Tracking sex criminals for life is test of law, state

2-2-2008 North Carolina:

In January 2007, the state started tracking dozens of sex offenders with satellites, anklets and belt-clip transmitters for the rest of their lives. A year into the program, it's not clear whether it's constitutional -- or whether the state can afford it over the long haul.

Like the sex offender registries that began in the 1990s, Global Positioning System tracking programs aim to keep law enforcement agencies in constant contact with convicted criminals who often backslide. Registries can tell officers and the public where sex offenders live; GPS anklets can show where they are every second of every day.

The law requires judges to impose lifetime GPS tracking for repeat or aggravated sex offenders and violent sexual predators. The state spent about $750,000 on the program last year, but that figure will only grow as more offenders don the tracking equipment.

State and federal lawsuits have challenged lifetime tracking. They say it marks the felons with a "scarlet letter" and violates their rights to due process, equal protection and freedom from unreasonable search and seizures.

"It will be very expensive and very difficult," said Fayetteville lawyer Gerald Beaver, who is fighting the program in federal court. "It opens a Pandora's box in criminal jurisprudence."

Currently, about 85 offenders are on supervised monitoring, and probation officers check their whereabouts about three times a week; more than 60 of those must wear the anklets for the rest of their lives.

Another 40 are on unsupervised tracking for life. State officials, not a probation officer, check on them once a week.

Between 600 and 700 probation officers have access to computer software, satellites and cell-phone towers that receive signals from offenders' anklets and waist transmitters. The devices show up as dots on a map on an officer's computer screen, and an alarm goes off if the signal is lost or if the offender enters an exclusion zone -- near a school, for example.

UNC-Chapel Hill law professor James Markham said tracking can be a useful investigative tool, even if officers use it only to determine whether an offender was near a crime scene. But Sarah Preston, legislative coordinator with the American Civil Liberties Union of North Carolina, disagreed.

"They'll look into sex offenders who were in the area instead of looking into whether there were other possible perpetrators," she said.

Preston's protest echoes others who complain that the devices mark the wearers as criminals even after their sentences.

"It's a lifetime of Big Brother monitoring," said Chapel Hill trial lawyer Glenn Gerding. "It's like being branded with the Scarlet A."

Not always effective

Beaver has filed a federal lawsuit calling GPS tracking unconstitutional, on behalf of a man who took indecent liberties with a 15-year-old girl.

Beaver said Jay Usategui of Cumberland County lost his job because deputies and probation officers kept showing up or calling when they lost satellite contact. He said his client struggles to keep the equipment dry while bathing, and frequently has to stop his car and exit buildings when his transmitter loses contact with a satellite.

The lawsuit focuses on the fact that the Cumberland County Sheriff's Office imposed GPS tracking after Usategui had already been sentenced. Usategui will join about a dozen other offenders in Cumberland County Superior Court on Friday in trying to fight retroactive GPS sentences.

Last November, the 6th U.S. Circuit Court of Appeals upheld retroactive GPS monitoring saying that it's not punishment but civil regulation. That court does not have jurisdiction in North Carolina, but Markham said it could persuade judges here.

Free, but still jailed
Beaver's complaint to the federal district court for Eastern North Carolina also calls the GPS program unconstitutional "on its face." For example, he says, the program requires an offender to remain at home from midnight to 6 a.m. each day.

"That's basically house imprisonment for one-quarter of your life," said Beaver.

Rowland declined to say whether her office had ever required offenders to stay home between midnight and 6 a.m.

Beaver argues that GPS monitoring is an unreasonable search and seizure in violation of the Fourth Amendment.

Markham said strict sex-offender laws are popular with the public but might not survive legal scrutiny.

"No state wants to be the state that is most friendly to sex offenders," he said. "The sex-offender lobby is not very effective. It's sort of a one-way ratchet of severity. I wouldn't be surprised if this does get to the Supreme Court within a number of years."

Worth the cost?

Outside the constitutional issues, some have questioned whether the GPS program is sustainable as more offenders join the program but few drop off. "There are so many people that are under this, and it is so expensive to monitor people for 24 hours a day that they're wasting their time," said Beaver.

The ACLU opposes the practice as "bad public policy," arguing it impedes rehabilitated offenders' integration into society and costs too much. The ex-convicts pay a one-time fee of $90. "The state's carrying the costs," said Preston.

Rowland does not know whether the state will be able to pay for the program in the long term. The legislature approved a $1.3-million annual budget for the program, but administrators don't have a full fiscal year's worth of data to know whether that is enough. ..more.. by jesse.deconto@newsobserver.com or (919) 932-8760
News researchers Denise Jones and Brooke Cain contributed to this report.