Looking for the Next Maryland v. King

By Michelle Meyer 

In my last post on Maryland v. King, I suggested that both proponents and opponents of King should find the philosophical case for a universal DNA database stronger than they might otherwise have thought. Obviously, moving in that direction — or even including mere suspects in a database — would raise legal questions that merit (and, one hopes, receive) further consideration by the Supreme Court. But how likely is it that the Court will have another opportunity to consider the constitutionality of a statute that continues to draw the line at arrestees?

The Supreme Court’s decision in King was necessarily limited to the fact pattern presented by Maryland’s particular statute authorizing the collection of DNA from arrestees. For instance, the Court repeatedly noted that the Maryland statute at issue limited DNA collection from arrestees to those who had been “charged” (not, in fact, merely arrested) with “serious crimes,” defined as crimes of violence or burglary, or attempts to commit these crimes. (Although Justice Scalia expressed skepticism that, under the Court’s analysis, it would or could find in any subsequent case a limiting principle preventing the collection of DNA from, say, those arrested for traffic violations, it is of course possible that the Court could find such a distinction.) The Court also noted that in Maryland, samples may not be processed or added to the database until after arraignment, when a judicial officer “ensures that there is probable cause to detain the arrestee.” The presence of probable cause, and the arrestee’s corresponding reduced expectation of privacy, were “fundamental” to the Court’s decision to uphold the collection of DNA from “arrestees.” The Court also noted that samples must be expunged if the arrestee is not convicted. Finally, the Maryland statute strictly limits use of the DNA database to solving cold cases and identifying remains and missing persons; use of the database for other purposes (research, to test for paternity, to analyze health or other traits) is criminalized. The Court explicitly said that a database that was not so limited would raise additional privacy concerns that would require a new analysis.

As usual, it’s more likely that the Court will have another opportunity to examine the constitutionality of DNA collection from arrestees if a circuit split arises regarding one or more of these or other practices. And that, in turn, depends, on how widely states and the federal government vary in their authorizing statutes. An Urban Institute report from May 2013 suggests that variation is, in fact, widespread on these potentially constitutionally relevant factors:

Seriousness of offense

Of the 28 arrestee DNA states, 13 collect DNA from those arrested or charged with any felony; 14 (like MD) collect only from a subset of felonies, typically involving violence, sexual assault, or property crimes; 7 collect from anyone arrested or charged with select misdemeanors; 1 (OK) collects from “any alien unlawfully present under federal immigration law”; and the federal government accepts profiles of any arrestee and any non-US citizen detained by the US government. In addition, 2 states collect DNA immediately upon arrest only if the arrestee has been previously convicted of a felony (CT) or other qualifying crime (TX).

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Maryland v. King, Low-Stringency DNA Database Searches, and the Case for a Universal Database

By Michelle Meyer 

Disclaimer: I’m not a Fourth Amendment person. Rather, my interest in King is in its implications for policies for the use of DNA in the criminal justice system. I spent the better part of a year after my Ph.D and before beginning law school helping to research and edit a book on DNA and the criminal justice system and co-authoring its final chapter with the book’s editor, David Lazer. Although that was ten years ago now, most of the major policy issues in this area have not much changed over the last decade. So, with that caveat, and an invitation to readers to point out anything I say that is out of date or otherwise inaccurate, here are a few quick thoughts on King.

The majority and dissenting opinions spill most of their respective ink taking contrary positions on the primary purpose served by collecting DNA from arrestees. The majority somehow manages to argue with a straight face that the primary purpose (and indeed, to guess from its analysis, apparently the only purpose) of collecting DNA from arrestees is to identify the body of the arrested individual sitting in the booking room. As Justice Scalia wrote in dissent, this claim by the Court “taxes the credulity of the credulous” (slip op. dissent at 1). The clear primary purpose and actual use of statutes authorizing the routine collection of DNA from arrestees is to solve other cases than the one “at bar,” if you will, in the booking room.

