a defendant former Wisconsin Department of Corrections Secretary Cathy Jess, who has since been replaced by Secretary Kevin Carr.

In December 2019, U.S. District Chief Judge Pamela Pepper of the Eastern District of Wisconsin, a Barack Obama appointee, denied the plaintiffs’ motion for a preliminary injunction blocking the GPS monitoring and dismissed their suit.

Three of the sex offenders from the class action promptly appealed to the Seventh Circuit, putting forth in their brief that “while the temptation to expand the power of the state to restrain the liberty of individuals who have been convicted of serious crimes in the past is understandable, constitutional constraints must be respected,” particularly since the GPS monitoring was imposed on them without them expecting it after their sentences and criminal supervision were completed.

For example, one of the plaintiffs, Benjamin Braam, was convicted on two counts of second degree sexual assault of a minor in 2000 and completed his sentence in March 2018. Braam was not subject to GPS monitoring and was not under any criminal supervision when he was released from prison. Seven months later, however, Braam got a letter from the Wisconsin Department of Corrections saying he would be forced to wear a GPS ankle monitor for the rest of his life.

During Friday’s roughly 30-minute arguments, plaintiffs’ counsel Adele Nicholas called the lifetime GPS monitoring “unique in its intrusiveness” in that it allows Wisconsin to track certain people via “unremovable monitoring devices, 24 hours per day, every day, until death.”

This kind of tracking, which is imposed categorically based solely on previous offenses, is “an extreme intrusion into bodily integrity,” Nicholas said.

U.S. Circuit Judge David Hamilton seemed skeptical of the proposition of longer prison sentences in lieu of GPS monitoring and wondered whether the plaintiffs should want their claim to be based solely on whether Schimel’s interpretation is correct.

Hamilton, a Bill Clinton appointee, asked Nicholas flatly “is that really what your clients would prefer?”

Nicholas said Schimel’s interpretation is not the only issue in the case and returned to her point that her clients “had no expectation that they would be monitored after the completion of their sentences” once their period of supervision was over based on a decision made by law enforcement, not the judiciary.

Assistant Wisconsin Attorney General Jody Schmelzer argued on behalf of the state that “repeat child sex offenders impose an intolerable risk” against the most vulnerable members of society and posited that the relevant Wisconsin law survives constitutional scrutiny.

Hamilton pressed Schmelzer on whether there is current empirical data to back up the notion that GPS monitoring reduces the recidivism rates of certain sex offenders, saying that high levels of recidivism is “very convenient to use” to justify GPS monitoring, but wondered whether it could still survive constitutional analysis if those recidivism rates were disproven.

When Schmelzer admitted she did not have that data, Hamilton asked “wouldn’t that be helpful to know?” 

“Presumably if this monitoring is serving a purpose, one would expect to see some empirical results,” Hamilton said.

Schmelzer offered that even if some studies show lower recidivism rates, that would not really show the full picture, in part because of the fact that “there’s some serious underreporting” of sex offenses against children, which carry “significant lifelong psychological scars.”

The panel also questioned the efficacy of GPS monitoring in preventing different kinds of sex offenses in reference to the fact that one of the plaintiffs, David Olszewski, was convicted on two counts of possession of child pornography, not sexual assault.

Schmelzer explained that GPS tracking could help establish a nexus between child pornography and contact offenses, and it could determine where an offender was when downloading child pornography on a computer.

But Schmelzer mostly just offered that “we don’t want to diminish the state’s effort to protect children from these crimes” and that society has already determined that sex offenders have a reduced expectation of privacy.

Upon rebuttal, Nicholas quickly summed up that “there’s no doubt that … Fourth Amendment rights are at stake and are greatly impacted by this GPS monitoring.”

The Seventh Circuit panel did not say Friday when it will issue its ruling in the case. U.S. Circuit Chief Judge Diane Sykes, a George W. Bush appointee, and U.S. Circuit Judge Amy St. Eve, a Donald Trump appointee, rounded out the three-judge panel.