Future Dangerousness

The tricky sex offender case that could trip up one of the judges on the short list to replace Souter.

Judge Diane Wood

Barack Obama has said he wants a Supreme Court nominee who will think hard about how his or her rulings will affect people’s daily lives. “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation,”Obama said Friday.

When he taught constitutional law at the University of Chicago, Obama also worried that “democracy could be dangerous,” and “that the majority could be ‘unempathetic’—that’s a word Barack has used about the concerns of outsiders and minorities,” as Geoffrey Stone, former dean of Chicago’s law school, told Jodi Kantor in the New York Times on Sunday.

Sometimes, these values can be in tension with one another. Protecting the rights of a minority can mean exposing the majority to potential risk. That tension is very much present in a 2004 opinion in which Judge Diane Wood participated, a case called Doe v. City of Lafayette. Wood, a 58-year-old Clinton appointee, is at the top of just about everyone’s short list because of her reputation as being supersmart and her ability to go toe-to-toe with Judges Richard Posner and Frank Easterbrook, two of the other big intellects of her court, the U.S. Court of Appeals for the 7th Circuit. The opinion Wood joined in Doe v. Lafayette was written by Judge Ann Williams, who is getting some play for the Supreme Court, too. (Reagan put Williams on the district court, and Clinton elevated her to the appeals court.)

Doe is a tough one: It’s about a convicted sex offender who cruised a park in Lafayette, Ind., admitting to “having urges” about a group of kids he saw there, although he didn’t actually molest them. The city banned him from its parks. The district court upheld the ban based on his criminal record, his own deposition, and his psychologist’s testimony that while she thought he’d learned to control himself, she couldn’t guarantee he wouldn’t offend again. The ruling Wood joined, and Williams wrote, defends the rights of what may be the most despised minority of all: pedophiles. But John Doe’s thoughts took him right to the brink of harming real kids. Williams and Wood framed the case as being about Doe’s freedom of thought and his right to some procedural protection. The other judges, who eventually overturned their ruling, framed it as being about his dangerousness. Which was it?

John Doe, as the court calls him, had a long history of sex offenses, most involving child victims. In 1978 and 1979, he forcibly had oral sex with a 10-year-old in the locker room of a school and with a 12-year-old in a school parking lot. He was arrested for masturbating in view of children in 1986; for peeping into the windows of an apartment in 1988; and for beckoning three boys to come into an alley, asking whether they wanted oral sex, and then unzipping his pants in front of them in 1990. He was on house arrest from 1992-96 and on probation until January 2000. He had no convictions on his record after 1991.

In January 2000, Doe’s probation officer got a call reporting that Doe “had been ‘cruising’ parks and watching young children.” Doe, in a deposition, explained that he parked his car across from Murdock Park and saw a group of kids on the baseball diamond. Doe says “I stood there and watched them for a while, probably 15 minutes, maybe a half-hour, I said to myself: I’ve got to get out of here before I do something, I left.”

Pause there for a moment: Doe didn’t hurt the kids or even approach them. He turned around and got out of the park. Then he paged his psychologist and told her he was upset.

In other words, this is a man with a terrible mental illness who desperately tried to control himself—and who, in this instance, succeeded. But the rest of his deposition reveals just how close to failing he came. Asked why he went to Murdock Park that evening, Doe answers: “I guess I was, for whatever reason, I was in the mood of cruising.” He admitted that he was looking for kids and that he was having urges. In response to a question about what he was thinking when he walked into the park, he answered:

When I saw the three, the four kids there, my thoughts were thoughts I had before when I see children, possibly expose myself to them, I thought about the possibility of, you know, having some kind of sexual contact with the kids, but I know with four kids there, that’s pretty difficult to do. It’s a wide open area. Those thoughts were there, but they, you know, weren’t realistic at the time. They were just thoughts.

When John Doe’s probation officer got the anonymous tip about the cruising, he took it to the police chief and other city officials, and they decided to ban Doe from Lafayette’s parks and schools. The ban had no end date, and it covered a sprawling territory, because Lafayette’s park system includes large parks, small neighborhood ones, a golf course, a baseball stadium, and several pools.

Doe didn’t question the city’s decision to ban him from the schools. But he wanted to go to the parks to play softball, go on a company outing, and (this one is harder) watch the teen baseball league play games. So Doe challenged the ban on two grounds: Under the First Amendment, on the premise that he was being punished for his thoughts. And under the 14th Amendment, arguing the ban took away his right “to enjoy and wander through a public park.”

