Mandatory GPS monitoring of some sex offenders violates privacy rights, SJC rules

Mandatory GPS monitoring of some sex offenders violates privacy rights, SJC rules

By John R. Ellement GLOBE STAFF  MARCH 26, 2019

Convicted sex offenders retain a constitutional right to privacy, and those rights are being violated by a state law mandating that everyone convicted of some sex crimes wear a GPS monitoring bracelet as part of their sentence, the state’s highest court ruled Tuesday.

In a 7-0 ruling, the Supreme Judicial Court decided that privacy protections found in both the state and federal constitutions apply to sex offenders, who are entitled to a case-by-case review of whether GPS monitoring is needed to protect society.

“The government does not have an ‘unlimited’ ability to infringe upon a probationer’s still-existing, albeit diminished, expectations of privacy,’’ Justice Frank M. Gazianowrote for the court. “GPS monitoring is not a minimally invasive search.”

The court said judges must now make an “individualized” determination that GPS monitoring is necessary in order to protect the public, especially children, from the offender, and will also decide whether GPS monitoring will help with rehabilitation of the defendant.Get Metro Headlines in your inbox:The 10 top local news stories from metro Boston and around New England delivered daily.Sign Up

“Mandatory, blanket imposition of GPS monitoring on probationers, absent individualized determinations of reasonableness, is unconstitutional under the Massachusetts Declaration of Rights,’’ Gaziano wrote.

The decision was issued in the case of Ervin Feliz, who pleaded guilty in Suffolk Superior Court to possession and distribution of child pornography and was ordered to spend five years on probation during which he would wear a GPS device and be monitored by the state probation department.

Feliz, who was also ordered to wear a GPS device while awaiting trial, argued the mandate should not apply to him in part because the probation department’s monitoring system excessively triggers alerts even when he was in compliance.

His attorney, David R. Rangaviz, also argued that his client is not a public safety risk and was classified as a Level 1 sex offender by the Sex Offender Registry Board, which meant he was considered least likely to reoffend.

In its ruling, the SJC said that Feliz will no longer have to wear a GPS device because prosecutors have not shown he is a danger to children, because his conviction was a “noncontact sex offense,” and because an expert did not consider him a threat to public safety.

“The reproduction and dissemination of child pornography itself harms the children who are depicted and revictimized with each viewing,’’ Gaziano wrote. But “the Commonwealth’s particularized reasons for imposing GPS monitoring on this defendant do not outweigh the privacy intrusion occasioned by the requirement of GPS monitoring.”

Rangaviz on Tuesday applauded the decision as one that reinforces public safety, not diminishes it. Studies have shown low-risk offenders wearing GPS devices can lose housing and jobs due to false alarms from GPS devices, eliminating stabilizing factors needed for successful rehabilitation.

And judges can still order the use of GPS, he noted.

“If you treat sex offenders [as] one category of people and you don’t treat them as individual human beings, the system isn’t going to work well from a public safety perspective,’’ he said. “From a public safety perspective, this is the best result.”

Gaziano wrote that GPS monitoring is an invasive government act that continues for days, weeks, or months, and is not a one-time intrusion like the law requiring defendants to provide a DNA sample collected by briefly swabbing a person’s mouth.

“GPS monitoring gathers vastly more information than otherwise would be collected in accordance with a defendant’s other conditions of probation” including where one is physically located, how fast they are traveling, and whether one is walking, running, or driving, and stores all of the data for potential later use by government agencies.

“In these circumstances, the government interests do not outweigh the privacy infringement occasioned by GPS monitoring,’’ Gaziano wrote.

The court noted, however, that a judge can readily find that another sex offender, especially those classified as Level 2 and Level 3 and therefore more likely to reoffend, should be monitored by a GPS bracelet.

According to the SJC, more than 3,900 people are currently being monitored through the GPS program operated by the probation department. The ruling potentially affects 879 convicted sex offenders, according to the department.

Rangaviz said he hoped to have the GPS device removed from his client as soon as possible.John R. Ellement can be reached at Follow him on Twitter @JREbosglobe.

