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February 1, 2016

Seventh Circuit panel upholds Wisconsin's lifetime GPS monitoring for certain sex offenders against various constitutional complaints

As reported in this local Wisconsin article, headlined "Court upholds GPS tracking of sex offender convicted before law passed," a Seventh Circuit panel late last week reversed a district judge's determination that a Wisconsin law requiring lifetime GPS tracking of certain sex offenders was constitutionally problematic. Here are the basics from the start of the news report:

Making a Wisconsin sex offender wear a GPS anklet for life, when he was convicted before that was the law, does not violate the constitutional prohibition against retroactive punishment, a federal appeals court has ruled.  A three-judge panel of the 7th U.S. Circuit Court of Appeals on Friday reversed a Green Bay federal judge who found the lifetime tracking improper for 72-year-old Michael Belleau.  The case had been argued before the court earlier this month.

In 2012, two years after Department of Corrections officials affixed an ankle bracelet on him after his discharge from civil commitment, Belleau sued, claiming the practice amounted to an ex post facto law, banned by the Constitution, as well as unreasonable search and seizure without a warrant.

In September, Chief U.S. District Judge William Griesbach agreed, saying Belleau had served his sentences and couldn't be punished further just because the state now thinks the original sentence was too lenient.  "Nor may the state force Belleau to wear a GPS tracking device around his ankle so that it can record his movement minute-by-minute for the rest of his life because it believes he might commit another crime in the future," Griesbach wrote. "The state's authority over the individual is not unlimited."

But Judge Richard Posner agreed with the state's position that the GPS monitoring is merely regulatory, not punitive, and doesn't limit where Belleau can go, like someone on probation.  Posner also agreed that it's not an illegal retroactive law because the monitoring was triggered by Belleau's discharge from civil commitment in 2010, after the GPS law took effect in 2006, not his earlier criminal convictions.  "So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor."

The full ruling in Belleau v. Wall, No. 15-3225 (7th Cir. Jan. 29, 2016), which rejects both a Fourth Amendment claim and an ex post facto claim lodged by the sex offender to the lifetime GPS requirement, is available at this link.

February 1, 2016 at 02:45 PM | Permalink


Since it is not criminal punishment--merely regulatory--then neither prosecutors nor judges themselves have any basis to complain when the people--in their righteous indignation--rise up and regulate the bar profession by requiring prosecutors and judges to wear GPS ankle monitors for life.

Posted by: Daniel | Feb 1, 2016 2:52:41 PM

What happens if that former sex offender decides to get even with this law by targeting prosecutors and politicians for revenge, God forbid?

Posted by: william r. delzell | Feb 1, 2016 3:57:03 PM

What happens if that former sex offender decides to get even with this law by targeting prosecutors and politicians for revenge, God forbid?


Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Feb 1, 2016 5:38:13 PM

The 7th Circuit demonstrates that George W. was right:

The Constitution isn't worth the paper it was written on and the "State" can do ANYTHING it likes to any individual at any time.

Freedom of movement IS limited by merely needing to recharge the batteries. Also, who is paying for the damn thing, uh Posner you apologist you?

Tracking is probation you idiots!

Posted by: albeed | Feb 1, 2016 6:13:06 PM

Posner really mailed this one in. First of all, while he is undoubtedly correct that commitment is much more intrusive than GPS monitoring, it is also equally true that commitment requires a hearing--the GPS statute does not. Second, he pooh-poohs the privacy interests--while there is no privacy interest in one's movement in public places, there is certainly a privacy interest in one;s movement in private locations. Moreover, there's the privacy interest in one's bodily integrity--Posner's incremental argument overstates the privacy interests (i think he's thinking more about consumer protection law, not the constiution) that the RSO has lost (has to tell government address and the government can tell everyone about his convictions---gee do people have a privacy right to keep convictions quiet?--who knew) and Posner understates the rights of the RSO--i.e., the right to be free of bodily invasions,

Just a weak opinion,

Posted by: federalist | Feb 1, 2016 9:15:19 PM


I know that you and I do not see eye to eye on many things but you are being too kind. Posner not only mailed it in, he passed gas into the manila envelope because he thinks federal judges gas doesn't stink and that's all he mailed in, and I am being KIND!

PS: I thought the civil commitment turd was polished by claiming that it was for treatment of "mental abnormalities" and not additional monitoring/punishment. I wonder what kind of treatment the GPS is providing, does it have a microphone and is a PO whispering sweet nothings into his ear?

Ah, the false mantra of "safety", which the government CANNOT reasonably provide as proscribed in a previous USSC judgment that LEOs are not obligated to protect the people who pay them.

It is a wonderful world our guberment is making, all feelz and no substance.

Posted by: albeed | Feb 2, 2016 11:04:32 AM

albeed---your comment needs more analysis--a lack of analysis convinces no one.

Posted by: federalist | Feb 2, 2016 11:38:02 AM

"...lack of analysis....".

What's good for the goose.... Nobody owes anybody anything. Legal analysis is often the misuse of the common meaning and understanding of words and I thank God every morning that I am not a lawyer.

Posted by: albeed | Feb 2, 2016 2:46:14 PM

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