One might have thought that the Court went out of its way to avoid finding that the primary purpose of the DNA collection at issue is “to detect evidence of ordinary criminal wrongdoing,” (Indianapolis v. Edmond, 531 U. S. 32, 38 (2000), in order to avail itself of the “special needs” exception to the Fourth Amendment’s usual requirement that searches be conducted pursuant to individualized suspicion. But no. The Court ultimately concludes that the special needs cases “do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy” (slip op. at 25). In upholding the state’s power to collect DNA from arrestees, then, the Court relied on — along with the minimally intrusive nature of the search — the arrestee’s reduced expectation of privacy. Indeed, the Court deemed the latter feature “fundamental” to its analysis (id. at 24).

Consider, then, that no such reduced expectation of privacy can be attributed to an even larger class of individuals who are indirectly included in DNA offender databases: the relatives of arrestees (and others who are directly included in offender databases).

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U.S. Supreme Court Upholds Constitutionality of DNA Collection Upon Arrest (Maryland v. King)

By Michelle Meyer

The U.S. Supreme Court ruled this morning, in Maryland v. King, that it is constitutional under the Fourth Amendment’s protection against “unreasonable” searches and seizures for the state to compel collection of DNA from arrestees. The probable cause required to arrest someone under the Fourth Amendment permits fingerprinting and taking photographs during the booking process, and the Court held that collecting DNA (limited to 13 loci in supposed “junk DNA”) was not relevantly different. The decision was 5-4, with Kennedy writing for the Court and joined by Chief Justice Roberts and Justices Thomas, Alito, and Breyer. Justice Scalia dissented in his usual spirited way, joined by Justices Ginsburg, Sotomayor, and Kagan.

I suspect that one or more Bill of Health bloggers will have some analysis of this decision once they’ve had the chance to digest it. In the meantime, here is a still-relevant primer I co-authored in 2004 on legal and ethical debates involving DNA and the criminal justice system (including issues related to both offender DNA databases and post-conviction access to potentially exculpatory crime scene DNA). Note that Justice Breyer, in addition to being the Court’s resident patent expert (except him to play a large role in the upcoming Myriad gene patenting decision), has been following debates about DNA and the criminal justice system for some time. He authored Chapter 2 of the book I just linked to.

Too Young for Sex, But Old Enough for the Sex Offender Registry, Part II

By Michele Goodwin

This post is the second in a three part series on the use of criminal law to police teen sex.  The first part can be viewed here.

In recent years, thousands of judicial proceedings against children result in teens as young as thirteen being adjudicated as sexual predators and placed on sex offender registries.  The problem in the United States is that statutory rape laws create per se rule violations with respect to all sexual intercourse involving children.  My research reveals that children as young as 11 have been prosecuted as both the victim and sex offender.  In some states, even sexual touching involving consenting minors breaks the law. In other words, sex with a person under the age of majority or age of consent (depending on the specific state legislation) is always crime.  In a recently published Wisconsin Law Review article found here, I argue that such prosecutions can and often do lead to absurd results.

In Utah, which serves as a relative example, a child who commits “more than five ‘separate acts’ of sexual touching,” even without sexual penetration, could be convicted for “aggravated sexual abuse of a child.” In South Dakota, a minor can be adjudicated a delinquent and guilty of first-degree rape for one act of sexual penetration, regardless of consent if the consenting party is under thirteen.. Wisconsin’s statutory rape law reads similarly. These matters are particularly thorny in their application against children because legally a child cannot consent to sexual intercourse. In some states, including Utah, adolescent fondling constitutes sexual abuse of a child just as attempts to touch the buttocks, breasts, or “intent to arouse or gratify the sexual desire.” Even consenting children will always be deemed “victims” in states that take this approach.

According to the CDC, nearly 50% of high school teenagers have had sexual intercourse.  In fact, by the 9th grade over 30% of girls and nearly 40% of boys have had sex.  In conservative states like Mississippi and South Carolina, pre-teen boys report the highest rates of pre-teen sex (19.1% and 17.1%, respectively).   Along with reporting sexual activity, white teens report the highest rates of combining sex with alcohol.

CDC studies expose the gaps in how parents view and understand youth sexuality. An American Broadcasting Company (ABC) News survey investigating parental and teens attitudes on sex places has some startling findings.  Consider this: while nearly ninety percent of parents surveyed confirmed that they spoke with their teens about sex, only forty nine percent of teens believed such conversations took place.

