Criminal Justice, New Technologies, And The Constitution

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Criminal Justice, New Technologies, and theConstitutionMay 1988NTIS order #PB88-213921

Recommended Citation:U.S. Congress, Office of Technology Assessment, Criminal Justice, New Technologies, and the Constitution, OTA-CIT-366 (Washington, DC: U.S. Government Printing Office, May 1988).Library of Congress Catalog Card Number 88-600524For sale by the Superintendent of DocumentsU.S. Government Printing Office, Washington, DC 20402-9325(order form can be found in the back of this report)

ForewordIn honor of the Bicentennial of the United States Constitution, OTA is conducting a study of Science, Technology, and the Constitution. At the request ofthe Committee on the Judiciary of the House of Representatives, and its Subcommittee on Courts, Civil Liberties and the Administration of Justice, OTA is examining ways in which continuing scientific advances and new technological developments may influence the scope and meaning of enduring constitutional principlesand protections. A background paper, Science, Technology, and the Constitution,was released in September 1987. The first of several special reports, Science, Technology, and the First Amendment, was released in January 1988.Articles I and III of the Constitution and four of the ten amendments in theBill of Rights address the rights of those suspected, accused, or convicted of crime.This report, Criminal Justice, New Technology, and the Constitution, looks atnew technologies used for investigation, apprehension, and confinement of offenders,and their effects on the constitutional protection of these rights.These technological innovations offer social benefits that respond to the current pressures for reduction of crime, the just and equitable administration of justice, and relief of prison overcrowding. However, technology throughout historyhas been a double-edged sword, equally capable of enhancing or endangeringdemocratic values. This report describes the new technologies being used in criminal justice and, as in all of the reports of this series, addresses that delicate balance to be maintained between the national interest and individual rights.JOHN H. GIBBONSDirector.///

Science, Technology, and the Constitution Project Review PanelWilliam CareyAdvisor to the Carnegie Foundation ofNew YorkWashington, DCJames DugganDirectorNew Hampshire Appellate DefenderProgramConcord, NHJudith LichtenbergCenter for Philosophy and Public PolicyUniversity of MarylandCollege Park, MDPeter LowHardy Cross Dillard Professor of Law andJohn V. RayResearch ProfessorSchool of LawUniversity of VirginiaCharlottesville, VAThe Honorable Pauline NewmanUnited States Circuit JudgeUnited States Court of Appeals for theFederal CircuitWashington, DCMonroe Price, DeanBenjamin Cardozo Law SchoolNew York, NYMark RothsteinDirector of Health LawUniversity of HoustonHouston, TXThomas SmithAssistant DirectorCriminal Justice SectionAmerican Bar AssociationWashington, DCPaul StephenProfessorUniversity of VirginiaSchool of LawCharlottesville, VALaurence R. TancrediKraft Eidman Professor of Medicine andthe LawUniversity of TexasHouston, TXNOTE: OTA appreciates and is grateful for the valuable assistance and thoughtful critiques provided by the reviewers.The reviewers do not, however, necessarily approve, disapprove, or endorse this report. OTA assumes fullresponsibility for the report and the accuracy of its contents.iv

Criminal Justice, New Technology, and the ConstitutionOTA Project StaffJohn Andelin, Assistant Director, OTAScience, Information, and Natural Resources DivisionFred W. Weingarten, Program ManagerCommunication and Information Technologies ProgramProgram StaffVary T. Coates, Project DirectorBenjamin C. Amick III, Analyst*Robert Kost, Analyst**Mary Ann Madison, Research AnalystAdministrative StaffLiz EmanuelKarolyn SwaugerBecky BattleContractorsDavid J. Roberts, Judith A. Ryder, and Thomas F. WilsonSEARCH Group, Inc., Sacramento, CAGene StephensCollege of Criminal Justice, University of South Carolina*Until May 1987**Until Oct. 1987

