In the mid-1990s, Americans were shocked by several high-profile child victim sex offenses. In New Jersey, the abduction, rape and murder of seven-year-old Megan Kanka by a paroled sex offender who lived across the street horrified the state and spurred action by elected officials and state agencies.
In less than four months (warp speed for legislative processes), a package of bills was drafted, passed and signed into law.
These bills, known collectively as Megan's Law, included sex offender registration, community notification based on risk level, DNA testing, exclusionary zones, enhanced sentences, post-incarceration civil confinement, and probation/parole supervision for life. As the technology developed, GPS monitoring was added to the community supervision for life in New Jersey and many other states.
With the exception of DNA testing, none of these provisions had any empirical evidence to support their effectiveness as public policy. This was, however, no deterrent to the rapid and widespread adoption of similar legislation by states, with the active encouragement of the federal government. It was clear that citizens, legislators and governors felt the urgent need to do something to protect vulnerable children from sexual predators.
These laws had intuitive appeal, and that was sufficient to justify their enactment..
While a few legal and policy advocates objected to some of the laws, citing the negative impact of exclusionary zones on the ability to find appropriate housing, of community notification on the ability to find and maintain employment, and the unfairness of civil commitment after a sentence of incarceration had been served, their objections had little impact—especially for civil commitment after the Supreme Court upheld the constitutionality of the Kansas Sexually Violent Predator Act in 1997 in Kansas v. Hendricks.
Subsequent research has called into question the effectiveness of other aspects of Megan's Law, including registration and notification, residence restrictions, enhanced sentences, and revised parole polices. (But as is so often the case, the evidence or lack thereof for the efficacy of a particular public policy has little impact on the longevity of that policy.
One popular policy is lifetime supervision with GPS monitoring. There is some indication that the Supreme Court may join the debate on this issue. The Court recently sent a request for appeal back to the North Carolina Supreme Court with instructions for further consideration and development of a detailed legal record about the case and the issues raised.
The case deals with an appeal to the Supreme Court by a sex offender who was placed under lifetime GPS supervision. The North Carolina courts rejected the sex offender's appeals that the GPS monitoring was an unreasonable search under the Fourth Amendment.
The Supreme Court's per curium opinion in that case, Grady v. North Carolina (seems to indicate that the Court thinks that GPS monitoring is a search, and thus governed by the case law related to the Fourth Amendment and the prohibition on unreasonable searches. The Court recently ruled in U.S. v. Jones that the police practice of attaching a GPS monitoring device to a car without a warrant constituted a “search within the meaning of the Fourth Amendment.”
The Court noted that the State of North Carolina argues that “non-consensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court's precedents.”
The Court continued “(i)n light of these decisions, it follows that a State also conducts a search when it attaches a device to a person's body, without consent, for the purposes of tracking that individual's movements”.
Although I am not a lawyer, it appears to me that the Supreme Court may be leaning in the direction of declaring that GPS monitoring is a search within the meaning of the Fourth Amendment. If the Court rules that way, it still remains to be seen how it crafts the remedy and how the opinion sets forth the case law.
While we await the Court's ruling, the practice of lifetime supervision of sex offenders, with or without GPS or other electronic monitoring, deserves further examination and discussion. As noted above, the issue of protecting children from sex offenders is emotional and powerful. At some point, however, we need to test our assumptions and examine our practices.
Are they achieving our goals? At what cost?
Reviewing the research and practice of GPS and lifetime supervision, I see a series of issues that should be examined and researched and the results incorporated into an open dialogue about the efficacy of this practice.
While there is generally agreement that sex offenses are under-reported, and that officially reported recidivism rates for sex offenders are thus not truly accurate or fully reliable, this is the evidence that we have. And that evidence suggests that for both five-year and ten-year follow-ups of a sex offender, rates are far below that of other criminal offenders. Do these rates of reoffending justify lifetime monitoring?
As with most offenders, the The research of Blumstein and Nakamura with criminal offenders suggests that within eight to ten years, the risk level of the offender for committing a new offense approximates that of the general population.
Place of Offending
While the primary fear is that of “stranger danger,” the abduction of a child from a playground or bus stop, the evidence suggests that far more child-victim sex offenses occur in places familiar to the child— home, school, gym—than result from the “creepy stranger in a van” snatching a child from the street.
