Criminal Justice, New Technologies, and the

Constitution

May 1988

NTIS 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 88-600524

For sale by the Superintendent of Documents

U.S. Government Printing Office, Washington, DC 20402-9325

(order form can be found in the back of this report)
Foreword

In honor of the Bicentennial of the United States Constitution, OTA is conducting a study of Science, Technology, and the Constitution. At the request of

the 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 principles

and 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 the

Bill of Rights address the rights of those suspected, accused, or convicted of crime.

This report, Criminal Justice, New Technology, and the Constitution, looks at

new 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 history

has been a double-edged sword, equally capable of enhancing or endangering

democratic 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. GIBBONS

Director

. . . ///
Science, Technology, and the Constitution Project Review Panel

William Carey

Advisor to the Carnegie Foundation of

New York

Washington, DC

James Duggan

Director

New Hampshire Appellate Defender

Program

Concord, NH

Judith Lichtenberg

Center for Philosophy and Public Policy

University of Maryland

College Park, MD

Peter Low

Hardy Cross Dillard Professor of Law and

John V. Ray

Research Professor

School of Law

University of Virginia

Charlottesville, VA

The Honorable Pauline Newman

United States Circuit Judge

United States Court of Appeals for the

Federal Circuit

Washington, DC

Monroe Price, Dean

Benjamin Cardozo Law School

New York, NY

Mark Rothstein

Director of Health Law

University of Houston

Houston, TX

Thomas Smith

Assistant Director

Criminal Justice Section

American Bar Association

Washington, DC

Paul Stephen

Professor

University of Virginia

School of Law

Charlottesville, VA

Laurence R. Tancredi

Kraft Eidman Professor of Medicine and

the Law

University of Texas

Houston, TX

NOTE: 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 full

responsibility for the report and the accuracy of its contents.

iv
Criminal Justice, New Technology, and the Constitution

OTA Project Staff

John Andelin,

Science, Information,

Assistant Director, OTA

and Natural Resources Division

Fred W. Weingarten, Program Manager

Communication and Information Technologies Program

Program Staff

Vary T. Coates, Project Director

Benjamin C. Amick III, Analyst*

Robert Kost, Analyst**

Mary Ann Madison, Research Analyst

Administrative Staff

Liz Emanuel Karolyn Swauger Becky Battle

Contractors

David J. Roberts, Judith A. Ryder, and Thomas F. Wilson

SEARCH Group, Inc., Sacramento, CA

Gene Stephens

College of Criminal Justice, University of South Carolina

*Until May 1987

**Until Oct. 1987
Contents

Page

Chapter l. Technology and Rights in Criminal Justice . . . . . . . . . . . . . . . . . . . . . 1

The Technological Revolution in Criminal Justice . . . . . . . . . . . . . . . . . . . . . . . 1

Criminal Justice and Constitutional Protections . . . . . . . . . . . . . . . . . . . . . . . . 2

The Prohibition on Unreasonable Searches and Seizures . . . . . . . . . . . . . . . . 3

The Rights of the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Rights of Those Convicted of Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Right of Privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Technological Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Chapter 2. New Technology for Investigation, Identification,

and Apprehension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mobile Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Electronic Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Computerized Data Matching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

DNA Typing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Automated Fingerprint Identification Systems. . . . . . . . . . . . . . . . . . . . . . . . . . 18

Biometric Security Systems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

“Less-Than-Lethal” Weapons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Chapter 3. New Technology for Decisionmaking:

Social Sciences and Computers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Predictive Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Decisionmaking Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Artificial Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Chapter 4. New Technologies for Correctional Supervision

and Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Alternatives to Conventional or Traditional Prisons . . . . . . . . . . . . . . . . . . . . . 32

Electronic Monitoring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Drug Therapy and Hormone Manipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Antabuse and Alcohol. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Depo-Provera and Sex Offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Alternative Techniques for Behavior Control. . . . . . . . . . . . . . . . . , , . . . . . . . 41

Chapter 5. Technology for Record Keeping and Information Sharing . . . . . . . . . 45

Reporting and Data Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Dissemination of FBI Criminal History Records . . . . . . . . . . . . . . . . . . . . . . . . 46

Electronic Records and Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Chapter 6. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Appendix. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 53
Chapter 1

Technology and Rights in Criminal Justice

THE TECHNOLOGICAL REVOLUTION IN CRIMINAL JUSTICE

As recently as the 1960s, criminal justice institutions lagged far behind business and Federal Government agencies in adopting new

technology.’ Then, in 1967, the President’s

Commission on Law Enforcement and Administration of Justice made sweeping recommendations for modernizing the administration of

criminal justice with new technologies.2 The

technological innovations that followed in the

next two decades have transformed nearly every

component of the criminal justice system.3

This technological transformation is continuing. Advanced technology, growing directly

out 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 and

in judicial decisionmaking-for example, computer models based on social science research

are 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 sex

offenders, are being tested in experimental

programs.

Three categories of scientific knowledge appear most promising for criminal justice, in

terms of the technological capabilities that

they can provide. In criminal justice applicaIMuCh of the ma~ri~ in this report draws on SEARCH

Group, Inc., “New Technologies in Criminal Justice: An Appraisal, ” David J. Roberts and Judith A. Ryder, Principal

Authors, a contractor report prepared for the Office of Technology Assessment, March 1987.

%e President’s Commission on Law Enforcement and

Administration of Justice, The Challenge of (lime in a Free

Society (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 Justice

established the Technology Assessment Program (TAP). TAP

is responsible for coordinating equipment testing, compiling

and disseminating test results, and operating a reference and

referral center. An Advisory Council recommends directions for

future 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 abroad

array of computer and telecommunications

technologies. Surveillance technology can enhance the investigation of crime. Computers

will offer nearly unlimited possibilities for aggregating information and sharing it with

other criminal justice agencies. They can also

be used to model or simulate the outcomes of

alternative prevention and correction strategies.

The second important field is molecular biology (sometimes called “New Biology”). Studies of the chemical and genetic basis of human

behavior or mental functioning promise new

techniques for identification, testing, and

screening, using body fluids or tissues. They

may also become the basis of behavior modification or control.

The third field is social science research, still

relatively underdeveloped by comparison with

physical 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 cost

or social risk. Information technologies, for example, can lead to gross violations of individual privacy. The use of molecular biology to

substitute “treatment for behavior disorders”

for “punishment for criminal actions” is a profound change in the paradigms of social control. It brings into question the assumption

of individual responsibility for behavior, which

is one of the underlying principles of constitutional government. Social science models are

constructed from data on populations or large

groups of people. If used to predict individual

behavior in making decisions about probation

or sentencing, they could reinforce discriminatory stereotypes and penalize people who are

1
2

poor, undereducated, or members of minorities.

Under some circumstances, social science predictions of recidivism could result in decisions

that approach being punishment in anticipation of crime.

In evaluating new and emerging technologies for use in criminal justice, one aspect that

is sometimes overlooked is the possibility that

they may affect the constitutional rights of

those suspected, accused, or convicted of crime.

For example, the development of wiretapping

technology for the detection and investigation

of crime resulted in several decades of uncertainty as to whether wiretapping without a judicial warrant was “an unreasonable search

and seizure” in violation of the Fourth Amendment. It required repeated actions by both the

Supreme Court and the Congress to fully resolve this uncertainty.

More recent technological innovations in law

enforcement and criminal justice are likely to

result in similar challenges to their constitutionality. One can anticipate some of these

challenges by considering potential innovations in comparison with earlier innovations,

and in the context of continuing trends in constitutional interpretation. Legislators and

criminal justice administrators may then be

able to shape the use of technology in ways

that more clearly avoid infringing on constitutional rights.

CRIMINAL JUSTICE AND CONSTITUTIONAL PROTECTIONS

Articles I and III of the U.S. Constitution

and 4 of the 10 amendments in the Bill of

Rights address the rights of those suspected,

accused, or convicted of crime. The Fourth,

Fifth, Sixth, and Eighth Amendments include

prohibitions against unreasonable searches

and seizures (of evidence), double jeopardy, and

forced self-incrimination; the guarantees of the

rights 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 were

acutely aware that tyrannical governments

had often used accusations of crime to rid

themselves of political dissidents. They recognized also that in punishing crime, the state

most directly and forcefully intervenes to take

the life, liberty, or property of its citizens. Respect for the rights of even the most despicable violators of law and social order has been

a fundamental cornerstone of American criminal justice, in theory if not always in practice.

When, therefore, new scientific knowledge or

new technological capabilities are brought into

the service of law enforcement, it is right and

necessary to inquire into their possible effects

on constitutional safeguards. To begin that inquiry, it will be helpful to review briefly what

those safeguards are.

Throughout the following discussion, reference will be made to the 14th Amendment,

which is not part of the Bill of Rights. The 14th

Amendment, ratified in 1868, provided that

all persons born in this country (or later naturalized) are citizens of the United States and of

the State in which they live. This was intended

to protect former slaves and their descendants.

The Amendment then says that:

No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty,

or property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

Until 1868 the prohibitions and protections

of the Bill of Rights restrained only the Federal Government.4 Even after the 14th

Amendment, the Supreme Court ruled in 1873

that most of the basic civil rights were not

4Mo~t of the stab ~n9titutions also had Bi.h of Rights) but

the Federal courts could not enforce these if State courts failed

to do SO.
3

privileges or immunities of U.S. citizenship,

but resulted from State citizenship.’ This

meant that the 14th Amendment still did not

subject the State governments to the restraints

of the first 10 amendments. Instead, the Supreme Court used the 14th Amendment’s Due

Process Clause to protect the property rights

of “corporate persons” by striking down a

series of State laws aimed at improving working conditions.

Over the last four decades, however, the Supreme Court has reconsidered this position and

has said that the Due Process Clause of the

14th Amendment incorporates most of the

rights listed in the first 10 amendments. It has

said in effect that “due process” summarizes

fundamental 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 Eighth

Amendments, as will be noted in the discussion that follows.

State constitutions also include Bills of

Rights. Now they are generally patterned on

the U.S. Bill of Rights, but in 1789, the First

Congress drew on provisions in some State constitutions, which incorporated some of the

traditional common law rights of Englishmen,

in framing the first 10 amendments. Today

some of the rights guaranteed in State constitutions may go beyond the effective scope of

Federal rights.

The Prohibition on Unreasonable

Searches and Seizures

The meaning and scope of this Fourth

Amendment prohibition has repeatedly been

brought into question by changing technology.

It reads:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath and

affirmation, and particularly describing the

_%Th~ sl~U@terhou9e Cases, 83 U.S. 36 (1873)”

place to be searched, and the persons or things

to be seized.

British authorities in the American colonies

had issued general “writs of assistance” that

allowed searches at will or on slight suspicion,

especially for contraband smuggled in violation of Parliamentary duties on imports. This

was a factor in the unrest that eventually led

to the American Revolution. The Fourth

Amendment required a warrant issued by a

magistrate,6 so that law enforcement officials

could not invade personal property and privacy

at their own discretion, or for purposes of

harassment. This constraint now applies to

State government actions as a result of the

14th Amendment.

Nearly every phrase in the Fourth Amendment has been frequently challenged, often be

cause of technological changes. Those who

drafted this provision in 1789 could not have

foreseen automobiles, wiretapping, remote

sensing, or biosensors. As early as 1925 the

Court allowed warrantless searches of moving

vehicles because automobiles had made possible the rapid movement of suspects and evidence out of a jurisdiction.

Beginning in 1928 Congress and the Courts

have had to consider whether use of electronic

surveillance devices was a search and, more

recently, whether accessing computerized

databases was a seizure. Courts have had to

decide whether evidence may besought in bank

records, 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 surveillance

technology, biosensors and biological testing

and screening technologies, and computerGDuting ~ ~est, a wWatle9s search is permissible if the

authority 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, citing

Zurcher v. Stanford Daily (436 U.S. 547: 1978).
4

matching 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 many

places, for example, police are increasingly

using sobriety checks and photographing traffic to apprehend speeders; Federal and State

agencies use computer-matching to detect

fraud and abuse in welfare programs; and public employers use random drug testing to enforce workplace rules. In the past, concern

about surveillance and privacy has generally

focused on the constitutional rights of individuals who are suspected of criminal activity. But

many people are now concerned that the increasing use of monitoring techniques may impinge on the privacy of the general public, and

indicates a subtle widening of the net of social

control that goes far beyond traditional democratic practices.

The Rights of the Accused

There are several specific protections for

those accused of crime in the body of the U.S.

Constitution, predating the Bill of Rights. Article I, Section 8, guarantees that the writ of

Habeas Corpus shall not be suspended except

in time of rebellion or invasion. The same Section prohibits bills of attainder and ex post

facto laws.

