April 18, 2017 – The U.S. Court of Appeals for the Seventh Circuit has rejected claims that a deterrence program that increased surveillance on repeat violent offenders was discriminatory and violated the constitutional rights of a person selected to participate.

Eric Alston was one of 10 individuals selected to participate in a deterrence program created by the Special Investigations Unit within the City of Madison Police Department.

The program aimed to combat the disproportionate percentage of crime committed by repeat violent offenders in Madison, as well as the increased resources necessary to police repeat violent offenders in proportion to others within the community.

The deterrence program would increase surveillance of select individuals to deter them from committing more crimes, and provide more resources to help them stop offending. Program participants would have knowledge of the increased surveillance.

At the same time, the program urged probation revocation hearing examiners to revoke the probation of individuals who violated probation terms, and recommended the maximum penalties for those program participants who reoffended with violent crimes.

The program targeted the most violent offenders released from prison within the previous year. Detectives made the final selections based on a number of factors, including criminal history, the likelihood of reoffending, and the resources required.

Ultimately, Alston’s probation officer revoked his probation, in part because the Special Investigations Unit had urged revocation of any program individual who violated the terms of probation when seeking support and partnerships for the deterrence program.

Alston filed a federal lawsuit, claiming the program violated his equal protection and due process rights because individuals were selected for inclusion on the basis of race.

He noted that 64 people were in the program by the time of oral argument, and 86 percent were black, while only 4.5 percent of the city’s population is African-American.

But in Alston v. City of Madison, et al., No. 16-1034 (April 10, 2017), a three-judge panel for the Seventh Circuit Court of Appeals ruled that the deterrence program did not violate Alston’s constitutional rights, affirming a district court decision.

Equal Protection

On his equal protection claim, the panel noted that Alston had to show the program was motivated by a discriminatory purpose and had a discriminatory effect, and he did not.

“To prove discriminatory effect, Alston must show that he was a member of a protected class and that he was treated differently from a similarly situated member of an unprotected class,” wrote Judge Michael Kanne for the three-judge panel.

“He may do so by statistical analysis or by identifying a particular similarly situated member of the unprotected class who was treated differently from him.”

But the panel did not find persuasive the statistics that African-Americans account for 37.6 percent of arrests in Madison, despite accounting for only 4.5 percent of the population, and account for 86 percent of the 64 people in the deterrence program.

“Alston’s statistics do not address whether black, repeat violent offenders were treated different from white, repeat violent offenders and thus are not evidence of discriminatory effect,” wrote Judge Kanne, noting defendants admit those stats are regrettable.

Alston was closer in arguing that he was treated differently than whites because police looked at gang affiliation in selecting program participants. Alston argued gang affiliation was a proxy for race. But the panel ultimately rejected that argument too.

“This argument addresses the appropriate concern because it compares similarly situated people (repeat violent offenders) of different classes (black versus white). And the candidates with allegedly black gangs were chosen for the program while the one candidate identified with an allegedly white gang was not,” Kanne wrote.

“But the argument fails for another reason: Alston never made the racial-proxy argument at the district court,” wrote Kanne, noting the district court granted summary judgment and appellate courts cannot consider factual arguments not previously raised.

But even if Alston was successful in showing discriminatory effect, he could not show discriminatory purpose, the panel noted.

Alston again presented statistics showing disparate impact but the panel noted that disparate impact alone “is almost always insufficient to prove discriminatory purpose.”

“There is no evidence about the number of black, repeat violent offenders who qualified for the program but were not chosen,” Kanne wrote. “Nor is there any evidence about the number of white, repeat violent offenders who could have been chosen."

“Absent more specific statistics, we cannot say that mere disparate impact is sufficient to prove discriminatory purpose.” Comments from the Madison police chief and others suggested the program was designed to benefit minority populations, the panel noted.

Due Process

Alston argued the program deprived him of liberty without due process because he was stigmatized through inclusion and subjected to increased surveillance and reporting requirements, as well as a probation revocation examiner who was biased.

It is true, the panel noted, that Alston was stigmatized as a repeat violent offender through inclusion in the deterrence program, created for the worst offenders. But the panel noted that Alston was required to show more than harm to reputation.

“Alston can get no further because he has not shown that being selected for the program altered a previously recognized legal status or right,” Kanne wrote.

The panel also noted that a probationer’s liberty interests are necessarily limited, and increased surveillance and reporting requirements did not alter a preexisting right.

His bias argument failed, the panel noted, because ruling the examiner was biased would imply his prior conviction was invalid, and he lost a prior challenge to the validity of his prior conviction on collateral review, the only way to challenge convictions.

Finally, the panel ruled that Alston’s probation officer had reasonable suspicion to believe Alston violated his probation before issuing a request that he be apprehended.