However, adolescent sexual activity raises questions for the law.  Should teens be prosecuted for committing the crime of rape if they engage in consensual sexual intercourse with children of their own or near age?  Is it ethical to prosecute children similarly to adults for having sex with other children?  More to come in Part III.

 

 

Kudos to This American Life

By Michelle Meyer

A few weeks ago, I blogged about a recent episode of This American Life, “Dr. Gilmer and Mr. Hyde,” about the quest of one Dr. Gilmer (Benjamin) to understand why another, beloved Dr. Gilmer (Vince), had brutally murdered his own father after hearing voices that compelled him to do so. The episode ends (spoiler alert) with the revelation that Vince suffers from Huntington’s, a rare, neurodegenerative disease that causes progressive physicial, cognitive, and psychological deterioration.

Listeners, it seemed to me, could naturally conclude from the episode that it was Vince’s Huntington’s that had caused him to murder his father. That might or might not be true in this particular case. Huntington’s can cause behavioral and mood changes, including irritability, aggression and belligerence. It can also cause (less often) psychosis. But even if Huntington’s caused Vince to murder his father, or somehow contributed to the murder, the extreme violence that Vince displayed — strangling his father, then sawing off his father’s fingertips to preclude identification — is in no way typical of the Huntington’s population as a whole. And so what most troubled me about the episode was its failure to note just how rare this kind of extreme violence is among those with Huntington’s, just as it is very rare among human beings generally. And so I wrote to TAL, requesting a clarification.

I’m happy to report that the TAL producer for the episode, Sarah Koenig — who had not intended to suggest any causal link between Vince’s murder of his father and his Huntington’s, much less between murder and Huntington’s more generally — has issued a clarification on the show’s blog, and promises to make a similar clarification in the episode itself, should they ever re-air it. Kudos to TAL, and many thanks to Sarah for being incredibly gracious in our exchanges.

One clarification deserves another. In my earlier blog post, I also worried that some listeners might  conclude that Vince’s father was similarly driven to commit horrific acts of sexual abuse on Vince and his sister because he, too, was (presumably) suffering from Huntington’s (an autosomal dominant genetic disease). Although I think that a listener who didn’t know better could reasonably conclude that Huntington’s causes people to become sexual predators almost as easily as they could conclude from the episode that Huntington’s causes people to become murderers, nothing in the episode suggests that Sarah, Benjamin Gilmer, or anyone else at TAL believe that Huntington’s causes sexual abuse, or that they intended for listeners to reach that conclusion. I regret anything in my earlier post that suggested otherwise.

Again, I’m very grateful to Sarah and everyone else at TAL for hearing me (and other listeners) out and for agreeing to make the clarification — and just in time for HD Awareness Month!

Too Young for Sex, But Old Enough for the Sex Offender Registry, Part I

By Michele Goodwin

This post is the first in a three part series on the use of criminal law to police teen sex.

A recent study by Human Rights Watch suggests that statutory rape law is a poor tool for reducing teen sexuality.  Their study and my forthcoming article, Law’s Limits: Regulating Statutory Rape Law, published by the Wisconsin Law Review concur on this point.  Consider an unfortunate case that underscores the importance of revisiting statutory rape law prosecutions in the United States.  In 2011, J.L. was adjudicated a delinquent, charged with first‑degree rape, and convicted under the South Dakota statutory rape statute. According to the South Dakota Supreme Court, J.L., a fourteen-year-old, “engaged in consensual sexual intercourse with his girlfriend, who was twelve” and only fifteen months his junior.  Despite both adolescents consenting to sex in this case, in the state of South Dakota, J.L.’s conviction will result in legal and extralegal penalties far more severe than that of an adult rapist who commits a sexually violent act against a college peer, a random woman, or during the commission of another crime.  This is because J.L.’s “victim” was under the age of thirteen.

In a provocative commentary, buried in a footnote, the South Dakota Supreme Court references the harsh penalties J.L. and other minors who engage in consensual sex with minors will encounter. The court explains, “[i]t appears that J.L. will be required to register as a sex offender for life.” In other words, J.L.’s “mark” as a sexual predator burdens him with the same potent and socially stigmatic punishment as that of a convicted, middle-aged pedophile who rapes a minor.  This prosecution and others similar point to the absurd results in many statutory rape cases involving teens who have consensual sex with teens.

