# Doe v. Bredesen

> Court of Appeals for the Sixth Circuit · November 16, 2007 · 507 F.3d 998

URL: https://www.frixlaw.com/law-library/cases/9629388

## Case

- **Full name:** John DOE, v. Phil BREDESEN, Governor of the State of Tennessee, Charles M. Traughber, Chairman, Tennessee Board of Probation and Parole, Mark Gwyn, Director of the Tennessee Bureau of Investigation, and Randall Nichols, District Attorney General 6th Judicial District, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** November 16, 2007
- **Citations:** 507 F.3d 998; 2007 U.S. App. LEXIS 26630; 2007 WL 3406761
- **Precedential status:** Published
- **Opinion:** Concurring in part by Keith
- **Judges:** Keith, Griffin, Van Tatenhove
- **Cited by:** 200 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9629388

## How later opinions describe it (automated extraction)

- concluding that newly enacted Tennessee statute authorizing GPS monitoring of previously convicted sex offender while still on probation did not violate Ex Post Facto Clause because statute was intended to be nonpunitive and its effects were not so punitive as to negate that i…
- explaining that the role of a court is not to “second-guess the state legislature’s policy decision as to which measures best effectuate [the act’s regulatory] purpose” but rather to determine whether “the regulatory means chosen are reasonable”
- holding the Tennessee legislature could rationally conclude sex offenders pose a high risk of recidivism and that electronic monitoring could reduce the risk of recidivism and protect the public without punishing offenders
- finding, as nonpunitive, a “satellite-based monitoring” restriction for a sex offender on probation or parole, because the fact of his probation or parole rendered him a “violent sexual offender” and, thus, the restriction furnished “intensive supervision” integral to public p…
- holding despite restrictions on his daily activities as a result of wearing the GPS device, because the Monitoring Act did not increase the length of his incarceration, or prevent him from changing jobs, residences or traveling, it was not a punitive restraint