ContentsPageChapter l. Technology and Rights in Criminal Justice . . . . . . . . . . . . . . . . . . . . . 1The Technological Revolution in Criminal Justice . . . . . . . . . . . . . . . . . . . . . . . 1Criminal Justice and Constitutional Protections . . . . . . . . . . . . . . . . . . . . . . . . 2The Prohibition on Unreasonable Searches and Seizures . . . . . . . . . . . . . . . . 3The Rights of the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4The Rights of Those Convicted of Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7The Right of Privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Technological Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Chapter 2. New Technology for Investigation, Identification,and Apprehension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Mobile Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Electronic Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Computerized Data Matching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15DNA Typing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Automated Fingerprint Identification Systems. . . . . . . . . . . . . . . . . . . . . . . . . . 18Biometric Security Systems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20“Less-Than-Lethal” Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Chapter 3. New Technology for Decisionmaking:Social Sciences and Computers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Predictive Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Decisionmaking Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Artificial Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Chapter 4. New Technologies for Correctional Supervisionand Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31Alternatives to Conventional or Traditional Prisons . . . . . . . . . . . . . . . . . . . . . 32Electronic Monitoring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Drug Therapy and Hormone Manipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Antabuse and Alcohol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Depo-Provera and Sex Offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38Alternative Techniques for Behavior Control. . . . . . . . . . . . . . . . . , , . . . . . . . 41Chapter 5. Technology for Record Keeping and Information Sharing . . . . . . . . . 45Reporting and Data Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45Dissemination of FBI Criminal History Records . . . . . . . . . . . . . . . . . . . . . . . . 46Electronic Records and Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47Chapter 6. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51Appendix. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 53

Chapter 1Technology and Rights in Criminal JusticeTHE TECHNOLOGICAL REVOLUTION IN CRIMINAL JUSTICEAs recently as the 1960s, criminal justice institutions lagged far behind business and Federal Government agencies in adopting newtechnology.’ Then, in 1967, the President’sCommission on Law Enforcement and Administration of Justice made sweeping recommendations for modernizing the administration ofcriminal justice with new technologies.2 Thetechnological innovations that followed in thenext two decades have transformed nearly everycomponent of the criminal justice system. 3This technological transformation is continuing. Advanced technology, growing directlyout of recent developments in basic science,is finding immediate application in the investigation of crime— for example, DNA typing.New technologies are also used in trials andin judicial decisionmaking-for example, computer models based on social science researchare used in assessing the likelihood of recidivism. Finally, new technologies such as electronic bracelets are being used in corrections.Others, such as hormonal therapy for sexoffenders, are being tested in experimentalprograms.Three categories of scientific knowledge appear most promising for criminal justice, interms of the technological capabilities thatthey can provide. In criminal justice applicaIMuCh of the ma ri in this report draws on SEARCHGroup, Inc., “New Technologies in Criminal Justice: An Appraisal, ” David J. Roberts and Judith A. Ryder, PrincipalAuthors, a contractor report prepared for the Office of Technology Assessment, March 1987.%e President’s Commission on Law Enforcement andAdministration of Justice, The Challenge of (lime in a FreeSociety (Washington, DC: U.S. Government Printing Office,1967), pp. 244-271.Wo assist criminal justice professionals in selecting technologies suited to their needs, the National Institute of Justiceestablished the Technology Assessment Program (TAP). TAPis responsible for coordinating equipment testing, compilingand disseminating test results, and operating a reference andreferral center. An Advisory Council recommends directions forfuture standards and tests.tions, these three areas of science and technology converge and complement each other.The first is information science, already provialing the criminal justice system with abroadarray of computer and telecommunicationstechnologies. Surveillance technology can enhance the investigation of crime. Computerswill offer nearly unlimited possibilities for aggregating information and sharing it withother criminal justice agencies. They can alsobe used to model or simulate the outcomes ofalternative prevention and correction strategies.The second important field is molecular biology (sometimes called “New Biology”). Studies of the chemical and genetic basis of humanbehavior or mental functioning promise newtechniques for identification, testing, andscreening, using body fluids or tissues. Theymay also become the basis of behavior modification or control.The third field is social science research, stillrelatively underdeveloped by comparison withphysical and biological sciences, but increasingly being used to build statistical and behavioral models and decision guidelines.Each has a dark side, an aspect of social costor social risk. Information technologies, for example, can lead to gross violations of individual privacy. The use of molecular biology tosubstitute “treatment for behavior disorders”for “punishment for criminal actions” is a profound change in the paradigms of social control. It brings into question the assumptionof individual responsibility for behavior, whichis one of the underlying principles of constitutional government. Social science models areconstructed from data on populations or largegroups of people. If used to predict individualbehavior in making decisions about probationor sentencing, they could reinforce discriminatory stereotypes and penalize people who are1

