The Georgia Supreme Court is located in the State Judicial Building in downtown Atlanta. (photo: Supreme Court of Georgia)

Sex offender argues mandatory ankle monitors are unconstitutional

As opposing attorneys argued the constitutionality of the Sex Offender Registry Review Board on Monday, several Georgia Supreme Court justices kept focusing on an aspect of the law that applies to the most dangerous predators: they must wear an ankle monitor for life but face no punishment if they don’t.

“So you’re telling us all the people subject to monitoring could just stop and nothing will happen?” Justice David Nahmias asked Monday.

“The point is to prevent future recidivism and it’s not punitive,” answered Rebecca Dobras, the assistant attorney general who argued in favor of the law. “What it’s supposed to do is allow the offender to know he’s being monitored.”

Nahmias replied, “I don’t understand the point of having a regulation you don’t have to comply with. What a useless regulation if that’s what you’re saying it is.”

The justices were hearing a challenge to Georgia’s version of the federal Adam Walsh Child Protection and Safety Act, named for the 6-year-old Florida boy who was kidnapped from a shopping mall and murdered. The 2006 law, also known as the Sex Offender Registration and Notification Act, required states to:

     
  • Publish a registry of sex offenders that the public can access.
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  • Place each offender into one of three classes (according to the seriousness of the crime) on the registry.
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  • Keep addresses for the offenders so the public knows where they are.
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The Sex Offender Registry Review Board is responsible for making risk assessments of sex offenders on probation and those about to be released from prison. “Level One” offenders pose little danger to the public. “Level Two” offenders have an increased likelihood they will re-offend. Level three offenders are labeled “sexually dangerous predators. For the rest of their lives, they must wear an ankle monitor that alerts the local sheriff if the device is tampered with or the signal is lost.

“It’s supposed to allow officers to know if they have been within a crime scene,” Dobras said.

But an attorney for a convicted sex offender argued that requiring ankle monitors was nothing more than a way to extend punishment beyond the end of a sentence. Attorney Mark Yurachek also told the justices that his client, Kenneth Berzett, has to commit two hours a day to charging the monitor on his leg; has to call the local sheriff’s office when he enters a building with a metal roof and the signal is lost; and has to pay for the ankle monitor.

“If a statute requires me to pay $1 that is mine, it’s still unconstitutional,” Justice Harold Melton said.

“This is something caused by his own misconduct,” Dobras said.

She told the justices that Georgia law does not provide for waiving the monitoring fee for low-income offenders. Dobras didn’t know how much offenders were charged but described the cost as a " minor thing.”

Nahmias said asking for $3 or $4 a day — as much as $120 a month — was not “a minor thing” for some people.

“It looks like now we’ve gone to a system where we just want to collect some money” but offer no counseling that might help a sex offender, Justice Robert Benham said

The case went to the Georgia Supreme Court after the state appealed a Fulton County Superior Court ruling that the sex-offender registry law was unconstitutional.

Berzettthe plaintiff in the Fulton County suit, pleaded guilty in 2006 to child molestation for inappropriately touching a teenage girl. When he was released from prison he went to a Washington County rehabilitation center and farm run by a faith-based group, Mighty Man Ministries, and he is now the director there.

Since he is classified as Level Three, the most serious, Berzett is required to wear an ankle monitor for the rest of his life. He had to call the Columbia County deputy assigned to him when the battery died or he was out of range. Sometimes the monitor would get snagged on farm equipment while he worked.

The monitor was attached to his left ankle for three years after he had served his sentence of five years on probation.

But several weeks ago Berzett moved to another county and law enforcement there declined to attach a new monitor. The sheriff’s office told him it didn’t want to burden deputies with having to check each time there was an alert that the signal had been lost, Berzett said.

Berzett, who attended the Supreme Court argument, pulled up his pant leg to show he had no monitor.

He said he never considered not having the monitor placed on his ankle.

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