Habeas Corpus means that a person may not

be imprisoned without being brought before

a judge, who ascertains that the imprisonment

is legal and for cause. The name comes from

a common law writ that usually began with

those Latin words, which mean, “You should

have the body ... ,“ i.e., have evidence that

a crime has occurred. A bill of attainder removed all civil rights and protections from one

who had been convicted of certain crimes, usually treason. An ex post facto law would make

punishable some action performed before the

law was passed.

Article III, Section 2 of the U.S. Constitution

guarantees a trial by jury for all crimes. It also

provides a strict definition of treason and the

requirements for conviction of treason.8

E%ction 2 ~90 provide9 that the penalty sh~ not include

“corruption of blood, ” i.e., no penalties such as loss of property

Three amendments-the Fifth, Sixth, and

Eighth—further protect the rights of those accused of crime. Most of these protections have,

in the last two or three decades, also been held

to apply to State actions.9 Most State constitutions had similar protections, but they were

not always enforced.

The Fifth Amendment begins with a provision that:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury

10

. . .

A resolution of the 1788 Massachusetts convention for ratification of the Constitution insisted that the right to a grand jury be added

to the Constitution.11 The right was already

incorporated in the Constitution of the State

of North Carolina. The concept of a grand jury

goes back in English common law to the time

of William the Conqueror, who took the throne

of England in 1066 A.D. But the Fifth Amendment requirement of grand jury indictment

does not apply to State governments.12

..— —

can be visited on the children or inheritors of the convicted traitor. Such multigenerationa.1 penalties had been common in old

world countries where prirnogeniture was practiced (i.e., estates

were by law inherited intact by the oldest son).

9PW0”. COnnwtjcut, 302 U.S. 319, 58 S. Ct. 149782 L. Ed”

288 (1937), established “selective incorporation” in determining which Bill of Rights provisions related to rights of the accused should be applied to State actions under the 14th Amendment. This was a case involving double jeopardy; the guideline

or “rationalizing principle” enunciated by Justice Cardozo, was

whether a particular protection is “of the very essence of a

scheme of ordered liberty, ” such that its bypassing would violate “a principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental.” This case

held that the prohibition of double jeopardy was not so fundamental, but this was overturned later; now only the grand

jury Provision Of ,the Fifth Amendment and the Excessive F~es

and Bads prolubltlon of the Eighth Amendment have not been

“selectively incorporated” as limitations on the States.

IOThe clause continues, “ . . . except in cases arising in the

land or naval forces or in the Militia, when in actual service

in time of War or public danger; . . .” which the Supreme Court

interprets to mean accusations against any member of the armed

forces. Civilians, even dependents of military personnel or civilian employees of the military, may not be tried by military

tribunals, and once discharged, a former member of the military cannot be prosecuted for crimes committed while in service, except in civil courts with grand jury protection. Edwin

S. Corwin and J.W. Peltason, Understanding the Constitution

(New York, NY: Holt, Rinehart, & Winston, 1967), p. 122.

“Chandler et al., op. cit. footnote 7, p. 201,

lz~urtado v. c~”form.a (110 U.S. 516: 1884); this ruling has

prevailed over the following 100 years. Chandler, et al., op. cit.

footnote 7, p. 197, p. 207.
5

The purpose of a grand jury is to indict or

formally accuse one or more persons of crime,

but only if there is sufficient evidence to justify

a trial. A grand jury cannot convict one of having broken a law. It must refuse to indict if

the evidence is inadequate to establish that a

crime has occurred and there is cause to suspect the accused and to believe that his13 conviction may result. Thus access to a grand jury

is a protection against arbitrary actions and

harassment of citizens by government or its

officers. 14

The Fifth Amendment also provides that no

one may:

. be subject for the same offense to be twice

put in jeopardy of life or limb . . .

That is, one may not be tried twice in Federal

courts for the same offense. If the government

fails to get a conviction on the first attempt,

it cannot continue to persecute or harass one

through the threat of repeated trials. However,

one may be subject to both civil and criminal

penalties for the same act, and may also be

tried by both Federal and State Governments

for some actions. ’s

Under the Fifth Amendment, no person:

shall be compelled in any criminal case to

be a witness against himself. . . .

In English common law, this prohibition forbade torture or trial by ordeal. In modern

times, it has protected one from being forced

to give evidence against oneself in the courtroom. In this century, the question raised was

———— — -— -

1~For simplicity, the male pronoun will be generally used in

referring to one suspected, accused, or convicted of crime. Males

commit the overwhelming proportion of crimes, as indicated

by the fact that 94.8 percent of those in prison, as of June 30,

1987, are males (information supplied by the Bureau of Justice

Statistics, U.S. Department of Justice).

IJThe evidence may be put before the gr~d jury by a

prosecuting officer or maybe collected by the grand jury itself,

through compelled testimony. There may not be more than 23

members of a grand jury, and 12 must agree on indictment.

15A person may be retried in Federal court for the same crime

if there is no verdict because the jury cannot agree, or if the

judge dismisses the jury or declares a mistrial before the verdict. He or she may also be retried if an appellate court sets

aside a conviction because of an error in the proceedings. The

test of whether an accusation is for “the same act” is whether

the same evidence would be required to sustain a conviction.

whether one was protected only within the

courtroom, or during police questioning as well.

If one can be forced by the police to confess,

or to provide evidence against oneself, protection against self-incrimination in courtroom

testimony may be too late to be effective.

Until 1966, the Supreme Court used the Due

Process Clauses in the Fifth and 14th Amendments to reverse convictions that rested on evidence gotten by the police through coercion,

which might range from physical punishment

through psychological pressure. ’G But in

Miranda v. Arizona17 in 1966, the Court specifically extended the reach of the prohibition

on self-incrimination to police questioning, and

said that no conviction would be upheld unless the suspect had been told his rights.” A

conviction can be reversed even if there is independent evidence sufficient to prove guilt.

Science and technology have raised questions about the scope of self-incrimination.

Statements made under psychiatric examination are protected.19 However, the protection

against self-incrimination has not been extended to cover non-testimonial evidence provided by modern technology. The Court has

16The prohibition againSt ‘if-kcrumination by compelled testimony has been held to apply not only in court proceedings

but in other government investigating situations; for example,

in answering questions put by congressional committees, where

such answers might expose one to indictment and prosecution.

This protection falls within the 14th Amendment’s limitations

on the States. It has been held to protect one against the risk

of prosecution by States; and one can claim the right under the

Fifth Amendment not to answer questions put by a State agency

that might lead to Federal prosecution. However, the Federal

Government may grant immunity from both Federal and State

prosecutions, in which case a witness may be fined or imprisoned if he or she refuses to answer questions.

17384 U.S. 436 (1966).

%@cifically, the suspect must be told that he has the right

to remain silent, must be warned that anything he says may

be used against him during trial, must be informed that he has

a right to have a lawyer present during questioning, and must

be told that the court will provide a lawyer if the suspect has

no funds to pay for one.

19Estelle v. Sm”th, 451 U.S. 454 (1981). Psychiatric testimony was used at the sentencing stage (a separate hearing under Texas law). The Court held that self-incrimination is prohibited at all stages, applies to statements made to a psychiatrist

when the psychiatrist testifies for the prosecution, and in general the protection is “as broad as the mischief against which

it seeks to guard. ” See Chandler, et al., op. cit., footnote 7, pp.

227-228.
6

affirmed that police may cause a physician to

draw blood from a suspect to determine its alcohol content when there is reasonable suspicion of drunkenness, even over the suspect’s

objections. 20 Evidence in the form of breath

content, semen, hair, or tissue samples may

also be taken without consent of the suspect,

when taken in a manner that does not “shock

the conscience. ”21

The Sixth Amendment guaranteed the right

to:

. . . a speedy and public trial by an impartial

jury . . .

in all criminal prosecutions. This right was intended to prevent “undue and oppressive incarceration prior to trial, to minimize anxiety

and concern accompanying public accusation,

and to limit the possibility that the delay will

impair the ability of the accused to defend himself. ’22 It does not prevent long delays

caused by the defendant and counsel themselves. Recently attention has turned to the

question as to whether long delays do not

threaten the public interest rather than those

of the defendant, but this is not covered by

the Sixth Amendment.

The right to a “public” trial has been challenged because of technology; does “public”

mean that cameras must be allowed? Could

trials be broadcast? The right to public trial

is a right of the defendant and not a right of

the press, and many verdicts have been challenged by those convicted on the grounds of

too much rather than too little public involvement in trials.23 Courts have allowed reporters

and even television cameras access to public

trials, but they are not required to do so.

Article III of the U.S. Constitution already

required trial by jury of all Federal crimes,

without the Eighth Amendment. This redundancy emphasizes its importance under EngM-erhr ~. c~”iom”a, 384 U.S. 757, 86 S. Ct. 1826 (1966).

2’Rocfu”n v. Califom”a, 342 U.S. 165 (1952).

“Um”t~ stabs V. EwelZ, 382 U.S. 117 (1966).

23Corwin and Peltason, op. cit., footnote 10, p. 126.

lish common law.24 The right is construed to

say that a trial jury must have no more and

no less than 12 people, and a unanimous verdict is necessary for conviction.25 The right to

a jury trial maybe waived by a defendant, but

a judge may still rule that a jury is necessary.

States are not prevented by the Sixth

Amendment from having a jury of fewer than

12 in criminal procedures, nor must they require unanimous votes for conviction.

“Scientific” selection of juries–that is, attempts to influence the acceptance of 12 jurors

to reflect demographic, social, economic, or cultural patterns desired by one side or the other

—is a recent development. It is not yet clear

whether it has constitutional aspects or implications.

The Sixth Amendment also requires that an

accused person

. . . be informed of the nature and cause of the

accusation, . . . be confronted with the witnesses against him; . . . have compulsory process for obtaining witnesses in his favor, and

have the Assistance of Counsel for his

defense. ”

The right to have “assistance of counsel, ”

by virtue of the Miranda decision, now begins

as soon as the person is taken into custody by

the police. Only in 1978 was this provision extended to the States under the 14th Amendment’s Due Process Clause.

With new technology, courts have allowed

certain accusers to be confronted by the accused only indirectly; for example, allegedly

abused children have been questioned and

videotaped in Judge’s quarters, and the tapes

later shown to the jurors.26

zlThe Seventh Amendment provides for trial by jury in

common-law cases (civil litigation in Federal courts) when the

value in controversy is over $2o and is of little import today.

It does not apply to equity proceedm“ gs nor to cases arisingfrom

statutory law, and it may be dispensed with by agreement of

the two parties with the consent of the court.

z6The jw requirement, does not however WPIY to PettY

offenses, to deportation proceedings, nor to military tribunal

proceedings.

‘eThe right to be confronted in open court by accusers aPplies only to criminal trials, and not to, for example, deportation proceedings.
7

People who are accused may not be able to

defend themselves adequately in court if they

have been unable to seek evidence and witnesses because they were held in prison from

the time they were accused until they were

brought to trial. The Eighth Amendment forbids “excessive bail, ” that is, bail should not

be set prohibitively high, but only high enough

to make it probable that the accused will appear for trial. A person can however be denied

bail when the possible penalty for the crime

is death, since avoiding this would be worth

the loss of any amount of money.

The Bail Reform Act of 1966 allowed magistrates to take into account other factors, such

as prior criminal offenses and family and community ties that would discourage running

away. These changes reflect in part the results

of social science research and computer simulations that relate such factors to the probability of undesirable future behavior. Recent legislation further eases the restrictions on

pre-trial detention where there is reason to

think the accused may commit other crimes

while awaiting trial.

The Rights of Those Convicted

of Crimes

Once convicted of a crime, people still have

constitutional protections. The Eighth Amendment says that:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.

“Cruel and unusual punishment” in 1789

meant imposition of severe physical pain

through such punishments as burning at the

stake, crucifixion, breaking on the wheel, and

the thumbscrew. It was not construed at that

time or subsequently to include capital punishment, whether by the old technologies of hanging or shooting or the later technologies of electrocution, lethal gas, or injection. There has,

however, been a movement in the direction of

lethal technologies generally considered less

painful to the victim. Arguments have been

made that in the modern world, “early” death

is less usual and hence more “cruel” than it

was 200 years ago, but this has not been accepted by the courts. The Supreme Court has

however recognized that the standard of “cruel

and unusual” can change over time. It has

declared that punishment is cruel and unusual

when out of proportion to the offense, when

it punishes illness (i.e., addiction to drugs, without evidence of a crime), or when it involves

loss of citizenship (i.e., for desertion from the

armed forces).

The protections of the Eighth Amendment

apply against actions of the States under the

14th Amendment.

