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GPS Monitoring and Constitutional Rights

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\\server05\productn\H\HLC\43-1\HLC113.txt unknown Seq: 1 4-JAN-08 11:45GPS Monitoring and Constitutional RightsZoila Hinson*Both Massachusetts Senate Bill No. 13511 and Florida’s Jessica’s Act2empower the state to require certain individuals to wear Global PositioningSystem (GPS) devices that record their movements and transmit informationto the police in order to prevent those individuals from entering forbiddenareas. Jessica’s Act mandates that individuals convicted of certain sexual of-fenses against children under the age of twelve be subject to lifetime elec-tronic monitoring,3 and states such as Pennsylvania and California haveenacted similar provisions.4 The Massachusetts bill allows courts to imposeGPS tracking on domestic abusers5 who have violated restraining orders andbeen identified as dangerous after an assessment.6 While the two laws bothconcern GPS tracking of criminals to prevent repeat offenses, they differsignificantly in their constitutional implications. Specifically, while statutesallowing GPS tracking of sex offenders will likely face constitutional chal-lenges on due process and Fourth Amendment grounds, the Massachusettsstatute will likely avoid these concerns by individualizing the application oftracking in terms of both the identity of the wearer and the area where thewearer is tracked.The Massachusetts statute will avoid the due process challenges thatJessica’s Act and its siblings may face due to class-based tracking. Statutesimposing GPS tracking on all sex offenders residing in a given state willlikely face due process challenges based on the absence of individualizedassessments, similar to those faced by other statutes imposing other require-ments or restrictions on sex offenders.7 In Connecticut Department of Public* J.D. Candidate, Harvard Law School, Class of 2009; A.B. Harvard University, 2004. Theauthor wishes to thank Sandra Pullman for all her help on this piece and her family for theircontinuing love and support.1S. 1351, 185th Gen. Ct., Reg. Sess. (Mass. 2007).22005 Fla. Sess. Law Serv. Ch. 2005-28 (H.B. 1877) (West).3See 2005 Fla. Sess. Law Serv. Ch. 2005-28 (H.B. 1877) (West); FLA. STAT. ANN.§ 947.1405 (West 2007).4See CAL. PENAL CODE § 1202.8 (West 2007); 42 PA. CONS. STAT. § 9798.3 (2007).5Because statistics indicate that 85% of intimate partner violence is committed againstwomen by their partners, largely in heterosexual relationships, I use male referents for thebatterer or abuser, and female referents for the victim. Further, femicide statistics bear out theprevalence of murders of female intimate partners by their male partners. See CALLIE MARIERENNISON, U.S. DEP’TOF JUSTICE, BUREAU OF JUSTICE STATISTICS, INTIMATE PARTNER VIO-LENCE, 1993-2001 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ipv01.pdf. [here-inafter RENNISON, INTIMATE PARTNER VIOLENCE].6S. 1351, 185th Gen. Ct., Reg. Sess. (Mass. 2007).7Restrictions on sex offenders that lack individualized assessments have also been chal-lenged on the grounds that they constitute ex post facto punishments. See, e.g., Doe v. Miller,405 F.3d 700 (8th Cir. 2005) (upholding an Iowa statute that prevented anyone convicted of asexual offense against a minor from living within 2,000 feet of a school or childcare facility).\\server05\productn\H\HLC\43-1\HLC113.txt unknown Seq: 2 4-JAN-08 11:45286 Harvard Civil Rights-Civil Liberties Law Review [Vol. 43Safety v. Doe,8 for example, plaintiffs challenged a Connecticut law that re-quired all convicted sex offenders to register with the Department of PublicSafety when released from prison and required the department to post a pub-lic registry with their names, pictures, addresses, and physical descriptionson the Internet.9 The plaintiffs argued, in part, that the law violated their dueprocess rights because it publicly stigmatized them without a hearing to as-sess their current dangerousness.10The Massachusetts bill would avoid these concerns by providing justsuch an individualized dangerousness assessment. Section 1 of the statuterequires the executive office of public safety to adopt a “uniform dangerous-ness assessment protocol” to determine which abusers are most likely toinjure their domestic partners and thus to decide who should be fitted with aGPS tracking device.11 Moreover, the statute, unlike residency restrictions onor GPS tracking of sex offenders, also individualizes the area from which thewearer is excluded. Laws limiting the residence or movement of sex offend-ers, for example, will exclude them from types of areas such as schools orchild care facilities.12 In contrast, the Massachusetts law would exclude thetracked domestic abuser only from particular areas frequented by his victim;the statute specifies that the GPS device transmits and records the abuser’slocation only “in the event the attacker enters [the victim’s] household,building, or workplace or household or educational facility of a minorchild.”13 Thus, the area from which the abuser is excluded would be individ-ualized and, moreover, would presumably be identical to the area fromwhich the restraining order alone would ban him. This individualization interms of both who must wear the tracker and where they are excluded,would render the statute immune from due process challenges that have em-battled statutes imposing requirements on sex offenders.The Massachusetts bill would also escape challenges that Jessica’s Actmay face based on Fourth Amendment rights against unreasonable search8538 U.S. 1 (2003).9Conn. Gen. Stat. §§ 54-251, 54-252, 54-254, 54-257, 54-258 (2001).10Respondent’s Brief at 17-18, Conn. Dep’t of Pub. Safety, 538 U.S. 1 (2003) (No. 05-428). Note that the Supreme Court ultimately rejected the due process claim on the groundsthat the underlying statute did not consider current dangerousness as a relevant factor in decid-ing whose identity would be publicized, and the plaintiffs had not proven that the substantivelaw was constitutionally defective. See Conn. Dep’t of Pub. Safety, 538 U.S. at 7.11S. 1351, 135th Gen. Ct., Reg. Sess. § 1 (Mass. 2007).12See, e.g., GA. CODE ANN. § 42-1-15 (2006) (prohibiting registered sex offenders fromliving or loitering “within 1,000 feet of any child care facility, church, school or area whereminors congregate” including playgrounds, school bus stops and parks); TENN. CODE ANN.§ 40-39-211 (2007) (prohibiting registered sex offenders from living or working within 1,000feet


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