Unfortunately, the abduction (in 1991) and subsequent long term confinement (she was released in 2009) of Jaycee Dugard in California fed into the “stranger danger” fears of parents and policy-makers. Exclusionary zone laws prohibit sex offenders form being near school yards, where few sex offenses occur and encourage or require them to be at home, where the actual risk (as opposed to the perceived risk) is in fact greater.
Relationship to the Victim
Related to the prior point, the sex offender in most child victim cases are routinely not strangers, but rather are individuals that the victim knows and trusts. Are we tracking the right people?
Reliability of GPS
Any electronic/digital technology has reliability issues and GPS is no different. The units are battery powered and the battery needs to be kept charged. If not an alert will be sent. The technology relies on cell phone service to send alerts and in some parts of the US, cellular coverage is spotty. Even in the best coverage areas, cell calls are occasionally dropped for no apparent reason.
Effectiveness of GPS
We have a love affair with all things technological and a faith that they can make things better. But once again, we are operating with little to no evidence. There is precious little research on the effectiveness of GPS. A recently published study of GPS with high risk sex offenders in California showed that sex offenders on GS were less likely to fail to register as a sex offender, marginally less likely to abscond from supervision and less likely to commit a new offense.
There was no significant difference in the type of offense committed, so sex offenses were not affected any more than other criminal offenses. This is one study with a small number of subjects. More research needs to be done.
Limitations of GPS
The GPS monitors report the whereabouts of the offender, but that is all. We do not know what the offender is doing. It is one tool of many that a supervising officer must use to keep tabs on the sex offenders and ensure their compliance with the law.
GPS systems operate 24/7/365. They generate alerts all the time. Someone has to review the alerts, make a decision and take action. Some of the alerts can be screened by the vendor providing the service, but many have to be handled by the person responsible for the case, most often a probation/parole officer (PPO).
In an environment where probation and parole caseloads across the US are routinely too large, addition of high priority and high visibility cases which generate proportionately much greater demands than a regular criminal cases places added stress on the system.
This point bears repeating because responding to the alerts from the GPS units in a timely and effective manner is critical to the integrity of the monitoring process. Offenders will test the system and if there is no response, they will be emboldened to violate the conditions of their supervision.
With lifetime supervision, the sex offender caseload continues to grow with no relief in sight. In New Jersey, the State Parole Board's supervision caseload is becoming dominated by the community supervision for life (CSL) cases. In 2011, there were 5,067 CSL cases, representing 32.3% of the total supervision caseload. By 2014, the CSL cases number 7,031 or 46% of the caseload. (NJSPB Annual Report) That is an increase of 39% in just three years.
Even where the law may provide for discharge from lifetime supervision, it is typically only after many years. In New Jersey, an offender on CSL must wait 15 years after discharge from incarceration before seeking release from supervision. With the heightened perception of risk and the overall risk aversion that affects decision-making with sex offenders, it is unlikely that many courts or supervision agencies will be removing very many sex offenders from lifetime supervision
The Dugard case provides many critical lessons for GPS monitoring of sex offenders. For a portion of the time that the offender had Dugard in captivity, the offender was on GPS monitoring. The reports indicated that he was at home, so the parole officers were satisfied and investigated no further.
In reality, Duggard was confined in a building on the offender's property for more than a decade. The fact that a sex offender is at home should not be an “all clear signal.” Again, we may know where the offender is, but what is he doing?
The direct cost of monitoring is usually paid by the offender. In this current fiscal environment, that is seen as good thing. However, the indirect or hidden costs of monitoring the GPS alerts, responding to alerts, managing the equipment and the myriad other responsibilities related to GPS use are rarely discussed. They can be a significant burden to already financially strapped community corrections agencies.
If the Supreme Court rules that GPS monitoring is a search and thus subject to the protections of the Fourth Amendment, then states will have to adjust their practices to conform. Such a ruling will not, however answer the question of whether lifetime GPS monitoring is effective, for whom, under what circumstances and for how long.
I have long felt that many of the provisions of Megan's Law provide a false sense of security because the sex offender complies with all of the requirements of the law. Additional examination and research is essential to determine which elements of sex offender policy are effective.
Those which are effective should be supported and continued. Those elements which are not effective or cause additional harm (think of the sex offender encampments under the highway bridge in Florida) should be carefully and courageously reviewed.
William D. Burrell is a regular blogger for The Crime Report. An independent corrections management consultant specializing in community corrections and evidence-based practices, he spent 19 years as chief of adult probation services for the New Jersey state court system, and taught (2003-2007) in the Department of Criminal Justice at Temple University in Philadelphia. He welcomes readers' comments.