Predator Plan

This is a partial transcript of "The Big Story With John Gibson," August 17, 2005, that has been edited for clarity.

JOHN GIBSON, HOST: Many of us are outraged over these child molesters and killers who get out of prison only to strike again. Now, California Governor Arnold Schwarzenegger (search) wants to use those monitoring bracelets on certain sex offenders for the rest of their lives. Can the state of California do that? Let's ask FOX News senior judicial analyst, Judge Andrew Napolitano.

So Arnold's got a cure for this. I mean, this Joseph Duncan (search) guy would be going around with an ankle bracelet on. The killer of Jessica Lunsford (search) would have had one on.

JUDGE ANDREW NAPOLITANO, FNC SENIOR JUDICIAL ANALYST: Right.

GIBSON: Can they do that?

NAPOLITANO: They can do it, but it will take a long time before it takes effect, because it cannot be applied retroactively. So unless the California legislature enacts a new statute Thursday that takes effect on Friday, the crime would have to be committed after Friday. The person would have to be prosecuted. They'd have to be convicted. They'd have to finish their jail term and then the bracelet would go on.

So this lifetime monitoring, which would be expensive, would take awhile before it came into effect. It wouldn't apply to anybody currently in the system.

GIBSON: Well, why not? I mean, when somebody serves their sentence, and they're going out on parole, the conditions of parole can be set right then. So somebody's in the slammer now, with a date coming up where they're going to be up for parole. Let's say they're granted parole and they go out and, you know, have to meet those conditions. Why not now?

NAPOLITANO: I think you can argue that the conditions of parole are not punishment.

GIBSON: Right.

NAPOLITANO: Rather, they are to help the government know where you are. If the court finds them to be punishment, then the punishment, wearing the bracelet for the rest of your life, must be on the books before you commit the crime, because the Constitution prohibits changing the punishment after the crime has been committed.

But if the courts find that it's not punishment, it's just an administrative feature that makes it easier for the government to keep track of people...

GIBSON: Then they might do it.

NAPOLITANO: ... then they could impose it on people who have already committed the crime.

GIBSON: OK. Now, so in order for somebody who is a sex offender to be fitted with one of these bracelets and it's on forever, that has to be part of the law of punishment. You get 10 years, plus bracelet.

NAPOLITANO: Correct. And that, of course, is what Governor Schwarzenegger wants to do.

One would think a law like that would be embraced with open arms. Democrats in California are not fond of it. They're saying the law is too complex, too long, too expensive for them to consider right now. The governor has threatened to put it on the ballot, where it will probably pass overwhelmingly.

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