Due Process

The broadest, most frequently cited, and

most frequently challenged protection of the

Fifth Amendment, repeated in the 14th Amendment, is the provision that a person may not:

. . . be deprived of life, liberty, or property,

without due process of law. . . .

The Court has developed two complementary concepts of “due process,” i.e., procedural

due process and substantive due process. Procedural due process means that laws and their

applications must not be arbitrary, vague, or

inconsistent in effect; all legal standards and

procedures should be basically “fair,” regular,

and ordered. Disputes about procedural due

process under the Fifth Amendment have generally centered on whether this is an additional

limitation on the Federal Government, or

merely reinforces the other provisions of the

Bill of Rights. Justice Black and other Justices

have held the latter view, on the grounds that

to strike down a law because it violates general standards of justice is to give too much

discretion to courts, but there is no clear rule

on this point.27

“Substantive due process” looks to the purpose and substance of a law or government procedure rather than to the way it is used. This

concept holds that laws and policies must be

27Corwin and Peltason, op. cit., footnote 10, pp. 124-125.
8

rationally related to legitimate legislative objectives; some areas are beyond the reach of

government power. This concept was developed and applied sporadically, after about 1890,

first to strike down economic regulations that

limited property rights, but later to expand

the scope of personal rights, especially those

related to contraceptive technology, abortion,

and marital privacy .28 From 1890 to 1937,

substantive due process was generally used to

assert freedom of contract. The Court struck

down laws fixing minimum wages and hours

of labor, forbidding employers to fire workers

for joining unions, and prohibiting child labor.

After 1937, the Court refused to use the concept of substantive due process in this way.

Thirty years later, it again began to use the

concept to wall off from government interference certain private activities, primarily marriage, procreation, child rearing, and educational choice, held to be beyond the appropriate

reach of legislation.

The Right of Privacy

Those who have been convicted of crime have

a diminished right of privacy as compared with

other people;29 but this right does constrain

the activities of governments in investigating,

prosecuting, and punishing crime. The Bill of

Rights does not use the word “privacy,” nor

is this right explicitly stated elsewhere in the

U.S. Constitution; but the Bill of Rights as a

whole is understood to define or indicate a

“penumbra of privacy” where government

should not intrude. Thirteen State constitutions contain explicit guarantees of a right to

privacy. For example, the Constitution of the

State of California includes the right to privacy

among the “inalienable rights” listed in Article I, Section 1.30

281bid.

zg~udson v. ~~mer, 468 U.S. 517 (1984) [prisoners have ‘0

reasonable expectation of privacy in their cells and, hence, no

protection by the Fourth Amendment against unreasonable

searches]; Block v. Rutherford, 468 U.S. 576 (1984) [Prisoners

have no right to be present when authorities search their cells].

SOLe@slation Drafting Rese~ch Fund of Columbia University, Constitutions of the United States: National and State

(New York, NY: Oceana Publishers, November 1985).

At the Federal level, Judge Brandeis said

in a 1928 wiretapping case that the Fourth and

Fifth Amendments together recognized “a

right to be let alone, which is the right “most

valued by civilized men. ”31 Brandeis was however in dissent in that case. In a 1958 civil liberties case Justice Harlan spoke of the “vital

relationship between freedom to associate (in

the First Amendment) and privacy in one’s

associations. ” In a 1969 pornography case Justice Marshall said that regulation of obscenity

cannot extend into “the privacy of one’s own

home, ” and that the government has no business to tell a man “sitting alone in his own

house, what books he may read or what films

he may watch.”

The right to privacy was made explicit in

Griswold v. Connecticut,32 in 1965, striking

down a contraceptive law. Since then it has

been expanded to include other aspects of marriage, reproduction, and health. It is usually

based on the Due Process Clause and on the

Ninth Amendment doctrine of retained rights,

and more generally on a “zone of privacy” or

penumbra created by several fundamental constitutional guarantees.

The right to privacy has two slightly different aspects: one of personal autonomy, a sphere

of action (such as reproduction) where the individual makes choices without interference

by government unless there is a compelling

public interest; and one of confidentiality,

where government or the public in general has

no right to know something about an individual. In general, the right to autonomy is

diminished when one is formally accused of

crime and very narrowly constrained if one is

convicted of crime; and similarly, the right to

confidentiality is also progressively diminished

for those suspected, accused, or convicted of

crime. These personal rights, however, while

narrowed do not disappear. Prisoners retain

some claim both to personal privacy and to autonomy—for example, rights to basic religious

observances and to consent or refusal to participate in medical research projects.

Sldlmstead v. Um”td States, 277 U.S. 438:1928.

32381 U.S. 479.
9

TECHNOLOGICAL TRENDS

There are many indications that continuing

trends in technology will stimulate continuing

reexamination of the constitutional rights of

those suspected, accused, or convicted of crime.

Information technology, in particular, is permeating all phases of the administration of justice. As used in surveillance, it strongly supports law enforcement but involves risks of

violation of the constitutional right to privacy.

Sensing techniques-involving sight and photography, sound and tapping or taping, and

a variety of biological sensors—are increasingly

powerful, able to operate at great distances,

miniaturized and easy to conceal, and otherwise undetectable to the subject. In the form

of data aggregation, storage, and processing

systems, information technology allows local

jurisdictions to cooperate, decreasing their dependence on national law enforcement agencies. But it also creates records that are persistent and widely shared, and difficult for the

subject to know about, to access, to verify, or

to correct.

Emerging technologies based on molecular

biology may reveal some of the causes of violent, aggressive, and antisocial behavior. They

could also be used to manipulate or control behavior, and this would risk violations of individual autonomy. And they could provide information about people, thus risking invasions

of privacy.

Social science-based techniques are increasingly used to predict, manipulate, and control

behavior, and to guide and standardize decisions related to law enforcement and criminal

justice. By depersonalizing the decisionmaking process they may attribute to individuals

the characteristics of groups and in so doing

may have the paradoxical effect of increasing

the risk of violating equal protection of the law.

All of these technologies, and the scientific

knowledge on which they are based, may affect the nature of evidence that is used in identifying offenders, and in helping juries determine their guilt or innocence. A knowledge of

scientific principles and methodology may be

necessary to fully understand the means by

which this information was gathered, what it

indicates, and the degree of certainty or uncertainty in this interpretation. Lay judges and

juries may have difficulty in reaching this understanding. Knowing this, courts have often

been slow to accept new kinds of technologymediated information. This is a necessary safe

guard; there must be very high reliability in

presenting evidence to a jury. Experts have

remained divided on the reliability of polygraphs, for example, and courts have not accepted such evidence. 33 The use of evidence

based on advanced science and technology

could also put some defendants (especially

those who are indigent or not highly educated)

at a relative disadvantage. At the same time,

both law enforcement agencies and government prosecutors may be unnecessarily handicapped in identifying and prosecuting criminals, if courts are unnecessarily slow to accept

scientifically sound evidence.

There are nontechnical reasons to examine

carefully how technologies are used in criminal justice. Many new science-based technologies have similar effects which could degrade

constitutional protections:

●

●

●

They increase the ability of government

to observe, control, or intervene in the affairs of an individual singly, rather than

with large groups or the public as a whole;

this could erode the effectiveness of constitutional restraints based on common

law formulations.

They allow investigation or surveillance

at a distance, or out of sight of both the

subject and concerned public interest

groups; generally raising the level of surveillance and narrowing the expectation

of privacy in society.

By increasing the power of government

to detect infractions and prosecute or pun33U.S. Congress, Office of Technology Assessment, Su”entifi”c

Vah”alty of Polygraph Testing: A Research Review and Evaluation—Techm”cal Memorandum (Washington, DC: U.S. Government Printing Office, November 1983).
10

Photo credit: Luma Telecom Sales Division of Mitsubishi Electrlc Sales America, Inc.

Computer systems enable investigators to more quickly and accurately identify suspects.

ish minor infractions of law, they may either enhance the achievement of law and

order, or widen the net of social control,

or do both.

● While bringing greater expertise to bear

on crime investigation and control, they

also tend to move decisionmaking about

guilt and about punishment from laymen

(peers, citizens) to experts (the technical

elite).

● Some suggest alternatives to traditional

modes of correction or punishment, which

in turn may create issues of equal treatment or equal protection of the laws.

● They may increase the disparity between

rich and poor, highly educated and undereducated, in the ability to defend oneself

in court or in the penalties that are visited

on those found guilty.

While these characteristics give cause for

caution, modem technology holds great promise for improving the enforcement of criminal

laws and the administration of criminal justice, to the benefit of all Americans. With the

aid of electronic surveillance, Automated Fingerprint Identification Systems, mobile digital

computers, and expert systems, for example,

police can make more arrests and apprehend

more serious offenders. Similarly, technological advancements and new methodologies can,

if wisely used, enable prosecutors, courts, and

corrections officials to concentrate their often

limited resources on violent and repeat offenders. Innovations in decisionmaking, such as

development of criteria and guidelines, improve the consistency of the criminal justice

process. The benefits of these technologies are

well-established and apparent, in spite of some

potential for abuses.
Chapter 2

New Technology for Investigation,

Identification, and Apprehension

In most cases, a suspect enters the criminal capture suspects. Now new technologies are

justice system as a result of investigation and providing police with powerful new capabilapprehension by the police. Since the begin- ities. By improving the abilities of local and

nings of organized police work in the early 19th State law enforcement agencies to cooperate

century, technological advances have widened across jurisdictions, these new technologies

the net cast by police investigations and have may also decrease their dependence on Fedimproved the ability to identify offenders and eral law enforcement agencies.

MOBILE COMMUNICATIONS

The municipal police, as an institution, are

a relatively modern invention. They date from

1829, when Sir Robert Peel, then the British

Home Secretary, won approval from Parliament for the creation of a metropolitan police

force.’ In the American colonies cities had

watchmen who patrolled streets at night to secure life and property and to care for the lights.

It was 1844 before the first metropolitan police force was formally organized, in New York.

Other major American cities quickly followed

suit.2

The police walked prescribed beats, isolated

from headquarters and without means of communications. Commanders had difficulty supervising their men and responding to emergencies. The establishment of telegraph networks

in the 1850s linked police districts to headquarters and, eventually, the beat patrolman to his

station house. The call box was initially simIR.B. Fosdick, European Police Systems (New York, NY:

The Century Co., 1915). The English police were subsequently

referred to as “Peelers” or “Bobbies” in reference to the author

of the bill from which they originated. L.A, Radelet, The Poh”ce

and the Comrnuni”ty (Beverly Hills, CA: Glencoe Press, 1973).

2E.H. Sutherlmd, &~o]oH (Philadelphia, PA: J*B. @-

pincott, 1924), pp. 186-187. Also see Law Enforcement Assistance Adrninistration, Two Hundred Years of American Justice: An LEAA Bicentzmm”al Study (Washington, D. C.: U.S.

Government Printing Office, 1976). Chicago established its police force in 1851, followed by New Orleans and Cincinnati in

1852, Boston in 1854, and Baltimore and Newark in 1857. J.

Rubinstein, City Police (New York, NY: Farrar, Straus & Giroux,

1973).

ply a signaling lever indicating the presence

of the officer at his prescribed post. Telephones

were put in call boxes in 1880 for two-way communications between the officer on the street

and his station house. With the introduction

of the automobile and the radio in the early

1900s, an officer was able to cover a substantially larger beat, increase the frequency of patrol, and respond to calls for service.

While much of today’s police work is done

from an automobile, many large departments

also use motorcycles, airplanes, and helicopters. Most departments use both car radios and

hand-held walkie-talkies, giving officers substantially more freedom of movement and

greater security. Many have also installed mobile digital terminals in police cars. Linked to

automated databases, these terminals enable

the officer to query drivers’ license files and

other relevant information systems.3 Computer-assisted dispatching systems let dispatchers keep track of where officers are and efficiently assign cars to calls.

These technologies have raised some constitutional issues related to a subject rights

during apprehension and arrest when an ar30ther systems include the National Crime Information Center (NCIC), which is operated by the Federal Bureau of Investigation (FBI). See G. Lyford and U. Wood, Jr., “National Crime

Information Center: Your Silent Partner, ” Hill Law Enforcement Bulletin, No. 52, March 1983, pp. 10-15 for a discussion

of the NCIC system.

11
12

resting officer has used computer-provided ter 5 on constitutional issues related to qualdata that proved to be wrong or obsolete. These ity of criminal history records.

questions will be considered further in chapPhoto credit: National Institute of JustIce Technology Assessment Program

Digital terminals in police cars allow instant access to computerized databases.

