Profs. Dickey, Ross, Lichstein in News

Posted: 2007-02-14 02:30:00

A letter from UW Law School Professors Walter Dickey, Meredith Ross, and Byron Lichstein to Wisconsin Corrections Secretary Matthew Frank has engendered a highly visible debate among state legislators.

The three professors from the Law School's Frank J. Remington Center warned Frank in a letter dated February 3 that a new state law forcing sexual predators to wear tracking devices for the rest of their lives is unconstitutional.

"A clearer example of governmental intrusion into personal privacy is difficult to imagine," the professors wrote.

The following Associated Press article was published in Madison's Capital Times February 9, 2007:

Professors: Tracking sex offenders is unconstitutional

Associated Press

A new state law forcing sexual predators to wear tracking devices for the rest of their lives is unconstitutional, according to three University of Wisconsin-Madison law professors.

The measure violates privacy rights and amounts to punishment and warrantless surveillance when applied to offenders who aren't on parole or government supervision, the professors said in a letter sent to Corrections Secretary Matthew Frank on Feb. 3.

"A clearer example of governmental intrusion into personal privacy is difficult to imagine," wrote law professors Walter Dickey, Byron Lichstein and Meredith Ross.

The law's main author, state Rep. Scott Suder, R-Abbotsford, called the professors "Monday morning quarterbacks" with weak arguments.

"They might want to talk to the victims of these crimes before they make such outrageous statements," Suder said. "Nothing is going to stop us form implementing GPS. We are on very solid constitutional grounds."

The law, which takes effect July 1, requires the Corrections Department to use global positioning technology to track offenders found to be sexually violent. Tracking would begin when they're released from prison and continue for the rest of their lives. The requirement would also extend to serious child molesters.

The law calls on Corrections to establish zones where offenders could not linger and ensure the bracelets immediately alert the agency or local police if they violate those zones.

Corrections officials asked for .7 million and nearly 235 additional positions in the two-year budget starting July 1 to run the tracking system.

The professors argue forcing offenders on supervised release to wear trackers is unnecessary because they're already being supervised and forcing offenders who have completed their government supervision is unconstitutional. Corrections has no authority over them, they said.

The measure doesn't authorize police to stop offenders from moving into off-limits zones, the professors point out. That means the measure doesn't protect the public, negating a possible legal defense.

Constantly wearing a GPS unit that must be recharged every 12 hours amounts to punishment and warrantless surveillance, the professors wrote.

"Constant, lifetime GPS tracking is physically and psychologically burdensome," they said.

Anne Sappenfield, an attorney with the state Legislative Council, said in a Jan. 3 letter to state Rep. Mark Pocan -- the only member of the state Assembly to vote against the law -- the measure could be unconstitutional because it applies to sex offenders who were convicted before the law was enacted.

Suder insisted the law is designed to protect the public, not punish offenders. He said the law allows Corrections to write rules on how to handle zone incursions.

Pocan, D-Madison, a member of the Legislature's Joint Finance Committee, called the law a "knee-jerk" reaction.

"The bill was written in such a way to say 'hey, we're tough on sex offenders' instead of actually being tough on sex offenders," Pocan said.

Questions should be raised about the law now, before the Legislature releases millions of dollars in the upcoming state budget for the tracking system, Pocan said. That money could be better spent on helping Corrections develop ways to determine if individual offenders might re-offend, he said.

Frank's executive assistant, Susan Crawford, said Corrections has run into a myriad of problems as it prepares to implement the bill.

The law provides no penalty for offenders who refuse to wear the trackers, Crawford said. Corrections has no authority to return a sex offender on GPS who has completed his sentence to prison, and nothing in the law allows police to stop them for a violation, she said.

"It points to a need for the Legislature to ... fix some of these defects," she said.

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