Sex Offenders Are Not Second-Class Citizens,’ Says Judge While Nixing Alabama Rules on First Amendment Grounds

Sex Offenders Are Not Second-Class Citizens,’ Says Judge While Nixing Alabama Rules on First Amendment Grounds

The decision rejects driver’s licenses labeled “CRIMINAL SEX OFFENDER” and a broad demand for reports on internet use.

Jacob Sullum|Feb. 13, 2019 1:15 pm, Reason

“Sex offenders are not second-class citizens,” writes U.S. District Judge W. Keith Watkins in a recent decision overturning two provisions of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA) on First Amendment grounds. “The Constitution protects their liberty and dignity just as it protects everyone else’s.”

Those points, which should be obvious, are a sadly necessary corrective to the hysteria that has driven legislators in one state after another to enact indiscriminate, mindlessly restrictive, and covertly punitive laws aimed at sex offenders. ASORCNA, which Watkins calls “the most comprehensive and debilitating sex-offender scheme in the nation,” is a prime example.

The lead plaintiff in this case, dubbed John Doe 1, pleaded guilty to two misdemeanor charges of indecent exposure in the early 1990s, when he was living in Wisconsin. He received a six-month suspended sentence for each charge and was not required to register as a sex offender, even after moving to Alabama in 1994. But 14 years later, Alabama expanded its registry, forcing Doe to comply with ASORCNA’s numerous demands and restrictions under threat of imprisonment. Among other things, that meant his driver’s license was marked with the phrase “CRIMINAL SEX OFFENDER” in bold red letters. Here is how Doe describes the consequences of that notation:

I have never felt so embarrassed and ashamed in all of my life. I would not wish showing this on my worst enemy. It makes me not want to go places where I have to show it, and I try not to go places where I know I will have to. But every week, there is some places that ask me to show it, and every time, I get them evil looks from people—like I’m a murderer or something. I done paid for what I did over 25 years ago. Nobody should have to carry this. It ain’t right, but I don’t have a way out.

On Monday, Judge Watkins ruled that Alabama’s branding of registered sex offenders’ identification cards is a form of compelled speech prohibited by the First Amendment. “The branded-ID requirement compels speech,” he writes, “and it is not the least restrictive means of advancing a compelling state interest.” The state conceded that its ostensible purpose of alerting police officers to a sex offender’s status could be served by a much less conspicuous mark, such as a letter, that the general public would not readily recognize as a badge of shame. “Using one letter would keep officers informed while reducing the unnecessary disclosure of information to others,” Watkins notes.

Another aspect of Alabama’s “debilitating sex-offender scheme” is a requirement that people in the registry report “email addresses or instant message addresses or identifiers used, including any designations or monikers used for self-identification in Internet communications or postings other than those used exclusively in connection with a lawful commercial transaction.” Registrants also have to keep the authorities apprised of “any and all Internet service providers” they use. The information, which includes mundane activities such as logging into a Wi-Fi network outside the home or registering with a website to comment on news articles, must be reported within three business days, and local law enforcement agencies have the discretion to demand that it be done in person.

That requirement also violates the First Amendment, Watkins concluded. “An offender must report to the police every time he connects to a Wi-Fi spot at a new McDonald’s, every time he uses a new computer terminal at a public library, every time he borrows a smartphone to read the news online, and every time he anonymously comments on a news article,” he writes. “Every time he walks into a new coffee shop, he must determine whether opening his laptop is worth the hassle of reporting.” Those burdens “chill a wide swath of protected speech under penalty of felony,” Watkins says, making the law “facially overbroad.”

Watkins notes that the demand for information about online activity applied to Doe and the other four plaintiffs even though their offenses had nothing to do with the internet or children. And like other ASORCNA provisions, such as its restrictions on residency and employment, the rule applies for life, even though the risk of recidivism for most offenders declines over time to the point that registrants pose no greater threat than the average person. “The failure to account for risk is a problem throughout ASORCNA,” Watkins observes. “Not all sex crimes are the same. Nor are all offenders the same.”

That’s a striking statement from a judge who was appointed by George W. Bush just two years after the U.S. Supreme Court upheld Alaska’s sex offender registry based partly on fictitious recidivism numbers that continue to influence state and federal courts. It’s a message that judges and legislators throughout the country need to hear.