ELECTRONIC SURVEILLANCE

In the last two decades, advances in imag- in the future require, frequent reexamination

ing technology, remote sensing, telecommuni- and reinterpretation in the context of these new

cations, computers, and related technologies means of surveillance, by both Congress and

have greatly increased the capability for sur- the Federal Courts.4

veillance of people and their activities. Electronic surveillance includes both sensing tech- Title III of the Omnibus Crime Control and

Safe Streets Act of 1968 extended the exist- niques and techniques for aggregating and

comparing computerized records to reveal ad- ing statutory and judicial principles regardditional information about an individual. The

Fourth Amendment guarantee of “the right dInfomation in this section not otherwise cited comes from

of people to be secure in their persons, houses, the report, U.S. Congress, Office of Technology Assessment,

papers, and effects, against unreasonable Federal Government Information Technology: Electrom”c Surveilknce and Civil L“berties, OTA-CIT-293 (Washington, DC:

searches and seizures” has required, and will U.S. Government Printing Office, October 1985.)
13

ing privacy to surveillance technology, but at

that time this technology still consisted largely

of telephone taps and concealed microphones.

It now includes many far more sophisticated

technologies that can be used to:

1. identify an individual’s location or track

an individual’s movements;

Z. monitor and record actions, such as dialing of telephone numbers or automated

transactions;

3. listen in on communications or to intercept digital communications;

4. visually monitor behavior; and

5. test or measure reactions and emotions

(polygraph testing, voice stress analysis,

brain wave analysis, etc.).

Electronic surveillance technologies already

in use by Federal law enforcement or intelligence agencies, and by some State and local

agencies, include at least the following:5

●

●

●

●

●

●

●

●

●

●

●

●

●

closed-circuit television;

light vision systems and image intensifiers;

parabolic microphones;

miniature transmitters;

electronic beepers;

telephone taps and recorders;

pen registers;

computer usage monitors;

electronic mail monitors;

cellular radio interception;

satellite beam interception;

pattern recognition systems; and

intruder detector systems working on

vibrations, ultrasound, infrared radiation,

etc.

Pen registers are devices that are attached

to a telephone line to record the dialed pulses

by sensing the changes in magnetic energy,

thus allowing the interceptor to identify the

telephone numbers being called. Parabolic

microphone can tremendously amplify sound.

5

1n 1985, OTA sent a Federal Agency Data R~quest to ~1

major components within the 13 cabinet-level agencies and to

20 independent Federal agencies, asking about use of surveillance technology, as well as other electronic technologies, The

National Security Administration and the Defense Intelligence

Agency within the Department of Defense were excluded because the data request results were to be unclassified.

Lasers can be used to amplify window vibrations and convert them to audible sound. Night

observation devices use infrared radiation or

intensify ambient light (e.g., from stars) to the

visible spectrum. Image intensifiers allow individuals to be recognized at 100 meters (325

feet).’

The surveillance technologies most frequently used bylaw enforcement agencies are

undoubtedly still wiretaps and ‘bugs, or hidden microphones. In 1986, Federal and State

judges approved 754 requests for electronic

surveillance, out of 756 that were submitted.

This was a drop of 4 percent over the previous

year and 6 percent fewer than in 1984.7 This

does not include the 573 wiretaps conducted

under the Foreign Intelligence Surveillance

Act in 1986.8

Wiretapping has been a subject of constitutional challenges for 60 years. The Supreme

Court ruled in a 5-4 decision’ in 1928 that

wiretapping was not contrary to the U.S. Constitution because there was no physical trespass and no search or seizure of physical belongings, and because voice communications

projected outside one’s house were not protected. Bills were then introduced in Congress

to restrict wiretapping, but none passed. Six

years later, Congress remodified the 1927 Radio Act. Section 605 of this 1934 Communications Act said that “no person not being authorized by the sender shall intercept any

communications and divulge the contents. ”

Congress may not have intended that prohibition to apply to law enforcement, but the Su6CJteve ‘w~ght, fiowm of Peace and Conflict Rese~ch,

University of Lancaster, United Kingdom, “New Police Technologies: An Exploration of the Social Implications and Unforeseen Impacts of Recent Developments, ” Journal of Peace

Research, vol. XV, No. 4, 1978, pp. 5302-322.

7“Report on Applications for Orders Authorizing or Approving the Interception of Wire or OraJ Communications for the

Period Jan. 1, 1986 to Dec. 31, 1986, ” prepared by the Statistical Analysis and Reports Division of the U.S. Courts, Washington, DC 20544, p. 2.

Whis information was supplied by congressional staff, to update figures contained in U.S. Congress, House of Representatives, Implementation of the Foreign Intelligence Surveillance

Act, Report 98-738, May 9, 1984, 98th Cong., 2d sess., app, C.

In 1983, 549 FISA Court orders were obtained.

go~mstead v. Umetti States, 277 U.S. 438.
14

preme Court held in 1938 that it prohibited all

wiretapping, even by Federal officials.10 Bills

to allow law enforcement wiretaps with procedural safeguards passed both houses, but did

not clear a conference committee before thesession ended. In spite of the Court’s ruling, the

Justice Department, construing Section 605

differently from the Court, continued to use

wiretaps.

Finally, in 1967,11 the Supreme Court ruled

that wiretapping was a “search” under the

Fourth Amendment. The Court further held

that it maybe “unreasonable” if the subjects

have a “reasonable expectation of privacy” in

the area or in the activity under surveillance.

As to how such an expectation is to be established, the Court has adopted a two-part test

based on Justice Harlan’s concurring opinion

in that case: that the person has exhibited an

actual (subjective) expectation and that society is prepared to recognize it as reasonable.

This appears to mean that one’s privacy is protected if one closes a telephone booth door before speaking (demonstrating an expectation

of privacy) but not if one is talking on an unenclosed telephone in a public office. However,

the Court also said that the Fourth Amendment “protects people, not places. ” This may

have been intended to avoid the tie to physical trespass in the 1928 decision, but its full

meaning is not clear.

The Court also left unanswered the question

of how the Katz decision would apply to other

forms of electronic surveillance. The courts

have tried to extend the principle of a “reasonable expectation of privacy. ” This becomes

more and more tenuous in the context of remote sensing devices, but the courts generally

have continued to assume that certain places

such as residences and yards should have a

higher level of protection than other places.

Wiretapping by law enforcement and national security agencies can be done only under certain procedural safeguards, set out in

Title III of the 1968 Omnibus Crime Control

Act. This law prohibits electronic tapping of

ION=~one V. u~”&j states, 302 ‘-s. 379”

I IKatz “. uN”t&j states 389 U.S. 3479 360”

conversations except under a court order, when

consented to by one participant in the conversation,12 for certain necessary telephone company monitoring, and (under later amendment)

in surveillance allowed by the Foreign Intelligence Surveillance Act of 1978. The court

orders must be requested by high-level prosecutors, be related to one of a specified list of

crimes, rest on probable cause to believe that

a crime has been committed by the target of

the surveillance, and be necessary because

other kinds of investigation would be ineffective, among other procedural requirements.

State officials are also allowed to wiretap under State legislation modeled after the act and

for the investigation of specified crimes.

The Foreign Intelligence Surveillance Act

of 1978 set standards for use of electronic surveillance in collecting foreign intelligence and

in counter-intelligence activities within the

United States. It covers not only wiretapping

of voice communications, but taps of teleprinters, telegraphs, facsimile machines, and digital communications. The 1978 law also covers

radio intercepts and other monitoring devices,

such as closed-circuit television and vehicle

trackers. In these categories, protection

against surveillance is limited to circumstances

in which a person has a reasonable expectation of privacy and a warrant would be required

if surveillance were conducted for law enforcement purposes.

Two recent Supreme Court cases involved

surveillance by means of new technology. In

Dow Chemical Co. v. United States, 1986, the

company contested an action of the U.S. Environmental Protection Agency (EPA). The

agency, refused permission to make an on-site

inspection of a chemical facility, hired a commercial aerial photographer to make pictures

from within lawful navigable air space, without benefit of a search warrant. The Court held

lzThe Massachusetts Supreme Court recently fied that the

State constitution requires a warrant for electronic surveillance

of a private home even when one party to a conversation has

consented to its recording and transmission. Commonwealth

v. lhod, 507 N.E. 2nd 1029 (Mass. 1987). This is an example

of more stringent safeguards under a State constitution than

under the U.S. Constitution, a not unusual occurrence.
15

that this was not a search prohibited by the

Fourth Amendment, because the commercial

facility was analogous to an open field rather

than a personal dwelling (in terms of the expectation of privacy) and because EPA was

using a “conventional” camera that merely enhanced human vision.

In California v. Ciraola, argued the same day,

the Court held that the Fourth Amendment

was not violated by observation and photography (without a search warrant) of marijuana

growing in the garden of a private house, which

was enclosed and shielded by fences. The owner

of the garden had shielded it from some views,

but not from “a public vantage point” where

police officers had a right to be, thus the expectation of privacy was not reasonable.

These two cases appear to make the “reasonable expectation of privacy” a function of

rapidly changing technology. They seem to say

that given more and more powerful surveilCOMPUTERIZED

Computer matching is the computerized

comparison of two or more sets of electronic

records to search for individuals who are included in both or all sets. It is used in many

government agencies to detect fraud, waste,

and abuse; for example, the collecting by one

person of overlapping or redundant government benefits, where this is not legitimate.14

The National Crime Information Center

(NCIC) is a criminal justice information database administered by the FBI and used by

64,000 local, State, and Federal agencies. It

holds over 19 million records related to convicted, wanted, unidentified, and missing persons, as well as descriptions of stolen articles,

vehicles, guns, and license plates. In 1987 the

NCIC’s Advisory Policy Board (APB) considered proposals to broaden the database in

“U.S. Congress, Office of Technology Assessment, Federal

Government Information Technology: Electronic Record Systems and Inolvidual Privacy, OTA-CIT-296 ( Washington, DC:

U.S. Government Printing Office, June 1986).

lance technology there will be fewer and fewer

places or circumstances in which one could reasonably expect privacy and in which, therefore,

one would be protected against unreasonable

searches and seizures, or against surveillance

without a search warrant. This makes it likely

that there will be further challenges to determine the limits to which surveillance may constitutionally go.

The Electronic Communications Privacy Act

of 198613 was enacted to extend protection

from electronic surveillance to voice and data

digital communications, electronic mail and

messaging services, and cellular phones, thus

expanding Title III protections. Nevertheless,

there may already be surveillance technologies

not covered by statute, especially when they

do not technically require interception of existing communications systems.

ls~blic Law 99-508, C)Ctj. 21, 1986, 100 Stat. 1849-1855.

DATA MATCHING

redesigning the NCIC system, to include records of misdemeanors and juvenile offenses,

photographs and artist sketches of persons under investigation, DNA patterns, and some

other kinds of investigative information.15

The APB rejected or narrowed some proposals

because of their civil liberties implications, but

approved concepts for tracking files for subjects of investigations related to drugs, murders, or kidnappings. This would be a major

departure since NCIC has so far been a public

record system.

.- ——— —..

16A memoradum on “fiopos~ Expansion of NCIC” was

sent to “interested parties” requesting comments on these

proposals, on June 11, 1987, by Congressman Don Edwards,

Chairman of the Subcommittee on Civil and Constitutional

Rights of the Committee on the Judiciary, U.S. House of Representatives. In response to this memorandum, staff members

of OTA’S Communication and Information Technologies Program prepared a Staff Paper on “Issues Relevant to NCIC 2000

Proposals, ” Nov. 12, 1987, for use of the Hon. Edwards’ Subcommittee in considering the Advisory Panel proposals. Results

of the NCIC Advisory Policy Board meeting on Dec. 9-10, 1987,

when proposals were evaluated, were summarized in a memorandum to Interested Parties, Dec. 16, 1987, from Chairman

Edwards.
16

Proposals were also considered, but rejected,

for linking the NCIC with databases operated

by the Internal Revenue Service, the Social

Security Administration, the Securities and

Exchange Commission, the Immigration and

Naturalization Service, and the Bureau of Alcohol, Tobacco, and Firearms. These proposals,

if accepted, would have allowed wide opportunities to aggregate information about almost

any individual through computer matching.

The APB did approve on-line linkages to the

files of the Bureau of Prisons, the FE I criminal history files, the Canadian motor vehicle

registration files, the files of the Canadian version of NCIC, and the “modus operandi” files

of the FBI’s Violent Criminal Apprehension

Program. These linkages should improve the

usefulness of NCIC to law enforcement officers

without raising serious new concerns about

privacy and civil liberties.

The APB-approved proposals must be accepted by the FBI Director, and then will become part of the “user requirements” for redesign of NCIC computers and software in the

next 2 years, subject to congressional oversight.

