Sixth Circuit Won?t Rehear ?Modern Day Scarlet Letter? Decision
By Robert Loblaw
Doe v. Bredesen, 06-6393 (6th Cir., March 31, 2008)
Last November, a divided panel of the Sixth Circuit upheld a Tennessee law that requires certain sex offenders to wear a prominent global positioning device so that law enforcement can monitor their whereabouts at all times. The GPS device is not exactly small: it is 6 inches by 3.25 inches by 1.75 inches, and it must be worn outside a person?s clothes or coat, making it a rather prominent badge of one?s sex offender status. An anonymous plaintiff sued, arguing among other things that the statute violates the Ex Post Facto Clause, since it applies to sex offenders like him who were convicted before the statute?s effective date.
A panel majority upheld the law over the “vigorous” dissent of Judge Keith. Keith argued that the statute, as applied to the plaintiff, is excessive punishment and a “modern day scarlet letter.” The plaintiff requested en banc rehearing, but his motion failed to draw the required number of votes from the Court.
The rehearing request did draw at least six votes, as five judges sign on to Judge Keith?s dissent from the denial of en banc rehearing. It is short and sweet, urging his colleague to “be careful, in our rush to condemn one of the most despicable crimes in our society, not to undermine the freedom and constitutional rights that make our nation great.”
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