Court says tracking of sex offenders not additional punishment

By Kristin M. Hall
The Associated Press

NASHVILLE — Tracking devices used to track sexual offenders in Tennessee are not intended as additional punishment, a federal appeals court has ruled.

A three-judge panel voted 2-1 in Friday’s ruling that the constitutional rights of a Knox County sexual offender, identified in the case as “John Doe,” were not violated.

But in a dissent, 6th U.S. Circuit Court of Appeals Judge Gregory F. Van Tatenhove said the global positioning system (GPS) device that must be worn at the waist outside of clothing amounts to a symbol of his crime — a modern-day “scarlet letter.”

Enacted in 2004, Tennessee’s tougher laws require any convicted sex offender who lives, works or goes to school in Tennessee to register in person with local law enforcement. Violent offenders, like Doe, were required to check in with sheriff’s departments four times a year and some wear monitoring devices.

Doe was convicted and sentenced for aggravated kidnapping and sexual battery before the new laws took effect. He claimed the state couldn’t retroactively reclassify him as a violent sexual offender.

Under the laws, Doe was required to wear the satellite-based monitoring box attached at his waist when he was not at home. “This box must be worn on one’s person outside any coat or other garment and therefore is obvious to any onlooker,” the defendant said.

However the court stated that device — weighing less than a pound and about six inches long, three inches tall and almost two inches deep — appears like a nondescript electronic gadget such as a cell phone.

“Furthermore, we have every reason to believe that the dimensions of the system, while not presently conspicuous, will only become smaller and less cumbersome as technology progresses,” the opinion stated.

Kirk Smith, assistant director of field services for the Board of Probation and Parole, said the department has newer models, including ones that are about 4 inches long and can be carried in a pocket or a purse, are much less noticeable. Some offenders are still wearing the old model referenced in the court ruling, but newer devices are being distributed.

“We’ve had complaints similar to what the plaintiff has alleged,” Smith said, but said she had not heard of anyone being harmed because of the monitoring device.

Many states have similar sex offender registry laws and some have faced legal challenges. But other federal appeals courts, including the U.S. Supreme Court, have ruled that the registration, surveillance or reporting requirements of these laws do not constitute additional punishment.

Brent Horst, a Nashville attorney who filed a separate challenge to Tennessee’s law, said he wasn’t surprised by the ruling. But he said he plans to file another lawsuit soon on the basis that it violates the state constitution.

Horst represented a sex offender in Davidson County who claimed the registry’s restrictions on where offenders may live — such as near a school zone or a day care center — were unconstitutional. The original law stated that offenders could not live or work within 1,000 feet from a school or day care center.

But Horst won an injunction from a federal judge in 2004 that said the state can’t enforce residency restrictions against those convicted before the law went into effect.

Melissa McDonald, a spokeswoman for the Board of Probation and Parole, said the residency requirements were later amended. Currently about 300 sex offenders wear the monitoring devices.

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