It is probably impossible for statutory law

on privacy and civil liberties to keep up with

the rapid development or improvement of surveillance technologies and computer data management technologies. Thus Congress and society will be forced by recurring challenges to

reexamine and reinterpret the application of

Fourth Amendment protections as technology

continues to change.

DNA TYPING

DNA (deoxyribonucleic acid) is the basic

genetic material, found in every cell of the

body. DNA itself is made up of four nucleotides, arranged in two long strands. The order

in which the four nucleotides fall along the

strand of DNA varies. The chemical structure

of the nucleotides (labeled A, G, C, and T) are

the same in every person, but the nucleotides

are sequenced in a different pattern in each individual; only identical twins have been found

to share common DNA patterns. Molecular biologists have developed a test in which the

DNA is examined and mapped to determine

the sequencing of nucleotides as a method of

personal identification.16 This is called DNA

typing; by analogy it is sometimes spoken of

as DNA fingerprinting.

Dr. Alec J. Jeffreys, of the University of Leicester in England, working with two other scientists from the British Home Office’s ForenIbpe@r GM, “A New Method for Sex Determination of the

Donor of Forensic Samples Using a Recombinant DNA Probe, ”

Ekctrophomsis, vol. 8, 1987, pp. 35-38. Peter Gill, Joan Lygo,

Susan Fowler, and David J. Werrett, “An Evaluation of DNA

Fingerprinting for Forensic Purposes, ” Ekctrophoresis, vol. 8,

1987, pp. 38-44. Barbara E. Dodd, “DNA Fingerprinting in Matters of Family and Crime, ” Nature, vol. 318, Dec. 12, 1985, pp.

506-507.

sic Science Service, first adapted DNA typing

for police use. The test quickly proved useful

in determining paternity. In the United States,

one of the several companies offering DNA

paternity tests reports that it has performed

5,000 of them since 1982.17

The technique was quickly used in criminal

cases. In a multiple rape-murder case in England, a suspect was cleared when DNA typing of his blood and of semen taken from the

victims’ bodies proved that he could not have

been the rapist.18 Police then urged all men in

the community between the age of 13 and 30

to provide a blood sample for analysis. Their

theory was that about 60 percent of the samples provided could be eliminated by simple

blood tests, and the rest would be subjected

17’’ Admission of DNA Fingerprints Prompts Queries, ” The

National Law Journal, Jan. 18, 1988. In a recent case in England, DNA typing was used to establish maternity. British authorities denied entry into Britain to a Ghanian boy, basing

this action on their doubt that the woman claiming to be his

mother was in fact his mother. DNA typing “confirmed the relationship because the minisatellites detected by the (DNA) probes

are so hypervariable that the chance of a sister of the alleged

mother sharing all the maternal specific bands of the child” was

extremely remote, See B,E. Dodd, op. cit., footnote 16.

1~Anthony Schtitz, “Murder on Black Pad, ” Hippocrates,

vol. 2, No. 1, January/February 1988, pp. 48-58.
17

to DNA typing. As the police hoped, however,

it was not necessary to examine the DNA of

1,600 men. Even though in England these

blood samples could only be acquired on a

voluntary basis, one man, in order to clear himself, persuaded a friend to give blood in his

place and under his name. The police were

tipped off, and the man later confessed to the

murders.

In England genetic typing is accepted as conclusive evidence.19 Its status in the United

States is less clear-cut at this time. In a recent

case in Florida, a judge admitted DNA “fingerprints” as evidence in a rape case. Scientists testified that semen found in the cervix

of the rape victim was “a perfect match” to

that of the accused, who could not be identified by the victim and had offered an alibi. The

accused man was convicted.20 DNA prints

have also been admitted as evidence by judges

in Oklahoma, Florida, New York, and Pennsylvania. According to an Associated Press account, most of the defendants who have been

confronted with such evidence have pleaded

guilty .21

Experts believe the test will be useful in rape,

homicides, and other investigations where

blood or semen evidence can often be retrieved.

There are problems, however, with DNA typing for police investigations. One of them is

that it now takes about 2 weeks. In addition,

a relatively large amount of blood or semen

is required, which is a difficulty in using the

19 Accor~g to recent news reports; ‘= “having Holmes in

the Dust, ” Newsweek, Oct. 26, 1987, p. 81.

“’Admission of DNA Fingerprints Prompts Queries,” The

IVationa.lLawJournal (Associated Press), Jan. 18, 1988; the case

cited is State v. Andrews, CR87-1659 (Fla. Cir. Ct.).

21’’ Admission of DNA Fingerprints Prompts Queries, ” IVational Law Journal, Jan. 18, 1988, p. 42. See also, Kirk Johnson, “DNA ‘Fingerprinting’ Tests Becoming a Factor in Courts,

The New York Zl”mes, Feb. 7, 1988, p. 1; Alan Dershowitz,

“Crime and the Stuff of Life,” Washington !ll”mes, Dec. 8,1987,

p. F3; and Janny Scott, “Blood, Semen Tests Likely To Have

Greater Use in Court, ” Los Angeles Times, Nov. 22, 1987, pt.

2, p. 1.

test in homicide and rape cases. In a recent

rape case in the District of Columbia, which

had to be retried 5 years after the first trial

and conviction, a semen sample which had been

collected from the victim’s body at the time

of the crime proved to be both too small and

too deteriorated from aging, to be useful.22

Federal Bureau of Investigation scientists

hope that they will be able to overcome these

limitations with further development of the

technique.

No case involving DNA evidence has yet

reached the Supreme Court. Courts have ruled

that blood extraction can be compelled, by a

warrant, for the purpose of criminal investigations if there is a showing of probable cause.

In other words, given the proper procedures

using a DNA probe might not necessarily be

“an unreasonable search and seizure” under

the Fourth Amendment, nor would it necessarily constitute self-incrimination under current precedents.23 However, as an earlier

OTA report has pointed out,

. . . (t)he more personal or intimate the information that is gathered, the more intrusive the

surveillance technique and the greater the

threat to civil liberties.24

In June of 1987, the Advisory Policy Board

of the FBI’s National Crime Information Center considered a proposal that records kept by

NCIC and used in tracking people who have

been accused of crimes or who are missing, be

expanded to include the capability for storing,

transmitting, and matching the DNA characteristics of these persons, but this proposal was

rejected. 25

22b Hockstader, “DNA ‘Fingerprinting’ Inconclusive in

Scott Trial,” The Washington Post, Feb. 16, 1988, p. All.

23schmer~r v. c~-fom-a, 384 U.S. 757, 86 S. Ct. 1826, 16

L. Ed. 2nd 908 (1966).

24U.S. Congress, Office of Technology Assessment, Federal

Government Information Technology: EZectrorzz”c Surveiffance

and Civil li”herties, OTA-CIT-293 (Washington, DC: U.S. Government Printing Office, 1985), p. 22.

25 Edwin& op. Cit., footnote 14”
18

AUTOMATED FINGERPRINT IDENTIFICATION SYSTEMS

On February 20, 1978, 48-year-old Miriam

Slamovich, a survivor of Nazi concentration

camps, encountered a burglar in the bedroom

of her San Francisco home. The intruder panicked and shot Mrs. Slamovich in the face. She

died a month later. The crime scene investigators assigned to her case had little hope of finding the murderer—Officers Ken Moses and

Walter Ilhe had no leads or suspects, only fingerprints left on the windowsill and bedroom

window of Mrs. Slamovich’s home.26

Returning to the police department, Moses

and Ihle began the tedious and frustrating

process of comparing the latent prints with the

thousands of rolled fingerprints cards on file.

The odds of finding a match in a database with

more than 300,000 prints were remote, but over

the next 6 years the officers faithfully spent

thousands of hours trying, driven by rage that

Miriam Slamovich could survive the brutality of the concentration camps, only to be fatally shot in her own home by an intruder.

26TM~ account was provid~ by the SEARCH Group) Inc”~

“New Technologies in Criminal Justice: An Appraisal,” contractor report prepared for the Office of Technology Assessment, 1987.

Fingerprint

INK

In 1984, the city of San Francisco installed

a new Automated Fingerprint Identification

System (AFIS). Moses decided to test the latent prints of Mrs. Slamovich’s killer, which

had been sitting on his desk for 6 years. Once

fed into the computer, a match was found in

less than 6 minutes. The crime scene prints

matched those of Leoncio Saulney, a young

computer operator who had once been arrested

and booked on a minor trespassing charge.

Saulney was arrested, and at first denied ever

having been in the Slamovich home; when confronted with the fingerprint evidence, he confessed to the crime and pled guilty to first degree murder.

The newest generation of AFIS has revolutionized fingerprint identification technology. 27 The heart of AFIS technology is the

ability of a computer to scan and digitize finzTmere me ~latively few publications on AFIS technology.

See T.F. Wilson, “Automated Fingerprint Identification Systems,” Law Enforcement Technology, August-September 1986;

U.S. Department of Justice, Bureau of Justice Statistics, Technology and Pof.J”cy Issues (Washington, DC, forthcoming); and

Proc%ed@s of a SEARCH National Conference on Automated

brPfit ~den~fi~~on Sys*ms, hmms City, MO, Feb. 26-

28, 1986 (Sacramento, CA: SEARCH Group, Inc., transcript).

Scanner Replaces 90-Year-Old Practice of Inking and Rolling Fingerprints

A proprietary electro-optical system scans and digitizes live fingerprints, eliminating inking and rolling. Ten-print

fingerprint cards are generated for standard law enforcement use.

SOURCE: Fingermatrix, Inc., White Plains, NY,
19

gerprints, to automatically create a spatial geometry or map of the unique ridge patterns

and minutiae of the prints, and to translate

this spatial relationship into a binary code for

the computer’s searching algorithm. Making

incredibly fine distinctions among literally

thousands or millions of prints, an AFIS computer can in a matter of minutes compare a

new fingerprint with the massive collections

of prints on file and make identifications that

previously were possible only through a timeconsuming and error-prone process of manual

comparison.

This has greatly increased the speed and accuracy of ten-print processing and has made

it possible to conduct “cold searches” (i.e., a

search where there are no suspects or other

identifying information other than the crime

scene prints) against very large fingerprint

files.28 The search time in a file of less than

500,000 prints may range from a matter of minutes to about one-half hour.29

A somewhat newer development in AFIS is

image storage and retrieval, a byproduct of the

initial conversion process by which the search

print is read into the system in digital form.

It allows the digitized fingerprint images to

be stored on an optical disk and retrieved later,

with the digitized search prints and the retrieved image of the candidate file prints appearing side by side on the operator’s screen

for comparison. A less costly alternative to image retrieval is a microfilm and microfiche

reader.

2~Kennet,h R. Moses, “A Consumer’s Guide to Fingerprint

Computers, ” Identification News, June 1986, pp. 5-10.

29prWW~g~ of a SEARCH National Conference on Automated Fingerprints Identification Systems, op.cit., footnote 25.

During the search for a match, the computer uses a scoring system that assigns points to each of the criteria set by a technician, who also sets a threshold score above which he has assurance that a match has produced a hit. Thus, AFIS makes no

final decisions on identity. While the score may virtually guarantee a hit, only the trained eye of the fingerprint technician

will make the final verification. The use of the fingerprint as

evidence in court requires the fingerprint technician to prove,

by a comparison of measurements and points of minutiae on

the latent and file prints, that the prints match. For verification, an AFIS assists, but does not replace, the fingerprint

expert.

One AFIS computer cannot search the files

of a different manufacturer’s AFIS computer,

but this is not a big problem. All the AFIS

computer needs from another computer is digitized fingerprint image data to make its own

search.30

Facsimile is used for transmitting fingerprint images from remote sites to the AFIS

computer. The facsimile prints must be of high

quality to substitute for the inked impressions

in the AFIS, but this quality is increasingly

available.

Linked photographic and telecommunications technologies are also being used to lift

and transmit prints to the AFIS. The use of

a remote television camera linked to telecommunications lines is under trial. A device attached to the camera converts the photographic image into digital data and sends the

information via modem directly from the crime

scene to the AFIS computer at the State central repository. A fingerprint sent by photographic transmission from a crime scene to a

central location within a State could be processed instantly, thus allowing an all-pointsbulletin to be issued within minutes.

The identification of latent prints by AFIS

begins at the crime scene where the fingerprints must be detected and developed.31

When a finger touches an object, it leaves a

residue of water, oils, salt, amino acids, and

other chemicals. This latent print will have the

ridge patterns and minutiae needed to make

comparisons with file prints. However, fingersONatio~~ BUreaU of Standards, ~oposed American ~atiomd Standard IAta Format for the Interchange of Fingerprint Information (Washington, DC: National Bureau of Standards, Apr. 7, 1986). On Aug. 25, 1986, the American National

Standards Institute accepted the standard entitled “Data Format for the Interchange of Fingerprint Information” (ANSI/

NBS/ICST-l-1986), developed by the Institute for Computer

Sciences and Technology of the National Bureau of Standards

(NBS). This NBS standard will probably pave the way for the

sharing of fingerprint data among law enforcement agencies

in a form that can be utilized by all AFIS systems.

