Is that a sex offender GPS device on your pants or are you just glad to see me?

Pardon the randy post title, but I could not resist a bit of levity when reporting an interesting aspect of today's Sixth Circuit denial of en banc rehearing in Doe v. Bredesen.  As detailed here, a Sixth Circuit panel last November split in Doe v. Bredesen, No. 06-6393 (6th Cir. Nov. 16, 2007) (available here) when rejecting a challenge to the application of Tennessee's new GPS sex-offender tracking rules.  Judge Keith dissented from that panel ruling and today he has five other Sixth Circuit judges joining his dissent from the denial of en banc review.  Here are snippets from the dissent (with cites omitted):

This case presents a rare “question of exceptional importance” for which en banc review is appropriate....  The Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (the “Surveillance Act”), imposes retroactively a requirement that all convicted sex offenders not only register with the Tennessee sexual offender registry, but also wear a relatively large device (a global positioning system, “G.P.S.”) at all times....

[G]iven the large size of the G.P.S. device, the Surveillance Act violates Appellant Doe’s constitutional rights under the Ex Post Facto Clause.  The box measures 6 inches by 3.25 inches by 1.75 inches. Doe v. Bredesen, 507 F.3d 998, 1005 (6th Cir. 2007).  The box must be worn outside any coat or outer garment, making it plainly visible to onlookers. Id. at 1002. In essence, this box is a modern day “scarlet letter,” branding sex offenders with a marker of their crime for all to see.

I believe that the retroactive application of the Surveillance Act constitutes an Ex Post Facto Clause violation because (1) as a catalyst for public ridicule, it is a form of shaming, humiliation, and banishment, which are well-recognized historical forms of punishment; (2) it promotes the traditional aims of punishment; and (3) it is excessive in forcing Doe to broadcast his sex offender status not only to those who choose to inquire, but also to the general public....

Whether or not other members of this court agree with my dissent, this issue is important enough to merit review by the full court.  We must be careful, in our rush to condemn one of the most despicable crimes in our society, not to undermine the freedom and constitutional rights that make our nation great. I dissent.

Some related posts on sex offender GPS tracking:

• Split Sixth Circuit panel addresses challenges to Tennessee sex offender GPS rules
• Lifetime GPS tracking after consensual teenage sex
• The devil's in the details of GPS tracking of sex offenders
• Is GPS tracking a better way?
• More on the pros and cons of GPS tracking
• The practical challenges of sex offender tracking
• New article examining incapacitation innovations
• Major Human Rights Watch report about sex offender sanctions