2poor, undereducated, or members of minorities.Under some circumstances, social science predictions of recidivism could result in decisionsthat approach being punishment in anticipation of crime.In evaluating new and emerging technologies for use in criminal justice, one aspect thatis sometimes overlooked is the possibility thatthey may affect the constitutional rights ofthose suspected, accused, or convicted of crime.For example, the development of wiretappingtechnology for the detection and investigationof crime resulted in several decades of uncertainty as to whether wiretapping without a judicial warrant was “an unreasonable searchand seizure” in violation of the Fourth Amend-ment. It required repeated actions by both theSupreme Court and the Congress to fully resolve this uncertainty.More recent technological innovations in lawenforcement and criminal justice are likely toresult in similar challenges to their constitutionality. One can anticipate some of thesechallenges by considering potential innovations in comparison with earlier innovations,and in the context of continuing trends in constitutional interpretation. Legislators andcriminal justice administrators may then beable to shape the use of technology in waysthat more clearly avoid infringing on constitutional rights.CRIMINAL JUSTICE AND CONSTITUTIONAL PROTECTIONSArticles I and III of the U.S. Constitutionand 4 of the 10 amendments in the Bill ofRights address the rights of those suspected,accused, or convicted of crime. The Fourth,Fifth, Sixth, and Eighth Amendments includeprohibitions against unreasonable searchesand seizures (of evidence), double jeopardy, andforced self-incrimination; the guarantees of therights to grand jury indictment, trial by jury,confrontation of witnesses, and calling of defense witnesses; and the far-reaching requirement of due process in criminal justice proceedings.The writers of the U.S. Constitution wereacutely aware that tyrannical governmentshad often used accusations of crime to ridthemselves of political dissidents. They recognized also that in punishing crime, the statemost directly and forcefully intervenes to takethe life, liberty, or property of its citizens. Respect for the rights of even the most despicable violators of law and social order has beena fundamental cornerstone of American criminal justice, in theory if not always in practice.When, therefore, new scientific knowledge ornew technological capabilities are brought intothe service of law enforcement, it is right andnecessary to inquire into their possible effectson constitutional safeguards. To begin that inquiry, it will be helpful to review briefly whatthose safeguards are.Throughout the following discussion, reference will be made to the 14th Amendment,which is not part of the Bill of Rights. The 14thAmendment, ratified in 1868, provided thatall persons born in this country (or later naturalized) are citizens of the United States and ofthe State in which they live. This was intendedto protect former slaves and their descendants.The Amendment then says that:No State shall make or enforce any lawwhich shall abridge the privileges or immunities of citizens of the United States; nor shallany State deprive any person of life, liberty,or property, without due process of law; nordeny to any person within its jurisdiction theequal protection of the laws.Until 1868 the prohibitions and protectionsof the Bill of Rights restrained only the Federal Government.4 Even after the 14thAmendment, the Supreme Court ruled in 1873that most of the basic civil rights were not4Mo t of the stab n9titutions also had Bi.h of Rights) butthe Federal courts could not enforce these if State courts failedto do SO.

