Protecting children versus protecting privacy

February 2, 2016 By Noah Feldman, Bloomberg View

A child walking into kindergarten. (Credit: iStock)

Can Wisconsin make a sex offender who’s completed his sentence wear a GPS monitor on his ankle for the rest of his life? Reversing a lower court judgment last week, the U.S. Court of Appeals for the 7th Circuit said the answer is yes. The opinion, by the influential Judge Richard Posner, presents itself as an exercise in cost-benefit analysis and legal common sense. But the decision is wrong nonetheless, because the right to privacy can’t be balanced away by statistics.

In the 1990s, Michael Belleau was convicted two separate times for sexually assaulting children. When his term for the second conviction ended in 2005, he wasn’t released. Instead, the state had him civilly committed as a danger to others because of a propensity to abuse children. (This practice may seem like an illegal extension of a defendant’s criminal sentence, but the U.S. Supreme Court has ruled that post- sentence civil regulation of sex offenders is constitutional, because it’s for prevention and not punishment.)

In 2010, Belleau, then 66, was released from his civil committal because a psychologist determined he was no longer more likely than not to commit a sex offense. A Wisconsin state law, which went into effect two year earlier, said that sex offenders released from prison or civil committal would have to wear GPS anklets for the rest of their lives.

Belleau sued the state, claiming that the rule violated his Fourth Amendment privacy rights and was also an ex post facto law, because it was enacted after his criminal conviction. The lower federal court held that the law was unconstitutional as applied to Belleau on both grounds.

The lower court’s holding on retroactivity was based on the theory that it was Belleau’s conviction, not his civil committal, that triggered the anklet. The 7th Circuit rejected that summarily, saying that it was the release from civil committal that triggered the monitoring — and the ex post facto clause applies only to criminal sanctions.

More important was the district court’s privacy holding. The court first recognized that the Supreme Court considers a GPS device on a car to be a search. Then the district court said that there was no probable cause for a search, given that the state released Belleau because it was no longer probable that would commit a further crime. It went on to hold that there were no “special needs” here to overcome the warrant requirement, given that Belleau wasn’t a parolee and that the GPS requirement was permanent.

Posner rejected this analysis almost entirely, and in fact rather cavalierly. He read Supreme Court precedent to say that “monitoring of sex offenders is permitted if reasonable.” But the only case saying so involved a parolee, not someone who’d already served his sentence.

Posner, the intellectual father of the economic analysis of law, then turned to a homemade cost-benefit analysis of the anklet, complete with statistics. He quoted the psychologist who had testified in favor of Belleau’s release as saying that Belleau was 16 percent likely to commit a sex crime in 2010, and would be 8 percent likely by 2015. Posner argued then that this estimate must be low, because it’s based on sex-crime reporting, and sex crimes are underreported.

In an uncharacteristic appeal to public prejudice, Posner then said that “readers of this opinion who are parents of young children should ask themselves whether they should worry that there are people in their community who have ’only’ a 16 percent or an 8 percent probability of molesting young children.”

He went on to say that “even if we credit the 8 and 16 percent figures the plaintiff can’t be thought just a harmless old guy.” After all, even if the now almost 73-year-old Belleau is “not physically capable of the common forms of male sexual activity, older men can still molest and grope young children.”

This reasoning was unworthy of Posner. In his view, the inconvenience of wearing a GPS anklet was clearly outweighed by the costs of the 8 percent to 16 percent chance of recidivism.

But this balancing isn’t the right test for privacy under the Fourth Amendment, either legally or logically.

The Constitution doesn’t say that a person’s privacy rights may be outweighed by a psychologist’s assertion that there is some less than probable statistical risk of becoming a repeat offender.

If Posner were right, the government wouldn’t need to show probable cause and get a warrant when it wants to search a suspect. It could just call in a psychologist to provide a profile. If people with the suspect’s profile were 8 percent to 16 percent likely to commit a crime, it could attach a GPS to those people — forever. And prior conviction can’t be a relevant factor for Posner in minimizing Belleau’s rights, because the judge insisted the case was only about civil committal and prevention, not punishment.

Posner was wrong to attribute so little weight to Belleau’s interest in not having his location known 24-7 to the state. But Posner was more wrong to insist that a simple cost-benefit analysis could weigh those interests against the fear of child molestation. We naturally want to create a 0 percent risk of that terrible crime. Measured in a balance, preventing child abuse would always beat liberty and privacy. That’s why the law requires that harm be more likely than not before privacy or liberty are infringed.

It’s easy to protect children by disregarding the rights of convicted molesters. It’s much harder to draw constitutional lines in a careful, principled way that doesn’t compromise privacy for the rest of us by setting bad precedent. Here’s hoping the 7th Circuit takes the case en banc, or that the Supreme Court overturns it.

— Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.