## Opinion text

DAMON J. KEITH, Circuit Judge,
concurring in part and dissenting in part.
The crux of the matter before us concerns Tennessee’s Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 (the “Registration Act”), Tenn.Code Ann. § 40-39-201 et seq, and the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (the “Surveillance Act”), Tenn. Code Ann. § 40-39-301 et seq. Doe, a convicted sexual offender, alleges that the Registration Act and the Surveillance Act violate the Ex Post Facto Clause of the United States Constitution. Specifically, Doe takes issue with (1) the retroactive application of the Registration Act (§ 40-39 — 207(f)(1)(B)), which requires Doe to register with the Tennessee sexual offender registry for the remainder of his life, and (2) the enactment and retroactive application of the Surveillance Act (§ 40-39-301 et seq.), which allows the Tennessee Board of Probation and Parole to enroll Doe in a “Satellite-Based Monitoring Program” to monitor (via a global positioning system (“G.P.S.”)) his movements while on probation. Because our Circuit has foreclosed Doe’s argument with respect to the Registration Act, see Cutshall v. Sundquist, 193 F.3d 466, 476-77 (6th Cir.1999), I concur with the majority’s dismissal of this claim. 1 However, as to the Surveil *1009 lance Act, I strongly disagree with the majority’s decision to affirm the district court’s dismissal of this claim. I cannot, in good conscience, join my colleagues’ opinion which finds no constitutional violation in requiring Doe to wear a relatively large box as a symbol of his crime for all to see. The Surveillance Act, particularly the satellite-based monitoring program, as applied to Doe, is punishment, excessive, and indeed, the modern day “scarlet letter.” I vigorously dissent.
A. Ex Post Facto Clause
To begin, I note that the majority only considered the intent of the Registration Act. 2 Therefore, it is necessary to analyze the legislature’s objective in enacting the Surveillance Act.
As the majority noted, “[w]e must [first] ‘ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.’ ” Smith v. Doe, 538 U.S. 84, 92 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003) (quoting Kansas v. Hendricks, 521 U.S. 346, 361 , 117 S.Ct. 2072 , 138 L.Ed.2d 501 (1997)). According to the Tennessee legislature, the intent of the Surveillance Act is to “utilize the latest technological solutions to monitor and track serious criminal offenders and violent sex offenders[.]” 2004 Pub. Acts Ch. 899, § 2. Furthermore, the Tennessee legislature declared that “[i]n-tensive supervision of serious offenders and violent sex offenders is a crucial element to both the rehabilitation of the released convict and the safety of the surrounding community[,]” and technological solutions, like the satellite-based monitoring program,
can now also provide law enforcement and correctional professionals with significant new tools for electronic correlation of the constantly-updated geographic location of supervised serious offenders and violent sexual offenders following their release with the geographic location of reported crimes, both to possibly link released offenders to crimes or to possibly exclude released offenders from ongoing criminal investigations[.]
Id at § 3. As such, “[c]ontinuous twenty-four (24) hours a day, seven (7) days a week electronic monitoring of those convicted of serious and violent sexual offenses is a valuable and reasonable requirement[.]” Id. Because monitoring, rehabilitation, and public safety concerns seem to be the legislature’s purpose in enacting the Surveillance Act (in particular, the satellite-based monitoring program), the statutory scheme gives no indication that it is criminal. See Smith, 538 U.S. at 93 , 123 S.Ct. 1140 (noting that “nothing on the face of the statute suggests that the legislature sought to create anything other than a civil ... scheme designed to protect the public from harm.” (quotation marks omitted)).
Having found that the legislature’s intent is non-punitive, I turn to the analysis of the relevant factors set forth in Smith to determine whether the Surveillance *1010 Act’s scheme is so punitive in purpose or effect as to constitute punishment. See Smith, 538 U.S. at 97 , 123 S.Ct. 1140 .
1.History and Traditions as Punishment
The practice of requiring sex offenders to wear global monitoring systems for the purposes of continuous monitoring is fairly new. The recent origin of satellite-based monitoring “suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing.” See Smith, 538 U.S. at 97 , 123 S.Ct. 1140 . However, a closer look at the satellite-based monitoring program, though new, shows that it bears a striking resemblance to historical forms of punishment.
According to Doe, forced enrollment in the satellite-based monitoring program “require[s][him] to carry ... at all times when not at his residence a relatively large box which contains the electronics necessary for the monitoring to take place. This box must be worn on [his] person outside any coat or other outer garment and therefore is obvious to any onlooker.” 3 Accepting Doe’s allegation as true, as I must (under a Rule 12(b)(6) review), the monitoring device is visible to the public when worn and must be worn everywhere Doe goes. Indeed, this would serve as a catalyst for public ridicule — ridicule likened to the punishment of public shaming or humiliation. Public shaming, humiliation, and banishment are well-recognized historical forms of punishments. See Smith, 538 U.S. at 97-98 , 123 S.Ct. 1140 ; Femedeer v. Haun, 227 F.3d 1244, 1250-51 (10th Cir.2000); Cutshall, 193 F.3d at 475 ; E.B. v. Verniero, 119 F.3d 1077, 1099-1100 (3d Cir.1997).
Therefore, because, in the necessary operation of the Surveillance Act, Doe is required to wear a plainly visible monitoring device at all times in public as well as in private (except in his home), the satellite-based monitoring program results in public shaming and humiliation — both of which are historical methods of punishment. This factor weighs in favor of finding the Surveillance Act effectively punitive.
2. Affirmative Disability or Restraint
Tennessee’s satellite-based monitoring program does not impose an affirmative disability or restraint on Doe. While Doe is required to wear a visible monitoring device, he is allowed to move freely, and there is no imposition of physical restraint. Thus, the satellite-based monitoring program “does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint.” See Smith, 538 U.S. at 100 , 123 S.Ct. 1140 . This factor weighs against finding the Surveillance Act’s scheme punitive in purpose or effect.
3. Promotes the Traditional Aims of Punishment
One of the traditional aims of punishment is deterrence. Requiring that a per *1011 son convicted of a violent sexual offense be monitored via satellite by wearing a visible device will likely promote deterrence. While “[t]o hold that the mere presence of a deterrent purpose renders such sanctions ‘criminal’ ... would severely undermine the Government’s ability to engage in effective regulation!,]” Smith, 538 U.S. at 102 , 123 S.Ct. 1140 (quotation marks omitted), the “satisfaction of this factor ... does weigh in ... favor” of finding the Surveillance Act’s satellite-based monitoring program punitive in effect. See Cutshall, 193 F.3d at 476 .
4. A Rational Connection to a Non-Punitive Purpose