The district judge who got the case ruled in favor of the city, based on Lafayette’s interest in protecting the health and safety of its residents. A three-judge panel of the 7th Circuit heard the case on appeal. In a 2-1 split, Wood and Williams reversed the district court, finding that the decision to ban Doe from the public parks violated his First Amendment rights, while Judge Kenneth Ripple dissented. Williams wrote the majority opinion. Eleven judges of the 7th Circuit then reheard the case. (This second round is called en banc.) In an 8-3 ruling, the en banc majority reversed Williams’ initial ruling. In this second round, Wood and Williams dissented, along with Judge Ilana Rovner. Ripple’s dissent became the majority opinion, and Posner and Easterbrook joined it, along with five other judges.

Ripple’s majority opinion for the en banc court frames the city’s ban as punishing Doe not merely for his thoughts, but for “thought plus conduct.” Ripple writes:

The inescapable reality is that Mr. Doe did not simply entertain thoughts; he brought himself to the brink of committing child molestation. He had sexual urges directed toward children, and he took dangerous steps toward gratifying his urges by going to a place where he was likely to find children in a vulnerable situation.To characterize the ban as directed at ‘pure thought’ would require us to close our eyes to Mr. Doe’s actions. … We cannot ignore, nor can we say the law somehow commands the City to ignore, Mr. Doe’s pedophilia and the history of his battle with that affliction.

Williams’ dissent, on the other hand, points out that this is “a rare case where thoughts, as distinct from deeds, become publicly known.” Williams notes: “It is clear on this record, that absent Doe’s thoughts (and arguably his status as a pedophile …) the City would be uninterested in Doe’s decision to go to the park that fateful day.” We don’t normally restrict people’s liberties based on their thoughts, Williams argued, and we shouldn’t; this is “a cornerstone of the criminal justice system,” and it’s a crucial limit on government power.

Williams also points out that the city’s ban could actually disserve its goal of keeping children safer by deterring other sex offenders from seeking therapy. And she offers this analogy: “By way of comparison, courts would not sanction criminal punishment of an individual with a criminal history of bank robbery (a crime, like child molestation, with a high rate of recidivism …) simply because she or he stood in the parking lot of a bank and thought about robbing it.”

But in other settings, the law does allow for punishment based on future dangerousness. In 2000 and 2002, the Supreme Court twice upheld a Kansas law that provides for the civil commitment of a convicted sex offender, after he has finished serving his criminal sentence, if a court finds that he “cannot control his dangerous behavior.” The majority opinion in the Doe case relied on those Supreme Court rulings. When I called Yale law professor Robert Post, a First Amendment scholar, he brought up the Kansas law, too. “If you can be kept in jail because of future dangerousness, why couldn’t you be kept out of a park?” Post said. “It’s a mischaracterization to say this has anything to do with this man’s thoughts. The case should be decided on the basis of his dangerousness.”

Geoffrey Stone, also a First Amendment expert, says the problem with the case is that Doe didn’t frame his appeal correctly. He failed to argue that he’d been banned from the parks without due process—a hearing or a chance to appeal. And so Williams and Wood had to “meld the due process and First Amendment arguments together.” Stone cautioned me not to make too much of the case. “I suppose it’s of interest because people will say Judge Wood doesn’t care about the dangers pedophiles pose to society. But that is a wild misreading. The dissent is really about the need for appropriate procedures and limitations before the city imposes a ban like this. And that’s a perfectly reasonable position.”

It’s striking that Wood and Williams weren’t afraid to rule in favor of a sex offender who had made his struggle for self-control clear. That doesn’t surprise people who know Wood. “You couldn’t find a more principled person,” said my friend Aleeza Strubel, an employment-discrimination lawyer who clerked for Wood. “She didn’t make decisions based on what the reaction would be.”

Wood has taken other bold stances: The right is already after her for her 2001 ruling in NOW v. Scheidler, which allowed a lower-court judge to prevent anti-abortion protesters, nationwide, from blockading clinics. Wood’s ruling made novel use of federal anti-racketeering law, and the Supreme Court overturned her in 2003. You could argue that this is precisely the sort of flat-out liberal, unafraid jurist the court now needs. Or you could argue that this is one fight the Obama administration could do without. Either way, the White House should take a look at Doe v. City of Lafayette. If it hasn’t already.