31 For a general reference on classification, pattern interpretation, latent fingerprint lifting techniques, and other aspects

of fingerprint identification work, see U.S. Department of Justice, Federal Bureau of Investigation, The Sa”ence of Fingerpn”nts: Classification and Uses (Washington, DC: U.S. Department of Justice, 1977),
20

prints often can not be made visible on certain

surfaces. The traditional method of carbon

dusting powder requires relatively fresh prints

with ample amounts of residue. Powder works

well on glass and hard surfaces, but not on paper, fabric, or other porous surfaces that absorb the moisture and salts left by the fingers.

Manual identification of those prints meet with

little success.

Today, however, a revolution is taking place

in the detecting and “lifting” of latent prints,

with the use of chemicals and lasers. For example, ninhydrin, an oxidizing agent, activates

the amino acids and makes the ridge patterns

visible. It works effectively on surfaces such

as paper. Other chemicals restore moisture to

faint prints, making them more visible. Cyanoacrylate, which is common household “super

glue, ” attaches itself in its gaseous state to

fingerprint chemicals, turns them white, and

hardens them. It works well even on fabric and

plastic. 32

Lasers are being used to detect fingerprints

on surfaces on which dusting or the use of

chemicals has proven ineffective. An intense

flood of blue laser light can detect fluorescence

in the chemicals found in fingerprint residue,

even in very small quantities. The FBI used

a laser to detect a fingerprint of a Nazi war

criminal on a postcard after 40 years.33

Lasers are now used mostly in the laboratory,

but smaller, more portable units are being

tested at crime scenes.

szHeW c. Lee md R.E. Gaenssien, “Cyanoacrylate, ‘Super

Glue’ for Latent Fingerprints,” The Identification Offhr, spring

1985, pp. 8-11.

33T F Wilson ~d p.L. Woodmd, U.S. Depmtment ‘f ‘

u s -

. .

tice, Bureau of Justice Statistics, Automated Fingwprint 1ndentification Systems–Technology and PoLicy Issues (Washington, DC: U.S. Department of Justice, forthcoming), p. 5.

As fingerprint matching becomes a more

powerful tool of criminal identification and as

matching from large files becomes faster and

easier, there will be increasing pressure to expand the files of law enforcement agencies. This

is likely to lead to controversies over whether

fingerprints that were collected for other purposes should be included in the files. Government employees, military personnel, and juveniles may be routinely fingerprinted for reasons

having nothing to do with crime. Congress or

the courts may be asked to decide whether this

violates the constitutional right to privacy.

The use of fingerprints collected for purposes

not related to criminal justice raises the issue

of voluntary consent; without this consent the

use would be a “search” under the Fourth

Amendment. In Davis v. Mississippi,34 fingerprints collected in the course of an unlawful detention were held to be inadmissible in

court. The question may also be raised as to

whether, under the 14th Amendment’s requirement of due process, it would be necessary to

tell people that their fingerprints, voluntarily

given in another context, were to be used in

a criminal investigation.

The broader question, which also applies to

the biometric identification systems discussed

below, is whether the new technology is making everyone subject at all times to an electronic search even where traditional police

searches would require a warrant issued on the

basis of probable cause.

34394 U.S. 721 (1969).

BIOMETRIC SECURITY SYSTEMS

Recent advances in microchip design are be- patterns.35 One of the early commercially sucing used in devices that verify the identity of

persons seeking access to controlled or classi- ~li’or ~ner~ diswssions of contemporary biometric t4?chlIolfied data or to secured areas. They include de- ogy see M. Thompson, “In Search of Security’s Future,” Secuvices that read fingerprints, palm prints, hand rity WorJd, vol. 23, January 1986, pp. 26-32; and M. Thompson, “The Newest Wave: Biometric Security, Seam”ty World,

geometry, and voice and retinal blood vessel vol. 22, February 1985, pp. 39-43.
21

cessful devices measures the spatial geometry

of the hand (i.e., the length, curvature, and webbing between fingers). Hand geometry data can

be stored within a microcomputer attached to

the device or on a separate card. The device

is currently used in nuclear facilities, government installations, banks, automatic teller

machines, and even the cafeteria of a major

university.

Other biometric devices read individual fingerprints or palm prints directly from an individual’s hand. Some systems can create the

standard ten-print fingerprint cards generally

used by police departments and the FBI, allowing faster processing and eliminating the

mess and smudging of inked prints. A system

now under development will use palm prints.

Another innovative strategy relies on the

pattern of blood vessels in the retina of the eye,

which can easily be seen behind the pupil. The

blood vessel pattern appears to be unique to

each individual. With one device, for example,

a camera scans the retina with a safe, low-level

infrared light, which is fed back to a photo sensor. The resulting waveform is then digitized,

computer processed, and stored as a signature

template for subsequent comparisons.

A system for computerized handwriting

analysis, currently under development, would

analyze a signature using a variety of characteristics such as speed, pressure, and conformation, and compare it with the authorized signature on file. This technology also has great

potential in the commercial world, most notably in banking and the use of credit cards, as

well as in crime detection.

Voice recognition systems, though under development for many years, are not yet sufficiently accurate for broad commercial or security uses. Because of the great variability in

a person’s voice over time and the fact that

it can be affected by air quality, physical illness, and mental attitude, the systems remain

error prone. Nevertheless, interest in this technology continues.36 At least two companies

have developed voice verification applications

for use with electronic monitoring systems.

There are conflicting reports about error rates

with most of these devices and little can be

said as yet about their acceptance by courts.

Scanning technology used in criminal investigations as a way of establishing or verifying

identity would perhaps be subject to the same

challenges as the matching of fingerprints collected for non-crime-related purposes, as discussed above. However, they are intended primarily to secure entry and access, where their

use is governed by contractual agreements between employers and employees, and it is not

clear how they may be adapted for identification of criminals.

3%. M. Menke, “Voic&Recognition Applications Will Increase in 1987, ” Government Computer News, vol. 6, No. 1,

Jan. 16, 1987, pp. 44-45. Also see R. Hager, “Breakthroughs

Said To Be Ahead for Voice Recognition, ” Government Computer News, vol. 5, No. 16, Aug. 29, 1986, p. 40.

“LESS-THAN-LETHAL” WEAPONS

Law enforcement officials recognize that control. A nightstick may be inadequate, but

there is a dangerous gap in the range of tools use of a gun risks unnecessary injury or loss

available to them.37 The use of a weapon is of life and danger to bystanders as well as to

necessary in many confrontations, to stop a the policeman and the suspect. Ideally, policefleeing suspect, to deal with terrorist and hos- men should have a range of non-lethal or lesstage standoffs, to subdue violent or emotion- than-lethal weapons appropriate to such situally disturbed persons, and sometimes for riot ations.

Some progress is being made in developing sTMa~-i~ in this Section not otherwise cited, relies on Shemi

Sweetman, Report on the Attorney General’s Conference on Less less-than-lethal weapons, but it has been hamThan Lethzd Weapons (Washington, DC: U.S. Department of pered by a number of factors. Acceptable limits

Justice, National Institute of Justice, March 1987). of risk must be set, since any force used against
22

a person can potentially hurt or kill. Tolerances

vary widely among people, especially in relation to size, health, and drug use. Environmental factors can greatly increase the danger to those against whom a weapon is used.

Less-than-lethal weapons will endanger the

law officer when they are at least as reliable,

accurate, and easy to use as conventional weapons. Their potential for misuse or abusive use

must be minimal, and the weapons must be

acceptable to both users and the public. One

problem in development has been the need to

test and demonstrate the usefulness of the

weapons on people.

Less-than-lethal weapons currently being

used or under development include:38

●

●

●

●

●

●

electrical devices that deliver a disabling

but nonfatal shock–the Taser, the stun

gun, and the Talon (a glove with an electrical pulse generator in the palm);

chemical devices that work either on the

central nervous system (e.g., tranquilizers)

or peripherally on the body (e.g., tear gas

or mace);

impact devices that include the water cannon or fire hose and various launched soft

projectiles, such as rubber bullets, soft

rubber rings, bean bags, and small water

balloons, some of which may also be filled

with chemicals such as mace;

combinations of the above types might include impact devices that deliver a tranquilizing shot; such weapons are now used

by conservation officials in the capture of

wild animals for inspection, marking, or

treatment;

marking devices, such as pistols that fire

a blob of paint for later identification of

fleeing suspects or vehicles; and

miscellaneous other devices such as explosive light and sound grenades for disorienting people, trip devices, and capture

nets.

3’%ome but not all of these devices are described in Sweetman, ibid.

Whenever police kill a suspect or bystander

in the process of making an arrest or halting

a crime in progress, serious questions arise

about the possibility of use of excessive force.

This is especially true when the person killed

was not guilty of crime, or the crime being committed (or suspected) did not involve direct

threat to life, or would not merit capital punishment. Less-than-lethal weapons should thus

contribute to protection of constitutional values

of law enforcement, due process, and rights of

prisoners. That assumes, however, that the

new weapons will not be used to exert physical force where it would not otherwise be

acceptable—for example, to break up or control “mobs” that are really people exercising

their constitutional right of assembly and protest, or to “subdue” suspects that are not really

resisting arrest.

When and if nonlethal weapons become effective and widely available, a constitutional

challenge could arise regarding the use of lethal

weapons; in that situation the use of deadly

force by police might be challenged as an unjustified deprivation of life, liberty, or civil

rights, as deprivation of due process, or as cruel

and unusual punishment. A recent Supreme

Court case held that deadly force may not be

used unless it is necessary to prevent an escape and then only when the officer has probable cause to believe that a suspect poses a

significant threat of death or serious physical

injury to the officer or to others.39 Otherwise,

the use of deadly force maybe “an unreasonable seizure” under the Fourth Amendment.

39 For exmple, the supreme till!% tied in ~e~es~ ‘- ‘Wrier, 471 U.S. 1 (1985) that use of deadly force in making an

arrest, without probable cause to believe the suspect was dangerous, violated the Fourth Amendment prohibition on unreasonable seizures. Previously courts had used a complicated

standard based on the 14th Amendment Due Process Clause,

inquiring whether the force used caused severe injury, that it

was grossly disproportionate to the need for action, and that

it was so malicious as to shock the conscious. See for follow-up,

Martha Middlet.on, “Fourth Amendment Rights Are Expanded

in Arrests, ” National Law Journal, Oct. 5, 1987.
Chapter 3

New Technology for Decisionmaking:

Social Sciences and Computers

In social sciences (including cognitive and

behavioral sciences), research is increasingly

resulting indirect and rapid practical applications that have discernible effects on social institutions and behavior and the life of individuals. In this regard, the social sciences are now

following the model of the physical and biological sciences. Social science research results,

expressed most often in the form of statistical probabilities, generalized observations, or

theoretical formulations, are used in developing computer models and simulations that are

in turn used for planning, decisionmaking aids

such as formal guidelines, and resource allocations. In law enforcement and administration of criminal justice, this coming together

of developments in social science with advances in computer hardware and software is

already having profound effects by shifting the

emphasis toward science-based expertise versus

experience, pragmatism, and trial-and-error as

the basis for processes and procedures.

In the area of criminal justice, new developments in social science, embodied in predictive

models and guidelines, may have effects at

least as significant as the effects of applications of physical and biological sciences. If

properly applied, they have much potential for

reducing the undesirable effects of excessive

discretion and variability in decisionmaking,

which often become discriminatory. But one

risk is that they will make the process too rigid

or mechanical. Another risk is that these social technologies could be misused in discriminatory ways. They are developed on the basis of information about patterns of behavior

across large groups or populations. They

should be treated with care in dealing withindividuals.

A third concern is that reliance on science

and technology may encourage decisionmakers

to think of people only as anonymous “offenders” or impersonal “cases.”

The criminal justice system operates during

different stages of the process at different government levels. Law enforcement is generally

a municipal or county function. Prosecution

usually occurs at the county or district level.

Corrections is usually a State function. Probation decisions are made at either the State

or county level, sometimes by the judiciary and

sometimes by an executive branch agency.

Officials in law enforcement, prosecution, the

courts, corrections, and probation have to decide whom to investigate and prosecute, who

is too dangerous to be allowed bail, who might

flee to avoid prosecution, or who might commit new crimes if given parole. At each stage

they must exercise discretion. Officials have

increasingly come to rely on criminal justice

research to assist in making these decisions.

