Joel M. Flaum
Richard A. Posner
Wisconsin lawmakers didn’t violate the U.S. Constitution when they mandated that anyone deemed to be a sexually violent person wear a GPS monitoring device following his or her release from civil commitment, a federal appeals court has held.
The 7th U.S. Circuit Court of Appeals last week upheld a state statute requiring such persons to wear a monitoring device for the rest of their lives.
All the members of a three-judge panel rejected Michael J. Belleau’s argument that the statute violates the Constitution’s prohibition on ex post facto laws.
The panel acknowledged the statute was enacted after Belleau committed the crimes that landed him first in prison and then in a treatment center under a civil commitment order.
And the panel acknowledged that Article I, Section 10, Clause 1 prohibits punishing people for conduct made criminal only after they engaged in it or increasing the sentence for their crime above the maximum that was in place when they committed it.
However, the panel’s majority wrote, citing cases that included Smith v. Doe, 358 U.S. 84 (2003), and Mueller v. Raemisch, 740 F.3d 1128 (7th Cir. 2014), Wisconsin’s requirement of lifetime, 24-hour-a-day monitoring “is not punishment; it is prevention.”
In Kansas v. Hendricks, 521 U.S. 346 (1997), the majority wrote, the U.S. Supreme Court held that civilly committing sex offenders who have a psychiatric compulsion to molest children helps guard against such crimes.
GPS monitoring serves the same purpose, Judge Richard A. Posner wrote in an opinion joined by Judge William J. Bauer.
“Having to wear the monitor is a bother, an inconvenience, an annoyance,” Posner wrote Friday, “but no more is punishment than being stopped by a police officer on the highway and asked to show your driver’s license, or being placed on a sex offender registry.”
In a concurring opinion, Judge Joel M. Flaum agreed with his colleagues’ holding.
“The language of the monitoring statute indicates that the legislature’s objective was to protect children, not punish sex offenders,” he wrote.
Factors supporting his conclusion that the law is not punitive, he wrote, citing Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), include the inconspicuousness of the ankle monitor Belleau wears.
Wearing the monitor also does not impose a “significant disability or restraint” on Belleau, Flaum wrote.
He wrote that Belleau must wear the monitor all the time and must plug it into an electrical outlet for about an hour a day to charge it.
“The restraint imposed by these requirements in minimal and incidental to the law’s actual purpose — tracking Belleau’s movements,” Flaum wrote.
And he wrote the monitoring requirement is not excessive in light of the fact that pedophilia “is a lifelong affliction for which there is no treatment.”
The panel overturned a ruling by Chief U.S. District Judge William C. Griesbach of the Eastern District of Wisconsin that the monitoring statute is unconstitutional.
Laurence J. Dupuis of the American Civil Liberties Union of Wisconsin in Milwaukee argued the case before the 7th Circuit on behalf of Belleau.
He could not be reached for comment.
Anthony D. Russomanno of the Wisconsin attorney general’s office in Madison argued the case on behalf of the state.
In a statement, Wisconsin Attorney General Brad Schimel said the 7th Circuit’s ruling “strikes a proper balance under the Constitution.”
“As the court recognized, the program is designed to lower the risk of re-offense of a repeat child sex offender, and it properly promotes public safety by deterring offenses by a particularly concerning subset of individuals,” he said.
In 1992, Belleau was convicted in Wisconsin state court of repeatedly sexually assaulting a boy over five years beginning when the victim was 8 years old.
Belleau was sentenced to a year in jail followed by probation. He was still on probation when he was convicted of the 1988 sexual assault of a 9-year-old girl.
Belleau was paroled after serving six years of a 10-year sentence, but landed back in prison a year later after admitting he had “groomed” two girls — one who was 4 years old and the other 5 — for sexual activity.
Belleau was civilly committed to the Sand Ridge Secure Treatment Center in 2004 and released in 2010.
He is required to wear a GPS monitor under a law enacted in 2006 that requires such monitoring for anyone released from civil commitment in 2008 or later.
In its opinion, the 7th Circuit’s majority also rejected Belleau’s argument that the monitoring violates his rights under the Fourth Amendment.
Any burden on Belleau must be weighed against the benefit to the public, Posner wrote.
“It is because of the need for such balancing that persons convicted of crimes,” he wrote, “especially very serious crimes such as sexual offenses against minors, and especially very serious crimes that have high rates of recidivism such as sex crimes, have a diminished reasonable constitutionally protected expectation of privacy.”
Flaum had the same take on the matter.
“Although privacy is a value of constitutional magnitude, it must yield, on occasion, to the state’s substantial interest to protect the public through reasonable regulations in appropriate circumstances,” he wrote.
The case is Michael J. Belleau v. Edward F. Wall, et al., No. 15-3225.