Attorney General Nessel Weighs in On Sex Offender Registration Cases Before MI Supreme Court

Attorney General Nessel Weighs in On Sex Offender Registration Cases Before MI Supreme Court

February 8, 2019

LANSING, MI – Michigan Attorney General Dana Nessel filed amicus briefs in the Michigan Supreme Court today in Michigan v Snyder (Case number 153696) and People v Betts (Case number 148981), arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.

“When originally put into place, Michigan’s Sex Offender Registration Act was narrow in scope and specifically designed to be an important law enforcement tool to protect the public from dangerous offenders,” said Nessel.  “But since its enactment, the Act has swelled without any focus on individualized assessment of risk to the community, which makes it increasingly difficult for law enforcement officers to know which offenders to focus on. It also makes it difficult for offenders to rehabilitate and reintegrate into the community because they are limited in where they can live, work or even attend their children’s school functions.”

Nessel also pointed out that public accessibility of the registry has led to shaming, ostracizing, and even bullying of registrants and their families.  Because the registry now allows the public to submit tips on the registry website, the public is essentially encouraged to act as vigilantes, opening the possibility for classmates, work colleagues and community members to be vindictive and retaliatory.

“There are certainly dangerous sexual predators and the public needs to be protected from them,” said Nessel, “but the current requirements are not the way to achieve that goal.”

Amendments to the Act in 2006 and 2011 – especially geographic exclusionary zones and in-person reporting requirements –are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety.  The Sixth Circuit Court of Appeals recently agreed, holding that Michigan’s SORA is punishment and cannot be applied retroactively.  A number of state supreme courts have struck down their state registry laws on similar grounds.

“Simply put,” said Nessel, “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification.”


Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates Fall

Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates Fall

 “These policies don’t work—let’s focus on something that does work.”

Lists that include out-of-state visitors are inflating the numbers and keeping fear at a boil.

by Steven Yoder,

Quentin (not his real name) was convicted eight years ago of child pornography possession in Florida. He served his time and has since moved to another state. But his sentence required his photo and other personal details to appear on Florida’s sex offender registry, and there they will stay for the rest of his life, even if he never sets foot in the state again.

The state’s registry is padded with thousands of Quentins, people who don’t live in Florida. Under a change to state law passed this spring, there will soon be more: Starting July 1, out-of-state registrants who visit for at least three days (down from five) must go to a sheriff’s office to have their personal details added to Florida’s list. If they don’t, they face a third-degree felony.

Rules like that aren’t unique—22 other states keep out-of-state visitors on their registries for life, according to a study released last November. It’s one reason state lists misrepresent the actual number of people with sex-crime records living in communities. As already-bloated lists keep ballooning, they feed the impression of a growing population of dangerous people who require ever-more-extreme laws to monitor and control.

On May 30, the National Center for Missing & Exploited Children (NCMEC) released its latest nationwide count of names on state sex offender registries. For the first time ever, the total was more than 900,000. NCMEC spokesperson Staca Shehan told The Appeal the organization doesn’t share data on growth trends because changes in state laws and other anomalies can make it difficult to accurately compare the data across years. But calculations by William Dobbs of Dobbs Wire, who tracks sex-offender registry developments nationwide, show a 3 percent jump in the nationwide number in the last six months. That’s slightly faster than in the past; increases have fluctuated between about 3 and 5 percent annually since 2007. Even if the growth rate returns to that historical average, by 2021 more than a million names will be on registries.

Many of those entries are duplicates like Quentin or represent people who are not actually part of a state’s population for some other reason. In a 2014 study in the journal Crime & Delinquency, a research team found that in the 42 states and two territories studied, 19 percent of those on registries were still behind bars, 9 percent lived out of state, and 3 percent had been deported. Of Florida’s 55,000 registrants at the time, more than 31,000 were in one of those three categories. “It’s a concern of ours,” Shehan said of problems with the count. She says NCMEC has no way of knowing how often an offender shows up on multiple state lists. “So that means then there’s duplicated offenders in our grand total,” she said. “And we have no way of knowing how often that happens.”

