Jessica Masulli Reyes

The News Journal

The state can continue tracking with GPS the highest tier of sex offenders who are on probation, according to the Delaware Supreme Court.

The court's decision came just two days after the American Civil Liberties Union of Delaware argued that the practice was unconstitutional and was not actually keeping the public safer. The state, however, defended the monitoring, saying these sex offenders can have no normal expectation of privacy.

In 2007, the state Legislature passed a law that required all Tier 3 sex offenders, or those convicted of the most serious offenses including first-degree and second-degree rape, to wear an ankle bracket so that probation and parole officers can track their movements.

The Supreme Court then ruled in 2011 that the GPS monitoring was not punitive, and therefore, could be retroactively applied to sex offenders convicted before the law passed.

The ACLU filed a lawsuit in Chancery Court against former prison Commissioner Robert Coupe in May 2015 challenging the law on behalf of three convicted sex offenders who were required to wear the monitor even though their crimes occurred before 2007.

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The ACLU claimed the GPS monitors caused soreness and bruising around the ankle, hindered employment opportunities and was an invasion of privacy.

In August, Vice Chancellor Tamika Montgomery-Reeves tossed out the lawsuit against Coupe, saying she was bound by the 2011 court decision. The ACLU appealed to the Supreme Court.

Richard H. Morse, an ACLU attorney, argued to the court last week that the monitoring does not increase public safety because not all Tier 3 sex offenders are considered a high risk of re-offense. Instead, the monitoring should be used on a case-by-case basis for those the court or prison deems a high risk, he said.

Deputy Attorney General Joseph C. Handlon, however, argued that the law is constitutional and that Tier 3 sex offenders can have no legitimate expectation of privacy.

Chief Justice Leo E. Strine Jr. questioned during the hearing how the monitoring was not an additional form of punishment, especially when offenders must pay $4.65 per day for the device and can incur a debt if they do not pay.

The court, however, did not stray from its prior opinion on the GPS monitoring program.

Morse was unavailable for comment Wednesday. A spokesman for the Department of Justice also declined comment.

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.