“A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” See Smith, 538 U.S. at 103 , 123 S.Ct. 1140 . Here, the non-punitive purpose of the satellite-based monitoring program is to monitor sex offenders while providing rehabilitation for released offenders and safety for the community. See 2004 Pub. Acts Ch. 899, § 3(c). In addition, the monitoring program allows law enforcement officials to “possibly link released offenders to crimes or to possibly exclude released offenders from ongoing criminal investigations!.]” Id. at § 3(e). Hence, there is a rational connection to its non-punitive purpose. Consequently, this factor weighs against finding the Surveillance Act’s satellite-based monitoring program punitive in purpose or effect.
5. Excessiveness
“The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the non-punitive objective.” See Smith, 538 U.S. at 105 , 123 S.Ct. 1140 (emphasis added). It is settled that sexual registries are constitutional, and are non-excessive means of protecting the public and the community from sexual offenders. See id. at 105-06 , 123 S.Ct. 1140 ; Hatton v. Bonner, 356 F.3d 955, 967 (9th Cir.2004); Fedemeer, 227 F.3d at 1253 ; Cutshall, 193 F.3d at 477 . Tennessee, however, now attempts to enhance the registry requirements by enacting the Surveillance Act which compels (at the discretion of the Tennessee Board of Parole and Probation) offenders to continuously wear relatively large satellite monitoring devices that are obvious to onlookers.
Under the Registration Act, Doe is already tasked with complying with an exhaustive list of requirements which includes filling out a Tennessee Bureau of Investigation form; thereby, making his personal information available for public viewing through the internet-based sexual offender registry. See Tenn.Code Ann. § 40-39-204. Now, because of the newly enacted satellite-based monitoring program under the Surveillance Act, Doe must openly wear a relatively large G.P.S. monitoring device — making his offender status known not only to those who choose to inquire (via the World Wide Web), but also to the general public, namely, those who do not actively seek such information. Undeniably, because of the visibly worn monitoring device, Doe’s offender status is now known to his co-workers, fellow worshipers at church, onlookers at the mall, diners at restaurants, patrons at gas stations, passengers on planes, trains, or buses, fans at sporting events, moviegoers at theaters, visitors at museums, sightseers, or any other person who may be at any conceivable location where Doe rightfully chooses to go within his probation limits.
To be sure, my concern was captured in the April 2007 evaluation of the satellite-based monitoring program conducted by *1012 the Tennessee Board of Probation and Parole. See note 3. In the report, state officials related the following story:
Shortly after the GPS project was put into place and was covered by the media, one offender reported that he had been verbally assaulted in the parking lot of a retail store. He alleged that a random male approached him saying, “I know what that is, I know who you are,” and pointed at the PTU. The offender felt threatened and felt that he would have been physically harmed had he not immediately removed himself from the situation.
Report at 36.
I fail to see how putting all persons in public places on alert as to the presence of offenders, like Doe, helps law enforcement officers geographically link offenders to new crimes or release them from ongoing investigations. It equally eludes me as to how the satellite-based monitoring program prevents offenders, like Doe, from committing a new crime. Although the device is obvious, it cannot physically prevent an offender from re-offending. Granted, it may help law enforcement officers track the offender (after the crime has already been committed), but it does not serve the intended purpose of public safety because neither the device, nor the monitoring, serve as actual preventative measures. Likewise, it is puzzling how the regulatory means of requiring the wearing of this plainly visible device fosters rehabilitation. To the contrary, and as the reflection above denotes, a public sighting of the modern day “scarlet letter” — the relatively large G.P.S. device — will undoubtedly cause panic, assaults, harassment, and humiliation. Of course, a state may improve the methods it uses to promote public safety and prevent sexual offenses, but requiring Doe to wear a visible device for the purpose of the satellite-based monitoring program is not a regulatory means that is reasonable with respect to its non-punitive purpose.
Sexual offenses unquestionably rank amongst the most despicable crimes, and the government should take measures to protect the public and stop sexual offenders from re-offending. However, to allow the placement of a large, plainly obvious G.P.S. monitoring device on Doe that monitors his every move, is dangerously close to having a law enforcement officer openly escorting him to every place he chooses to visit for all (the general public) to see, but without the ability to prevent him from re-offending. As this is clearly excessive, this factor weighs in favor of finding the Surveillance Act’s satellite-based monitoring program punitive.
Having found that the Surveillance Act’s satellite-based monitoring program, in its necessary operation, (1) has been regarded in our history and traditions as punishment, (2) promotes the traditional aims of punishment, and (3) is excessive with respect to its non-punitive purpose, I must conclude that the punitive effects of the Surveillance Act transformed what Tennessee denominated a civil remedy into a criminal penalty.
Therefore, I would REVERSE the district court’s finding that the Surveillance Act is constitutional as applied to Doe, and grant the preliminary injunction enjoining the state of Tennessee from enforcing such punishment.
. While Doe contends that the newly imposed lifetime sexual registry requirement under the Registration Act violates the Ex Post Facto Clause, this Court, in Cutshall, 193 F.3d at 476-77 , applied the factors articulated by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 , 83 S.Ct. 554 , 9 *1009 L.Ed.2d 644 (1963), and concluded that the Tennessee Act enacting the sexual registry, and applied retroactively, did not violate the Ex Post Facto Clause. Because this Court has already held that the Tennessee sexual registry, applied retroactively, is not punishment in violation of the Ex Post Facto Clause, Doe's claim (that the Registration Act's new lifetime requirement, applied retroactively, is a violation of the Ex Post Facto clause) must fail.
. By considering both the Registration Act and the Surveillance Act as “the 2004 Act,” the majority contends that the Tennessee legislature expressed the intent of the Surveillance Act in § 40-39-201 et seq. However, the provisions that the majority quoted at length (§ 40-39-201(b)(6) and (8)) only apply to the Registration Act (§ 40-39-201, et seq). It does not apply to the Surveillance Act, § 40-39-301 et seq.
. An April 2007 report (the ''report'') by the Tennessee Board of Parole and Probation reviewing the satellite-based monitoring program confirms Doe's complaint that he must wear a box for the monitoring to take place. See http://www2.tennessee.gov/bopp/Press% 20Releases/BOPP% 20GPS% 20Program% 20 Evaluation,% 20April% 202007.pdf. According to the report, the box is called the personal tracking unit ("PTU”) and is worn on the waist of the offender at all times. The report makes no mention of whether the PTU must be worn on the outside of one’s person. However, the report does reveal the manufacturer of the PTU (iSECURETtrac), and an illustration on their website indicates that the PTU is worn on a belt around one’s waist, visible for all to see. See htt p://www. isecuretrac.com/downloads/SPECS_ 20051005_iST_2150_225 0.pdf.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9629388. Public record. Not legal advice.