Dobbs, an adviser to the Sex Offense Litigation and Policy Resource Center affiliated with the Mitchell Hamline School of Law in St. Paul, says the inaccuracies are symptoms of a malignant logic at the heart of registries: that people who have served their time should be put on public lists because of the ineffable risk of what they might do in the future. Problems with registries can’t be fixed, he says, because the concept itself is a “broken” one. “It turns people into suspects forever—or at least as long as they’re on it,” he said. “The politicians have created this giant naming-and-shaming train and are fueling it with fear.”

One of Quentin’s cousins is getting married in October and invited him to be in the wedding in Florida, says Quentin’s mother. But to participate in the various events, he would need to stay more than three days—meaning a trip to the local sheriff’s office to get a new photo taken and have the address where he’s staying and the license plates of any cars he will drive added to Florida’s public registry. So Quentin is skipping the wedding.

Even if registry counts are inflated, it’s likely that the real number of registrants is rising as state lists scoop up an ever-broader swath of the population. One reason: New state laws governing who must register are typically applied retroactively to cover those who offended before the laws passed.

(Retroactive punishment is banned by the U.S. Constitution, but the Supreme Court ruled in 2003 that being placed on a registry doesn’t count as punishment. Since then, as evidence has emerged that registration is indeed punitive, the retroactive provisions of state sex-offense laws are being struck down: Several courts have ruled since 2016 that they violate the Constitution’s ban.)

Under the Adam Walsh Child Protection and Safety Act, passed in 2006, states have been required to expand their registries to cover people convicted of a broader set of crimes. The number on Wyoming’s registry in 2011, for instance, rose to 1,450 from 125 after the state passed legislation compliant with the act that required children and teens to be registered. As other states try to comply by passing new laws, additional categories of people get put on their registries, Shehan says.

And sex-offense laws trigger long registration periods, making entry onto the list mostly a one-way door. In 19 states, sex offender registration lasts for life for adults; in 16 others, it’s 15 to 30 years; and in another 14, it’s a minimum of 10 years, according to the Restoration of Rights Project run by the Collateral Consequences Resource Center and its partner organizations.

NCMEC’s steadily inflating number is catnip for those who traffic in evergreen scare stories. One website advises parents to use the map in deciding where to move. States with high per-capita sex offender populations might not be a good choice, it implies. NCMEC itself may feed those fears with its marketing: On its website, photos of missing kids are adjacent to the link to its sex offender tracking map.

But research shows that sex-offender maps have almost nothing to do with protecting children. Nearly all sexual abuse is perpetrated by someone not on a registry; first-time offenders commit north of 90 percent of new sex crimes, according to studies in New York and Minnesota. Most sexual violence victims know their perpetrators—86 percent in a Bureau of Justice Statistics study published in 2000. And those with a sexual offense on their record have low sex-crime reoffense rates: 12 percent on average, according to a definitive 2014 meta-analysis of 21 other studies. Those same researchers found that re-offense risk declines the longer that someone lives in the community crime-free. For those who hadn’t reoffended by 10 years after an initial sexual offense, their risk of committing a new sex crime was 1 to 5 percent—a rate comparable to ex-offenders with no history of sex crime.

Sex-offense laws trigger long registration periods, making entry onto the list mostly a one-way door.

All of that might explain why the registry count and sex-crime rates are traveling in opposite directions. Multiple studies show rates of sexual violence falling significantly after the early 1990s. “I care about [the inflated count] from a policy perspective because it keeps people in fear,” said Alissa Ackerman, a California State University, Fullerton criminologist who was part of the 2014 Crime & Delinquency research team and has co-authored numerous studies of sexual-offense issues. “It keeps them wanting legislation—you know, we have to do something. … It’s maps like this and propaganda like this that keep people feeling that way.”

Ackerman says rather than expanding the list, more resources should be focused on sexual-violence prevention programs and on mental health services and treatment for people who have experienced and committed sexual abuse. “That’s not where we’re putting our money,” she said. “These policies don’t work—let’s focus on something that does work.”

Shehan says NCMEC’s map isn’t intended to scare people. The group’s prevention education materials make clear the danger of sexual abuse committed by a stranger on a registry is small, she says. But she acknowledges that message could be clearer on the map itself. “We’ve taken several precautions and made adaptations to the map in the past,” she said. “That’s one I can definitely add to the list of considerations.”

This article was originally published on on July 3, 2018; reprinted with permission. Copyright, The Appeal, a project of Tides Advocacy