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Federal judges butt heads with U.S. lawmakers over legality of ankle monitors for nonviolent suspects

In a clash that has surfaced in federal courthouses across the country and a recent Houston case, a collection of judges have held it is their duty to set conditions of release for accused sex offenders despite a strict law that limits their discretion. Full Article

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This is a really good article, overall. To summarize a bit, it’s about judges who contend that laws that inflexibly mandate things like pre-trial GPS monitoring of persons accused of sexual offenses removes their ability to set bail and pre-trial release conditions and is an unconstitutional violation of 8th amendment by infringing on a defendant’s right to due process.

There are lots of good quotes in there, for example:

“Federal judges in multiple jurisdictions have held that the [Adam] Walsh amendments violated the equal protection and due process clauses and the separation of powers doctrine, which gives the judiciary discretion over court matters.”

“The Adam Walsh act restricts liberty interests without giving a defendant any opportunity to demonstrate that those limitations on liberty are unnecessary,”

I thought this was particularly good:


Hughes noted that _________, 43, who worked from his Porter home as an oil and gas consultant, hadn’t touched anyone. Kimberly Ann Leo, the prosecutor, said the ankle monitor was required by law because ________ had “a sexual interest in children.”

“It’s not illegal to have a preference for children,” Hughes said. “It’s illegal to act on it.”

Hughes said the Walsh act and similar laws “take away all judgment or attempt to.”

“Have you read this book?” Hughes asked the prosecutor. “It’s not Mao’s ‘Little Red Book,’ it’s the Constitution of the United States. I have paper copies free if you would like to read it. But it talks about cruel and unusual punishment and reasonable bond. What utility is there to having him on an ankle monitor?”


I loved that last bit where the judge asked the prosecutor if she’d ever read the Constitution of the United States.

We need more judges like this.

Frigging love it Chris, I have yet to read this but it appears the judges are getting fed up with this BS and are beginning to take charge of their duties. That quote about have you read the constitution is beautiful. It appears the judge still believes in separation of powers as well as the difference between a violent contact offense as compared to a no contact non violent offense.

Isn’t this the exact same argument that should be made on why judges need to decide the need and duration, if any, that someone should be on a public registry?

I used to think Procedural Due Process was a useless fight due to Connecticut DPS V Doe in 2003 where SCOTUS unanimously said that Procedural Due Process was not violated because it was just putting people on a public list based on the crimes committed and since everyone that committed those crimes was put on it, any due process wasn’t needed because “the opportunity to prove a fact that is not material to the State’s statutory scheme” was determined.

However, the “list” is no longer just a static list with no consequences. Being on the list now automatically makes you ineligible for federal housing assistance, and have your passport marked if your case involved a child. It means you can get banned from numerous parks and schools and even neighborhoods across the country. It allows you to be banned from social media and other web sites. It automatically bans you from getting certain licenses and can result in termination from your job. That “list”, since there were no laws to protect any of these fundamental rights for those on it, violates your Procedural Due Process by automatically denying your rights without your say in court or any procedures to tailor it or appeal.

I think it’s time for a two pronged approach of claiming Procedural and Substantive violations of Due Process for being on a registry, and not allowing either to be dismissed without objection and appeal.

I agree with the judge – mandatory minimums and the like severely limit a judge’s ability to tailor a sentence or probation conditions to the individual based on circumstances. But for judges across the spectrum, it probably wouldn’t matter all that much if their discretion were returned. Regarding sex crime, most would impose the maximum in all cases anyway.

Would love your thoughts, please comment.x