Never having been a fan of ankle bracelets to begin with, their being a vulgar use of jewelry only slightly worse than toe rings, the aesthetics alone would be offensive. But for some convicted of sex offenses in Missouri, the state has decided to compel their new fashion statement.

The devices send out alerts if an offender lingers near a school or a park. Cut the wide black strap and the waterproof device will tell on them.

It beeps to prompt a verbal command from state officials, say to make a payment or report to probation officers immediately.

The retroactive requirements are part of a revised state criminal code that went into effect Jan. 1. Offenders either found guilty or who pleaded guilty to 13 various sex crimes in question based on an act committed on or after Aug. 28, 2006, are subject to the added security measures.

To provide a little context, let’s say a person has completed his sentence, prison as well as post-incarceration supervision. He’s moved on with his life, somehow managed to get a decent job, perhaps a new family, and bought a house with a picket fence in a lovely suburban neighborhood. He’s learned from his mistakes and is dedicated to being a completely law-abiding citizen.

Then boom, he’s obliged to put on the ankle bracelet of shame. And wear it for the rest of his life. It wasn’t part of the deal when he pleaded guilty. It wasn’t even part of the deal during the pendancy of his sentence. Not until after everything was finished, his dues to society paid in full, did somebody come up with this idea. And he’s doomed to wear it or face a class D felony?

A March 29 “Dear Sir/Madam” letter from chief state supervisor Julie Kempker lays out the law, including threat of a class D felony if conditions are violated.

“We understand that this change may be unexpected,” Kempker said in the letter. “Rather than being detracted by the lifetime supervision requirements, you are encouraged to remain focused on your daily supervision responsibilities and to do those things that improve your life and positively impact your family and the community in which you live.”

Despite Julie Kempker’s future potential as a motivational speaker for kindergarteners, this is a fundamental imposition of lifetime control and punishment that goes absurdly beyond any sentence the law imposed. What about the person who, after completing their sentence, moved out of state? What if the Missouri lege decides next year to require those convicted of sex offenses to wear gold stars on their clothing? What will they come up with ten years from now? Are there no limits to the punishment a state can impose after the sentence imposed is completed?

“I don’t think a lawyer can make a straight-faced argument that it’s constitutional,” said Clayton-based attorney Matt Fry, who is suing the state on behalf of D.G. and has many other plaintiffs in the wings.

But judges, outside of the 6th Circuit, haven’t shown any difficulty in holding these ex post facto measures constitutional. The rule is that these are regulatory requirements, not punishment which would implicate the ex post facto clause of the Constitution. Essentially, they just give it a different name and it magically makes the imposition of lifetime punishment, and any future punishments the legislature decides to impose, totally not at all punishment. And if it’s not punishment, then it’s totally constitutional.

Obviously, lawyers can and do make straight-faced arguments that it’s constitutional, not because it is but because legal fictions are the best kind of fictions, for the state.

To see this game in action, we need only take a quick stroll down memory lane to Rainer v. Georgia.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, “are regulatory, not punitive, in nature.” “Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is ‘sexual’ in nature before being required to register,” Melton wrote….

See what Judge Melton did there?

No consequence?  It’s likely of a great deal of consequence to anyone who’s required to comply with the SORA requirements, not to mention be held out to the world, and more importantly his neighbors, as a sex offender when he isn’t.

Once again, legal fiction overtakes reality.  By calling sex offender registration regulatory rather than punitive, the court was able to sidestep the issue and pretend that something which is patently punitive is benignly regulatory.  It’s a miracle, like calling a forfeiture civil and thus removing all the rights that go along with criminal sanctions.

Ex post facto laws–impairment of contracts–irrevocable privileges.

Section 13. That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.

Source: Const. of 1875, Art II, § 15.

Will this fundamentally alter the constitutional analysis such that the regulatory excuse won’t fly? It seems there’s a good chance it will.

Update 2: Cole County Circuit Court Judge Daniel Green has issued a preliminary injunction, and the state has agreed to remove the GPS devices from anyone whose case was concluded prior to the passage of the law.