3privileges or immunities of U.S. citizenship,but resulted from State citizenship.’ Thismeant that the 14th Amendment still did notsubject the State governments to the restraintsof the first 10 amendments. Instead, the Supreme Court used the 14th Amendment’s DueProcess Clause to protect the property rightsof “corporate persons” by striking down aseries of State laws aimed at improving working conditions.Over the last four decades, however, the Supreme Court has reconsidered this position andhas said that the Due Process Clause of the14th Amendment incorporates most of therights listed in the first 10 amendments. It hassaid in effect that “due process” summarizesfundamental concepts of justice and liberty,some of which are specified in the Bill of Rights.This includes most, although not all, of the protections in the Fourth, Fifth, Sixth, and EighthAmendments, as will be noted in the discussion that follows.State constitutions also include Bills ofRights. Now they are generally patterned onthe U.S. Bill of Rights, but in 1789, the FirstCongress drew on provisions in some State constitutions, which incorporated some of thetraditional common law rights of Englishmen,in framing the first 10 amendments. Todaysome of the rights guaranteed in State constitutions may go beyond the effective scope ofFederal rights.The Prohibition on UnreasonableSearches and SeizuresThe meaning and scope of this FourthAmendment prohibition has repeatedly beenbrought into question by changing technology.It reads:The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shall notbe violated, and no Warrants shall issue, butupon probable cause, supported by Oath andaffirmation, and particularly describing the%Th sl U@terhou9eCases, 83 U.S. 36 (1873)”place to be searched, and the persons or thingsto be seized.British authorities in the American colonieshad issued general “writs of assistance” thatallowed searches at will or on slight suspicion,especially for contraband smuggled in violation of Parliamentary duties on imports. Thiswas a factor in the unrest that eventually ledto the American Revolution. The FourthAmendment required a warrant issued by amagistrate,6 so that law enforcement officialscould not invade personal property and privacyat their own discretion, or for purposes ofharassment. This constraint now applies toState government actions as a result of the14th Amendment.Nearly every phrase in the Fourth Amendment has been frequently challenged, often because of technological changes. Those whodrafted this provision in 1789 could not haveforeseen automobiles, wiretapping, remotesensing, or biosensors. As early as 1925 theCourt allowed warrantless searches of movingvehicles because automobiles had made possible the rapid movement of suspects and evidence out of a jurisdiction.Beginning in 1928 Congress and the Courtshave had to consider whether use of electronicsurveillance devices was a search and, morerecently, whether accessing computerizeddatabases was a seizure. Courts have had todecide whether evidence may besought in bankrecords, medical histories, and insurance files,on paper or in computerized databases.7 Questions have arisen as to whether and when authorities may “seize” one’s breath (for analysis for alcohol), or one’s urine, semen, blood,or other fluids and tissues.The development of electronic surveillancetechnology, biosensors and biological testingand screening technologies, and computerGDuting est, a wWatle9s search is permissible if theauthority has “probable cause” to believe a crime has been committed.‘Ralph C. Chandler, Richard A. Enslen, and Peter G. Renstrom, The Constitutional Law Dictionary (Santa Barbara, CA:ABC-CLIO, 1985), vol. 1, “Individual Rights, ” p. 168, citingZurcher v. Stanford Daily (436 U.S. 547: 1978).

4matching and other data aggregation techniques has made many kinds of routine or random surveillance easier, cheaper, and less visible to those who are monitored. In manyplaces, for example, police are increasinglyusing sobriety checks and photographing traffic to apprehend speeders; Federal and Stateagencies use computer-matching to detectfraud and abuse in welfare programs; and public employers use random drug testing to enforce workplace rules. In the past, concernabout surveillance and privacy has generallyfocused on the constitutional right

Technology and Rights in Criminal Justice THE TECHNOLOGICAL REVOLUTION IN CRIMINAL JUSTICE As recently as the 1960s, criminal justice in-stitutions lagged far behind business and Fed-eral Government agencies in adopting new technology.’ Then, in 1967, the President’s Commission on Law Enforcement and Admin-

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