Police have the broadest range of discretion

in determining whom they will arrest and formally charge with a crime. From among those

arrested, prosecutors decide whom they will

bring to trial and the number and type of

charges they will pursue.1 The courts subsequently decide the fate of those brought to

trial, while corrections deals with those who

have been found guilty or have pleaded guilty

and have been sentenced by the courts.

The whole process, a flow of offenders from

one agency to the next, ties these functionally

and structurally distinct agencies into a coherent whole that is our “system” of justice. While

this channeling process successively reduces

the number of people over whom authority is

exercised and decisions are made, each agency

retains considerable discretion.

lprogecutorg frequently also have the power to emP~el

grand juries to investigate crime as well as to initiate prosecution from private complaints. F.W. Miller, Prosecution The lk

cision To Charge a Suspect With a Crime (Boston, MA: Little,

Brown & Co., 1970).

23
24

The exercise of discretion within the criminal justice system has traditionally been hidden from public view, guided only by the general principles contained in Federal and State

constitutions, laws, historical practice, and the

intuition of the decisionmaker at each stage.

There are many problems associated with the

exercise of broad and virtually unfettered discretion. One is inconsistency, both across cases

with the same decisionmaker and across different decisionmakers. Those who make decisions

are not often required to state why they decided how they did, and what factors they

considered. Nor are they required to establish

procedures that consistently and accurately

measure those factors.

Broad social values determine the variables

considered relevant in reaching decisions. At

various times in American history, social policy toward criminals has emphasized:

1. retribution and punishment,

Z. rehabilitation, and

3. incapacitation or incarceration (keep them

off the streets).

With rehabilitation, prediction of future behavior is important both in designing the penalty and judging its probability of success. If

retribution governs the administration of justice, predicting future behavior becomes unimportant; the penalty should be that which fits

the crime committed (the criminal’s “just deserts”). Where selective incapacitation is the

controlling social policy, predictions of future

behavior are more important, for the objective

is to isolate those who are dangerous.2

The daily administration of justice thus necessarily entails a considerable amount of prediction of behavior.3 When one predicts that

an offender is dangerous and in fact he is not

(a false positive), the consequence is injustice,

without reducing the likelihood of future crime.

Prediction of success on parole for an offender

who subsequently commits a crime (a false negative) fails to prevent additional crime and thus

creates a new injury.

2Norval Morris and Marc Miller, U.S. Department of Justice,

National Institute of Justice, “Predictions of Dangerousness

in the Criminal Law, ” Research in Br.z”ef, March 1985.

3S.D. Gottfredson and D.M. Gottfredson, “Accuracy of

Prediction Models,” Cm”minal Careers and “Career Cn”ininals, ”

vol. 2, A. Blumstein, et al. (eds.) (Washington, DC: National

Academy Press, 1986), pp. 212-291, at pp. 219-221.

PREDICTIVE MODELS

A number of predictive models have been

developed to help in police investigations, or

in allocating limited police resources across

competing needs and priorities. The Police Executive Research Forum has developed a model

to predict which burglary cases are solvable,

using a salient factor index developed through

computer analysis of old case files. The developers claim 90 percent accuracy. The Illinois

Criminal Justice Information Authority is

analyzing historical data on crimes in specific

communities to develop methods of predicting their incidence and location.4

Much research is focused on predictors of

criminal recidivism. These studies generally

iThe Compder, the newslet~r of the Illinois ti~Justice

Information Authority, vol. 7, No. 3, fall 1986.

focus on such factors as prior criminal history,

age, race, marital status, place of residence,

employment, and other demographic variables.

Unfortunately, both newspaper reporters and

the general public are often either uninformed

or careless about the differences between correlation and causality. It then becomes easy for

conclusions to be misused in formulating public policy, resulting in discriminatory actions

against some racial, ethnic, or age groups.5

Research on recidivism increasingly is focusing on the longitudinal sequence of offenses

that comprise an offender’s “criminal career.”

A consistent finding is that a small core of

6For a thought~~d subtle analysis of this issue, =D~el

Patrick Moynihan, “Social Science. and the Courts,” The Public Interest, No. 54, winter 1979, pp. 12-31.
25

recalcitrant and very active offenders are responsible for a disproportionately large share

of crime. In 1986, a National Research Council Panel reported that “the targeting of highrate offenders” could produce modest reductions in crime. It recommended that all criminal justice decisions give greater weight to information about juvenile court records, prior

criminal activity, and evidence of serious drug

use.6 This panel found that age, race, and sex

were not very helpful in distinguishing the career criminal from other offenders.7

The real dilemma nevertheless is that in

some predictive models, socioeconomic status,

race, age, and similar variables have been

shown in the aggregate to be useful surrogate

indicators; their use may violate sound social

policy and constitutional doctrine, but their

removal may weaken the usefulness of the

models.

These findings have significant policy implications, particularly when considered in

light of the burgeoning prison populations that

today confront most States and localities. The

number of prisoners housed in State and local

prisons has significantly outpaced capacity.8

GA BIU~tih, J. cohen, J. Roth, and C. Visher (eds. ), Cri~”-

md Careers and “Career Crimz”mds, ” vols. 1 and 2 (Washington, DC: National Academy Press, 1986); A. Blumstein, D. Barrington, and S. Moitra, “Delinquency Careers: Innocents,

Desisters, and Persisters, ” in M. Tonry and N. Morris (eds.),

Crime and Justice: An Annual Review of Research, vol. 6 (Chicago, IL: University of Chicago Press, 1985); P. Greenwood,

with A. Abrahamse, selective Incapacitation (Santa Monica,

CA: Rand Corp., 1982); J, Chaiken and M. Chaiken, Van”eties

of Criminal Behavior (Santa Monica, CA: Rand Corp., 1982);

J. Petersilia, “Criminal Career Research: A Review of Recent

Evidence,” N. Morris and M. Tonry (eds,), Crime and Justice:

An Annual Review of Research, vol. 2 (Chicago, IL: University

of Chicago Press, 1980); and J. Petersilia, P. Greenwood, and

M. Lavin, Crixm”nal Careers of Habitual Felons (Santa Monica,

CA: Rand Corp., 1977).

7A Von H~sch, Do~g Justi~ (New York, NY: H~ & ‘mg~

1973), p. 107; Twentieth Century Task Force on Criminal Sentencing, Fair and C&kin Punz”shment (New York, NY: McGrawHill, 1976); N. Morris, The Future oflmprisonment (Chicago,

IL: University of Chicago Press, 1974); J. Feinberg, Doing&

Deserving: Essays in the Theory of Responsibih”ty (Princeton,

NJ: Princeton University Press, 1970); and American Friends

Service Committee, Struggle for Justice: A Report on Crime

and Punishment in Amen”cs (New York, NY: Hill& Wang, 1971).

8u s Depmtment of Justice, Bureau of Justice Statistic%

Pop~a”tion Density in State Prisons (Washington, DC: U.S. Department of Justice, 1986), as reported in Crimina/Justi”ce lVewsletter 18, Jan. 2, 1987, p. 4.

In an effort to reduce crime in the most costeffective way, some jurisdictions are developing innovative strategies for apprehending and

prosecuting persistent offenders, based on the

models for predicting recidivism. The Repeat

Offender Project of the Washington, D.C. police department is one example of offender targeting in which the police concentrated investigative resources on apprehending offenders

with characteristics indicating a high probability of repeated offenses.9 The project is generally considered to have proven effective. The

police department worked closely with the U.S.

Attorney’s office and the American Civil Liberties Union to ensure that their tactics met

constitutional standards.

If the police in any way discriminate, for example, by enforcing a local ordinance only

against members of a certain minority group,

this enforcement would violate the constitutional guarantee of “equal protection of the

laws." 10 In regard to both law enforcement

and administrative rule-making, statistical

proof of discriminatory effect is usually relevant but rarely determinative, although where

the statistical proof is overwhelming it may

be sufficient to establish a prima facie case.

The critical question is whether those who

make decisions are using some form of suspect

criterion and thereby establishing a classification within the law or its application.

It is more difficult to show such intent on

the part of legislative law-making. The Supreme Court has held that a criterion for government employment, such as a score on a written test, is not necessarily discriminatory even

if it eliminates more candidates of one race than

of another.11

gFor a ~nt ~~ew of other such programs, see W. GaY and

W. Bowers, U.S. Department of Justice, Targeting Law Enforcement Resources: The Career Crimin al Focus (Washington,

DC: U.S. Department of Justice, 1985).

101n yi~ ~. v. Hop~g, 118 U.S. 356 (1886) the Court held

unconstitutional the enforcement of a San Francisco ordimmce

banning the operating of hand laundries in wooden buildings.

The vast majority of such laundries were owned and operated

by Chinese; it was shown that all non-Oriental launderers who

had applied for an exemption from the statute had received one,

while no Chinese who applied had been granted one.

llWashjn@on v. Davis, 426 U.S. 229 (1976).
26

A growing volume of research is intended

to aid police, prosecutors, and other criminal

justice officials in deciding whom to arrest,

charge, and parole. But there are ethical questions in the use of prediction. Justice must be

equal and fair. It should preclude consideration of racial and ethnic variables which are

beyond the offender’s control, since that would

violate concepts of due process and equal protection. Some scientists are said to have grave

reservations about predictive models that use

psychological and social factors in predicting

behavior, as they might be used in criminal justice decisions.12

12Alm J. To~~, “pgycholo= and the Constitution, ” Psychology Today, September 1987, pp. 48-50.

Social scientists have recently been studying the working of the jury system, a social

technology that has been in use for thousands

of years. 13 By means of statistical analysis

and computer simulation, they can measure

the effects of the demographic characteristics

of jurors, their known attitudes (e.g., toward

the death penalty), how jurors are chosen, and

how they voted. Defense lawyers and prosecutors use the results of such research to develop elaborate strategies for maximizing the

chances of winning a desired verdict.

lsAm~d Urken and Stephen Traflet, “optimal JUrY Dssign, ” Jurimetrics, Journal of the American Bar Association,

vol. 24, spring 1984, p. 218.

DECISIONMAKING GUIDELINES

Other innovative tools have been developed

to aid in the complex process of criminal justice decisionmaking. In setting bail judges

must consider the likelihood that a defendant

will appear at trial. In sentencing, judges may

evaluate the danger an offender poses to society as well as his rehabilitative potential. Similarly, correctional officials and parole boards

must evaluate the likelihood that an offender

will commit another crime after being released

from prison.

With regard to sentencing, former U.S. District Judge Marvin Frankel noted in 1973:

We have in our country virtually no legislative declarations of the principles justifying

criminal sanctions. . . [T]his is much more than

an aesthetically regrettable lack. It is the omission of foundation stones, without which no

stable or reliable structure is possible. ”14

It has been widely recognized for many years

that there has been great disparity in parole

decisions and in the setting of sentences for

similar crimes, both across jurisdictions and

within most jurisdictions. Many experts and

public interest advocates have pointed out that

14M.E. Fr~el, cr~~ Sentences: Law Without Order

(New York, NY: Hill & Wang, 1973) p. 107.

parole and sentencing decisions are often arbitrary, capricious, and unfair. As a result, innovative tools have been used to develop guidelines for bail, sentencing, and parole that have

strengthened the rationality and consistency

of such decisions.

The United States Board of Parole (now the

U.S. Parole Commission) began to develop

guidelines in 1972 that would structure and

guide its exercise of discretion.15 The first

task was to model how decisions were then

made in order to identify what factors were

considered and their relative weights. Thus,

the guidelines reflected existing practices and

policies of the Parole Board.16

lsFor ~account of the research project ~d a description of

the guidelines produced, see D.M. Gottfredson, et al., Classification for Parole Decision Poli”cy (Washington, DC: U.S. Government Printing Office, 1978); D.M. Gottfredson, L.T. Wilkins,

and P.B. Hoffman, GuideLines for Parole and Sentencing: A PoZicy Control Method (Lexington, MA: D.C. Heath, 1978). Also

see M.R. Gottfredson and D.M. Gottfkedson, Decisiomnak”ng

in Criminal Justice: Toward the Rational Exercise of Discretion (Cambridge, MA: Ballinger, 1980).

l~he co~ssion identified three factors as primw in considering release on parole: 1) the seriousness of the conviction

offense, 2) the risk of recidivism if paroled, and 3) the inmate’s

institutional behavior. The offender’s parole prognosis (risk of

recidivism) was scored, based on variables which research demonstrated were accurate predictors of parole performance, in-
27

The guidelines that emerged were to be advisory in nature. The Board could decide to parole a prisoner based on factors that fell outside the recommended range, but they had to

provide written explanations of why the case

warranted deviation from the guidelines. This

became feedback which provided information

on how well the guidelines were working, suggesting areas needing possible modification.

