Time to Revisit Sex Offender Supervision for Life

In the mid-1990s, Americans were shocked by several high-profile child victim sex offenses. In New Jersey, the abduction, rape and murder of seven-year-old Megan Kanka by a paroled sex offender who lived across the street horrified the state and spurred action by elected officials and state agencies.

In less than four months (warp speed for legislative processes), a package of bills was drafted, passed and signed into law.

These bills, known collectively as Megan’s Law, included sex offender registration, community notification based on risk level, DNA testing, exclusionary zones, enhanced sentences, post-incarceration civil confinement, and probation/parole supervision for life. As the technology developed, GPS monitoring was added to the community supervision for life in New Jersey and many other states.

With the exception of DNA testing, none of these provisions had any empirical evidence to support their effectiveness as public policy. This was, however, no deterrent to the rapid and widespread adoption of similar legislation by states, with the active encouragement of the federal government. It was clear that citizens, legislators and governors felt the urgent need to do something to protect vulnerable children from sexual predators.

These laws had intuitive appeal, and that was sufficient to justify their enactment..

While a few legal and policy advocates objected to some of the laws, citing the negative impact of exclusionary zones on the ability to find appropriate housing, of community notification on the ability to find and maintain employment, and the unfairness of civil commitment after a sentence of incarceration had been served, their objections had little impact—especially for civil commitment after the Supreme Court upheld the constitutionality of the Kansas Sexually Violent Predator Act in 1997 in Kansas v. Hendricks.

Subsequent research has called into question the effectiveness of other aspects of Megan’s Law, including registration and notification, residence restrictions, enhanced sentences, and revised parole polices. (But as is so often the case, the evidence or lack thereof for the efficacy of a particular public policy has little impact on the longevity of that policy.

One popular policy is lifetime supervision with GPS monitoring. There is some indication that the Supreme Court may join the debate on this issue. The Court recently sent a request for appeal back to the North Carolina Supreme Court with instructions for further consideration and development of a detailed legal record about the case and the issues raised.

The case deals with an appeal to the Supreme Court by a sex offender who was placed under lifetime GPS supervision. The North Carolina courts rejected the sex offender’s appeals that the GPS monitoring was an unreasonable search under the Fourth Amendment.

The Supreme Court’s per curium opinion in that case, Grady v. North Carolina (seems to indicate that the Court thinks that GPS monitoring is a search, and thus governed by the case law related to the Fourth Amendment and the prohibition on unreasonable searches. The Court recently ruled in U.S. v. Jones that the police practice of attaching a GPS monitoring device to a car without a warrant constituted a “search within the meaning of the Fourth Amendment.”

The Court noted that the State of North Carolina argues that “non-consensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents.”

The Court continued “(i)n light of these decisions, it follows that a State also conducts a search when it attaches a device to a person’s body, without consent, for the purposes of tracking that individual’s movements”.

Although I am not a lawyer, it appears to me that the Supreme Court may be leaning in the direction of declaring that GPS monitoring is a search within the meaning of the Fourth Amendment. If the Court rules that way, it still remains to be seen how it crafts the remedy and how the opinion sets forth the case law.

While we await the Court’s ruling, the practice of lifetime supervision of sex offenders, with or without GPS or other electronic monitoring, deserves further examination and discussion. As noted above, the issue of protecting children from sex offenders is emotional and powerful. At some point, however, we need to test our assumptions and examine our practices.

Are they achieving our goals? At what cost?

Reviewing the research and practice of GPS and lifetime supervision, I see a series of issues that should be examined and researched and the results incorporated into an open dialogue about the efficacy of this practice.


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