MADISON, Wis. (CN) — The Badger State's sex offender laws faced scrutiny on Thursday, with a Seventh Circuit panel hearing back-to-back arguments against them in the state capital.
The first two cases of the day were brought by people listed on the Wisconsin sex offender registry. Plaintiffs in both cases argued — through the same attorney but for very different reasons — that state laws concerning sex offenders were unjust. (Though normally based in Chicago, the Seventh Circuit held their Thursday argument session in Madison as part of a student event hosted by the University of Wisconsin-Madison Law School.)
In the first case, a pair of convicted burglars protested that they were listed on the state sex offender registry despite never having been convicted of a sex crime.
The two men were involved with unrelated residential burglaries: one where the culprits held two children at gunpoint and another where they locked two children in an attic. Neither of their crimes had a sexual component — but under Wisconsin law, the sex offender label extends to anyone convicted of child abduction or false imprisonment of a minor.
"Neither [of the plaintiffs] has ever been charged with, let alone convicted of, an offense that involved sexual misconduct," the pair's attorney Adele Nicholas argued. "Nonetheless, the state of Wisconsin has branded them both as sex offenders, and for the rest of their lives they will be subject to the conditions that the state applies to people that have been convicted of sexual offenses."
A trio of men convicted of sex crimes brought the second case. They challenged the constitutionality of Wisconsin's strict housing regulations on so-called sexually violent persons who are eligible for supervised release.
Those regulations state that a sex offender on supervised release must reside in the state county where they lived at the time of their offense. It also bars them from living within 1,500 feet of parks, schools and other facilities. All three men struggled to find housing due to the restrictions, which they argued violates the Fourteenth Amendment.
Per court documents, one of those men had to stay in the Wisconsin-run Sand Ridge Secure Treatment Center for three years past when he was eligible for release. Another was released into homelessness after years of waiting for the state to find proper housing. The third is still detained at Sand Ridge, despite having already been eligible for release for close to four years when the trio filed their appellate brief last October.
"The state ... spends years trying in vain to identify housing in which the person can reside while on supervised release," Nicholas said. "Eventually — four years later, after the person has stayed in custody for an additional four years without any ability to get any new treatment or make any progress — everyone gives up, and the person is discharged."
Federal judges in eastern Wisconsin dismissed both cases in the summer of 2023. In the burglars' case, U.S. District Judge Joseph Stadtmueller, a Reagan appointee, decided the Wisconsin legislature acted rationally when it conflated child kidnappers with sex criminals — even without evidence that such offenders are more likely to commit a sexual offense against a minor.
"In light of recognized findings indicating that many non-family child abduction cases involve sexual assault and that child sex assault is a notoriously underreported crime, it was rational for the Wisconsin legislature ... to conclude that non-parent offenders who abduct or falsely imprison children should be subject to sex offender reporting and registry requirements," Stadtmueller wrote in his dismissal.
In the case of the so-called sexually violent persons struggling to find housing, U.S. District Judge Pamela Pepper, an Obama appointee, declined to touch the case at all.
Instead, she dismissed the case, citing an abstention doctrine that bars federal courts from interfering in ongoing constitutional challenges to certain state proceedings — including the Sand Ridge detainee's search for housing.
The appellate panel hearing the cases on Thursday also seemed unsympathetic. Composed of conservative judges Diane Sykes, Michael Scudder and Michael Brennan — a George W. Bush appointee and two Donald Trump appointees, respectively — the judges were notably more argumentative when questioning Nicholas compared to Wisconsin's attorneys.
In the burglars' case, the judges questioned whether they should step over the authority of Wisconsin lawmakers and courts which supported the relevant law. Sykes pointed to findings from congressional investigations that informed elements of the now-infamous 1994 Violent Crime Control and Law Enforcement Act, passed during the Clinton presidency and sometimes referred to as the "Clinton crime bill," and the 2006 Adam Walsh Child Protection and Safety Act. Those investigations found statistical correlations between child abduction and child molestation.
"The Congressional findings are highly relevant here to the rational basis for the law," Sykes said.
Nicholas countered this was a poor argument, as homelessness, unemployment, and being a man under the age of 40 also correlated with sexually assaulting children.
"The argument is an extremely broad one for what can be put on the registry if it just has some ... statistical correlation with sexual offending," she said.
When Nicholas argued for the trio of men who were unable to find housing, Sykes agreed that their situation was a bad policy outcome and a bad practical outcome.
Still, like Pepper, she said the court may have to abstain from the case, given ongoing state efforts to find housing for the Sand Ridge detainee. She also claimed that the detainee's attorney in that state-level action — not Nicholas — should be the one to raise any constitutional concerns.
"There is an argument of a constitutional nature to be raise here," Sykes said. "That's what you're arguing in this litigation. That's a claim that can be ... addressed to the state judge."
Nicholas once again disagreed, saying that a technicality of Wisconsin law prevented her client from raising his objections in state court.
"Unfortunately, your honor, that's not quite right," she said. "State courts have held that you are barred from challenging the constitutionality of these housing rules unless you raised them at the time of your initial commitment proceedings. Now [the Sand Ridge detainee] was committed 15 years ago."
The appellate panel took both cases under advisement but didn't say when they'd issue a ruling on either.
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