Essential Liberties, Temporary Security: Citizen, Incriminate Thyself

I have several problems with this idea. Let me begin by acknowledging that convicted felons, by law, already lose certain rights including the right to vote, the right to bear arms and access to various benefits provided by the government. In society, those convicted of a felony are not protected against discrimination. They can be denied a job, housing, private insurance, credit and various other basics most of us take for granted on the sole basis of their existing felony conviction. In some cases, such as known sex offenders, they are required to register on lists with local police departments that are open to the public and have been used by other citizens to monitor, and sometimes persecute, any living in the neighborhood.

Both legally and socially, society has already placed a severe post detention burden on felons. In some cases, it comes dangerously close to violating the clause in Article I of the Constitution prohibiting "bills of attainder". This is barely circumvented by not having the state or national government strip the felon of all his rights, but provides open information in background checks or "offender lists" that allows society itself to inflict "attainder" without judicial or legislative action that would violate the constitution.

One of the points of our justice system and of our nation was the idea that criminals would be tried with due process and, if convicted, sentenced to serve time or pay fines commensurate with the crime. Once that sentence was completed, the citizen was supposed to be considered to have "paid their debt to society". From my limited understanding, having recognized that a large portion of convicted criminals are repeat offenders, we are attempting to balance out the security of society and improving law enforcement efforts with staying within our constitutional limitations.

We have placed the burden on the private citizenry to guard themselves, their property, their employees and others. Employers who knowingly hire a convicted felon who later commits a crime against other employees, could be held liable and sued for not providing a safe work environment. Property insurance can be denied to the employer, can cost more and payments even denied for stolen or damaged property. These are but a few of the burdens we place on other citizens to avoid contact or in anyway enabling criminals.

It certainly seems that society has decided that crime is much more harmful than even mandatory sentencing implies. At the same time, we are loath to violate the principle of the 8th Amendment "cruel and unusual punishment" (that phrase in relation to certain punishments, such as the death penalty, remains in question as well as extremely long sentences for certain "lesser" crimes). We look for ways to balance those ideas. We see such technology as a way to accomplish this balance. The question must remain whether we stay true to the principles of liberty or whether we fall prey to the tendencies of long established and powerful governments that seek immediate relief to current problems with acts we once claimed as oppressive and tyrannical when it was turned against ordinary citizens for "crimes against the crown".

From this perspective, the insertion of a GPS tracker for released felons that have served their time, ordered by the state or national government, seems to directly violate the constitutional enjoinder against "bills of attainder", "tainting" the felon for life for a crime that supposedly has already been prosecuted and paid for. It may also violate the 5th Amendment which prohibits "double jeopardy" or second prosecution of the same crime. That is without even discussing the question of redemption, arguably a mid 19th century extension or invention of society, crime and punishment.

My second issue revolves around the invasion of privacy (amendment iv). Understanding that even convicted felons still have most of their rights when they are released, the idea that government can order the implantation of a device into a person's body, seems a direct violation. A woman has the right to privacy and to choose how to control her body, including abortions, which the government cannot outlaw (Roe v. Wade) on that premise, but convicted felons lose that right and protection against the state's invasion? Because they are ex-felons?

Then there is the question of whether the state should be tracking the day to day, minute by minute position, condition or activities of ANY citizen. Keeping in mind we're not talking about parolees or probationers, but free citizens who have completed their entire sentence. (9th, 10th and 14th Amendments)

Third issue revolves around the title of this post and the fifth amendment:

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

At its very core, the idea that a free citizen would be implanted with a GPS tracker by order of the state that would know at any time where they were and record that information, seems to explicitly violate the fifth amendment prohibition against self incrimination. No one, ex-convict nor average Joe never been arrested citizen, can be forced to do so in any method other than their own informed decision or their own ignorance.

Further, due process of the law requires the state to PROVE guilt, not the charged to PROVE innocence. That is often forgotten in the rush to lend more capabilities to fighting off crime in society. It requires more than the mere presence of any person, even an ex-con, at the scene of a crime. It requires physical evidence and/or credible eye witnesses to give "testimony" against the accused with an equal right to confront the accuser and test the evidence.