As I note in the forthcoming article, had J.L.’s girlfriend been an adult and a nonconsensual sexual act occurred, he could qualify for release from the sex offender registry list after only ten years, rather than the life-term that now serves as his punishment.  In South Dakota, consensual sex between minors may result in a more severe punishment than nonconsensual sexual encounters either between adults or between a teenage male and an adult woman.   But, are such outcomes just?  Do they reflect broad social consensus?  Or do such prosecutions lead to absurd, untenable results?

In the coming week, my blog posts will address these and other relevant questions.

Hair, Stress, and the Law

A new study has found a relationship between cortisol levels in our hair and prevalence of metabolic syndrome (a cluster of abnormalities that increase the likelihood of developing diabetes and heart disease). Here’s how the New York Times describes the study:

High levels of cortisol — the so-called stress hormone — have been associated with cardiovascular disease in some studies, but not in others. This may be because measuring cortisol in blood or saliva at one point in time may pick up acute stress, but it fails to account for long-term stress. . . . Now Dutch researchers have assessed cortisol levels over several months by analyzing scalp hair samples. . . . The researchers measured the cortisol content in hair samples corresponding to roughly three months of growth from 283 older men and women, average age 75. They also gathered self-reported data about coronary heart disease, stroke, peripheral artery disease, Type 2 diabetes, lung disease, cancer and osteoporosis. . . . Compared with those in the lowest quarter for cortisol, those in the highest quarter had about three times the risk for cardiovascular disease and diabetes.

In the actual paper, the researchers say little or nothing about “stress,” and if I recall correctly, the relationship between cortisol and stress can be complicated. But the research raises the possibility that we will someday identify reliable measurements of chronic stress over time. Of course, we may need more than just your hair. But in what I call the experiential future, such evidence—combined perhaps with other physiological, neurological, and psychiatric data—may enable us to make better assessments of chronic stress levels than we can now.

Better measurements of chronic stress could transform the way we measure damages in tort cases and measure punishment severity in criminal cases. Billions of dollars change hands every year based on difficult-to-verify assertions about pain and stress. Similarly, we adjust the severity of incarceration by changing the duration of sentences and pay almost no attention to the very different ways in which prisoners experience confinement. Measurements of stress levels could also help determine when an interrogation tactic constitutes torture.

Of course, forensic techniques encourage people to use countermeasures. In the cortisol-hair study, for example, one measurement was apparently affected by rates of shampooing while another was not. So I’m not suggesting there will be a silver bullet that solves all measurement problems. When evaluating the scientific research, however, it is important to remember just how bad we are at measuring stress levels now, despite the fact that we make such assessments every day. The technology need hardly be perfect to represent an improvement.

Fox on DNA Forensic Error and the Execution of Innocents

By Dov Fox

Willie Jerome Manning, a 44-year-old black man, is scheduled to die by lethal injection on Tuesday for the 1992 kidnapping and murder of white college students Jon Steckler and Tiffany Miller in Mississippi. No physical evidence has ever linked Manning to the crime. And the Justice Department has just come clean that the forensic science used to prosecute Manning was fundamentally flawed.

A jury convicted Manning almost 20 years ago based on three kinds of circumstantial evidence. First was the testimony of his cousin and a jailhouse informant who claimed that he confessed the crime to them. The cousin had accused two other men before Manning, however, and the informant has since recanted altogether. Second were Steckler’s jacket, ring, and CD player from his car that Manning was arrested for trying to sell. Manning told police from the beginning that he had acquired the stolen property from someone he didn’t know.

Critical to the prosecution’s case was the last piece of evidence against Manning: expert testimony by an FBI agent that African American hair fragments were found in Miller’s car. Not only did DNA and fingerprints found at the crime scene never incriminate Manning himself, however. Two days ago, the Justice Department notified Manning’s lawyer and the County District Attorney that “testimony containing erroneous statements regarding microscopic hair comparison analysis was used in this case.” Federal officials have yet to detail the precise errors involved, but made clear in their letter that the FBI’s forensic evidence was unsound not least because it “exceeded the limits of science” at the time.

Keep reading…