While technology such as video from cameras, GPS signals from phones and many other items have been used to convict people of crimes, they are passive and often require a warrant to obtain information if they belong to the charged person, avoiding unwarranted "search and seizures". GPS implants can hardly be qualified as "passive" if it is constantly and actively being recorded and reviewed against known crimes. For the purpose of narrowing suspects when it may lead to wrongful prosecution of an innocent person and the ability of the guilty to go free. It would be extremely foolish to believe that this tool would not result in investigations that focus in the wrong direction or are purposefully misled. It occurs today, even without the advent of GPS trackers.

My final rejection is based on the admonishments of our founders and framers to be careful of giving powers to the state that diminishes the rights of a minority group based on the passions or demands of a majority. Even for our so called "security". Once that has occurred, the extension of that power over other individuals or groups will begin and can even extend to portions of "the majority". I cannot state often enough that, even in a representative democracy, the constitutional guarantees can be undermined by a majority. Its purposes subverted allegedly "for the good of society", its powers used for nefarious means by groups or individuals in power and its powers, once "discovered", extended as far as the government can, over the entire nation if possible, even against resistance of the citizens.

First we say that sex offenders must register on a list so the police and citizens know who they are. Then, in California, they propose making people convicted of DUIs buy a red (scarlet) license plate plainly stating DUI conviction even if they had already paid fines, lost privileges and spent time in jail. Now we discuss implanting GPS trackers in released felons. Just in case. In the name of security, how many people will we feel the need to encode or mark to feel secure? Everyone?

Does anyone actually read the Declaration, the Constitution, the Federalist Papers or even American Literature like The Scarlet Letter? There are very specific reasons why we reject persecution even on behalf of those who have violated the morals and legal tenets of society. That is to protect the rights of every citizen.

Let me repeat that: to protect the rights of EVERY citizen. When we talk about the extension of power by the government, it's not necessary that the government suddenly be taken over by an evil cabal bent on totalitarian rule. Nor any group to have "nefarious plans". In a Representative Democracy, rights are more likely to disappear through the slow incremental demands of society itself.

In the last 230 years, "we the people" have expected the government to do more and provide more for our citizens. To do so, we have expanded the scope and power of government. Almost always "for the good of society". Whether that is health care for the poor and elderly, assistance for the poor or for security against crime and even war. With each step, with each power, government intrusions and restrictions grow.

This does not always end with positive results. Often, we are required to work twice as hard, if not tirelessly, to beat back unnecessary violations of privacy and rights due to unintended consequences. Or, even the purposeful seeking of legal language to justify that extension of powers in order to perform the functions that the government and its agencies believe they have been mandated to do by "the people".

Its our responsibility to safe guard our freedom from both the unintended consequences as well as the purposeful extensions, whether for nefarious means or "the good of society". If we can protect freedom and rights for the least of us, for the worst of us, then we will be able to safe guard it for the best. To that end, we must consider every extension of power, every law cautiously and with the admonishment to safe guard our rights, our essential liberties, as paramount to our existence. Even to the point of giving liberty more weight in the balance of justice's scale.

Of course, we cannot abdicate our responsibilities to insure the safety of innocent citizens against the depredations of predators, real evil or the general vices of their fellow citizens. We must balance that safety out with the needs of justice, the protection of rights in a free nation, the demands of society for vengeance and our pocket books. Yes, because in this whole equation, we are not only talking about giving up rights for physical security, but because we want to inflict longer sentences and do not want to pay for it out of our pockets.

Equally, we should not forget that the most powerful tool that society has against crime and vice is society's rejection. When we accept crime and vice as the norm, when we provide crime and criminals excuses based on some other failing of society, out of some confused concept of compassion, out of fear or simply out of complacency, we give it legitimacy.

If we feel that a crime is so offensive, the criminal and the crime irredeemable, then we should sentence the offender accordingly and not play fast and loose with rights that belong to everyone. We should be prepared to pay for our security out of our pockets and leave our rights alone.

It's cheaper in the long run.