To prevent the guidelines from becoming

rigid prescriptions, the Parole Board adopted

procedures for updating them on the basis of

systematic, regular feedback. This created a

process for changing the guidelines based on

experience .17

Critics questioned the propriety of some of

the variables chosen as salient factors in decisions.18 Due process and equal protection preclude consideration of race. A prisoner’s job

prospects and educational level may be predictive of parole performance, but they may

also be strongly correlated with race and/or

socioeconomic status. Using these “racially

tainted” 19 variables was seen by some critics

to be ethically improper if not unconstitutional.

Guidelines have been adopted by a growing

number of States over the years for dealing

with parole, bail, and sentencing.20 Congress

authorized the U.S. Sentencing Commission

in 1985 to create sentencing guidelines at the

— -— . —-

cluding criminal history, education, employment status, and

parole plans. The guidelines were designed as a simple matrix,

with offense seriousness ranked on the Y axis and the salient

factor score on the X axis. The intersection of the two scores

provided the commission with a suggested total amount of time

to be served before release on parole.

ITD M Gottfi~90n, L.T. Wilking, and P.B. Hoffmm, Gzu”d~

lines for” Parole and Sentencing: A Policy Control Method, op.

cit., footnote 16.

1

*J. Petersilia and S. Turner, Gw”deline-lkmd Justice: The

Implications for Racial Minorities (Santa Monica, CA: Rand

Corp., November 1985); J.C. Coffee, “The Repressed Issues of

Sentencing: Accountability, Predictability, and Equality in the

Era of the Sentencing Commission,” The Georgetown IJawJournaf 66 (1978), p. 975; and J.C. Coffee, “The Future of Sentencing Reform: Emerging Legal Issues in the Individualization of

Justice,” i’kficlu”gan Law Review 73 (1975).

lgpeter9ilia ~d firner, op. cit., footnote 19, P. 17“

ZOL T W~9, et al,, Sentenu”ng Gw”delz”nes: StruCtUH”ng Ju-

. .

dicial Discretion (Washington, DC: U.S. Government Printing

Office, February 1978).

Federal level.21 After 18 months of study, the

nine-member commission issued its guidelines

in April 1987. They are methodologically similar to the parole guidelines.22

Congress had provided that the guidelines

would take effect automatically unless Congress intervened after a period of congressional

review. The Commission can, through amendments, change or add to the initial set of guidelines. Critics say that Congress thereby delegated the power to legislate, and this is probably

unconstitutional. 23

Federal sentencing guidelines took effect

November 1, 1987. The guidelines virtually

eliminated Federal probation and alternative

sentencing (e.g., community service or electronically monitored home arrest, which is discussed later in this report). They also provided

for stiffer sentences than have been common

in recent years, especially for white collar

crime.

Sentencing guidelines are an alternative to

both fixed sentences and complete judicial discretion. The latter results in extremely wide

variations in sentences for the same crime,

while the former prevents judges from considering mitigating factors or factors that might

suggest a more severe sentence. With guidelines, judges retain discretion, but must put

on record their reasons for not following the

guidelines recommendation. Some judges suggest that this explicit rationale may make it

2128 u s.coAc 991-998 (West %lpp. 1985) [Wntencing co

mmission established]; U. S.C.A. 3551-3586 (West Supp. 1985)

[New Federal sentencing provisions].

22A crime is assi=~ a base score which is adjusted depending on a number of variables (e.g., the weapon used). The adjusted score is then located on a matrix, with the second axis

determined by the previous criminal record of the offender. The

result is a recommended length of sentence, expressed as a narrow range, e.g., 60 to 72 months.

23U.S. Sentencing Commission, Sentencing Guidelines and

Policy Statements [submitted to Congress Apr. 13, 1987, with

amendments submitted Apr. 13, 1987]; Supplementary Report

on the Iru’ti-al&ntencing Gw”delines snd PoA”cy Statements (June

18, 1987). For a representative critique of the commission’s work,

see Statement of H. Scott Wallace, legislative director, National

Association of Criminal Defense Lawyers, before the U.S. Senate Committee on the Judiciary, regarding Federal Sentencing

Guidelines, Oct. 22, 1987. For a summary see H. Scott Wallace, “Congressional Abdication, ” The National Law Journal,

Dec. 28, 1987–Jan. 4, 1988, p. 13.
28

more likely that a sentence be appealed, by suggesting strategies for attacking its rationale.

The sentencing guidelines, like those for parole, are likely to be examined closely to see

whether they create “classifications” or categories of people for special treatment, thus

violating constitutional guarantees of equal

protection. However, a statistical showing that

some groups or races are differentially affected

on a statistical basis would not in itself demonstrate an unconstitutional classification.

An alternative approach is prescriptive, and

seeks to develop guidelines based solely on policy choices of criminal justice officials, irrespective of past practices.24 Minnesota, for example, developed sentencing guidelines rooted in

retributive considerations.25 They excluded

predictions about the future behavior of an offender from consideration, concentrating instead on the seriousness of the offense and the

offender’s criminal history [the latter, however,

24K. Knapp, “Impact of the Minnesota Sentencing Guide

lines on Sentencing Practices,” Wmline Lawhview 5, (1982),

p. 237. For thorough discussions of methodological issues associated with designing descriptive guidelines, see F.M. Fisher

and J.B. Kadane, “Empirically Based Sentencing Guidelines

and Ethical Considerations, ” in A. Blumstein, et al., Research

on Senten~ The Search for Reform, vol. II (WaaMngton, DC:

National Academy Press, 1983), pp. 184-193; and R.F. Sparks,

“The Construction of sentencing Guidelines: A Methodological Critique,” Ibid., pp. 194-264. ~M~ew~ ~n~ncing Guid~~ commission, ~~. .

Report on the Development and Impact of the Minnesota Sentencing Guidelines July, 1982 (St. Paul, MN: Minnesota Sentencing Guidelines Commission), p. 5.

can be seen as a predictor of dangerous behavior].

Guidelines may promote an active public examination of the purposes underlying important criminal justice decisions, of the primary

objectives of our system of justice, and of

acceptable methods for obtaining these objectives. The guidelines seek to reduce disparity

in the administration of justice, since disparity violates constitutional rights of due process and equal protection.

The use of predictive factors in sentencing

decisions made by a jury has been allowed by

the Supreme Court, specifically in cases in

which there was psychiatric testimony about

the likelihood that a defendant would continue

to be of danger to the public.26 A decision in

May 1987 appears to have fully vindicated the

use of such predictions of behavior indecisions

about pretrial detention under the Bail Reform

Act of 1984.27 The Court specifically recognized that Congress passed the act because of

the “pressing societal problems of crimes committed by persons on release. ” In these cases,

however, the predictions were based on specific information about the offender as an individual rather than statistical data about

groups of people. The issue of suspect categories has not yet been laid to rest.

26B~fmt~. Es&#e, 463 U.S. 880, 77 L. Ed. 2nd 1090>103

S. Ct. 3383 (1983).

27.U.S. v. Salerno, 107 S. Ct. 2095, 55 U. S.L.W. 4663 (1987).

ARTIFICIAL INTELLIGENCE

Artificial intelligence is the computer emulation of human intelligence. Significant

progress toward application has been made in

four areas:

● natural language processing,

● computer vision,

● expert systems, and

● problem solving and planning.

After 30 years of research and development,

artificial intelligence (AI) has begun to yield

commercially available products= in the form

of expert systems. These are computer pro28For a Compmhensive review of artificial hbM@iXX4?, see ‘.

Barr and E. Feigenbaum, The Handbook of Artifiu”al MeU”-

gence, vols. 1-3 (Stanford, CA: HeUrisTech Press, 1982). Also

see R, Forsyth and C. Naylor, The Hitch-Hiker’s Gw”de to Artifia”td lntelh”~nce (London: Chapman& HaU/Methuen, 1986);

H.C. Mishkoff, Understanding Artifia”al IntelL@nce (Indianapolis, IN: Howard W. Sams & Co., 1985); W.B. Gevarter,

Intel.h”gent Machines: An Introductory Perspective of Artifia“al InteL!@nce and Roboti”cs (Englewood Cliffs, NJ: PrenticeHall, 1985); D. Peat, Arti&ialIntall@ncty How Machines Think

(New York, NY: Baen Enterprises, 1985); and P.H. Winston

and K.A. Predergast (eds.) The Al Business: Cornmera”td Uses

ofArtifl”ci-zd Meligence (Cambridge, MA: The MIT Press, 1984).
29

grams or software that embody human expertise in a particular domain of knowledge. They

are, in a figurative sense, the cloning of an expert’s methods of problem solving.

There are three principal components common to most expert systems: a knowledge

base, an inference engine, and a user interface.

The knowledge base contains the system’s

declarative and procedural knowledge, including rules of thumb and procedures for attempting to solve a given problem. The inference

engine controls the system’s operation by selecting the rules to use, accessing and executing those rules, and determining when a solution has been found. The user interface allows

communication between the system and its

user. Most use natural language processing.

Some experts believe that expert systems

can greatly benefit criminal justice operations,

through their ability to institutionalize knowledge and to disseminate rare investigative expertise. Experts in fields such as criminal

profiling, 29 forgery, arson, serial murder, and

rape investigation can have accrued as much

as 30 years of experience in problem solving.

When those experts leave a criminal justice

agency, they take their expertise with them.

Expertise is more than formal knowledge of

facts; it is judgment, memory, and ability to

compare and synthesize. It is hoped that expert systems can extend the lifetime of personal expertise and the range of its use beyond

a particular institution. Small agencies with

less experienced people or with no specialists

w-ill benefit from transferable expert system

programs.

Examples of expert systems being developed

for use in criminal justice are:

●

●

●

Criminal Profiling for Serial Murder and

Rape.–Under development by the FBI’s

Behavioral Science Investigative Support

Unit at the FBI Academy in Quantico,

Virginia.30

Serology Analysis. –Under development

by the California Department of Justice.

Narcotics Interdiction. –Under develop29For a general discussion of criminal profiling, see B. Porter, “Mind Hunters,” Psychology Today, April 1983, pp. 44-52.

●

●

●

ment by the FBI Technical Services Division.

Counterterrorism. —Under development

by the FBI’s Technical Services Division.

Name Searching System for Various FBI

Databases.–Under development by the

FBI’s Technical Services Division.

Organized Crime and Labor Racketeering-–Called “Big Floyd” and “Little

Floyd,” these are being developed by the

FBI’s Technical Services Division.

Except for Big Floyd, these expert systems

have not yet proved their feasibility and usefulness, but their developers have high hopes

for them.31 Expert systems could be particularly useful in FBI investigations because, frequently, the most effective investigators are

promoted out of investigation and into management positions, and this attrition is compounded by early retirement and other factors.

In addition, the Bureau relies heavily on the

expertise of local law enforcement officers in

the Bureau’s narcotics and drug interdiction

programs. Expert systems may be a way of

capturing and institutionalizing their knowledge before they return to their own jurisdictions.

sOInterview with W. Tafoya, Behavioral $cience Investigative Support Unit, Federal Bureau of Investigation, Jan. 5, 1987;

interviews with W. Tafoya, D. Icove, and R. Rabussen, Be

havioral Science Investigative Support Unit, Federal Bureau

of Investigation, Jan. 15, 1987. For discussion of crimin al profiling and the expert system being developed by the FBI, see

J. E. Douglas and A.E. Burgess, “Criminal Profiling: A Viable

Investigative Tool Against Violent Crime, ” J’B1 Law Enforcement Bulletin 55, December 1986, p. 9; and D.J, Icove, “Automated Crime Profiling, ” FBI Law Enforcement Btietin 55, December 1986, p. 27.

slThe Institute for Defense Analyses with the FBI developed

“Big Floyd,” a labor racketeering expert system, which is able

to access and use the data contained in more than 3 million

records in the FBI Organized Crime Information System. The

program, which is named for Floyd Clark, head of the Criminal

Identification Division, is a very large relational database based

on an “entity relation model. ” Relevant statutes, such as RICO,

are also in the system. An investigator can start with a person

or organization, look at the statutes and their constituent parts,

and ask questions such as: “Do I have enough evidence to charge

this person/organization?” The program will analyze all data

pertaining to an offender/organization and come to a conclusion. If there is not sufficient evidence, the program will suggest, for example, the kind of additional information that is

needed and will suggest that, given the various relationships

between individuals in the database, Subject “X” is likely to

have data that may implicate the suspect in crimes. The program will also suggest strategies for “turning” X into an informant,
Chapter 4

New Technologies for Correctional

Supervision and Treatment

Faced with increasing prison populations,

limited capacity, and rising prison construction costs, criminal justice officials have intensified their search for alternatives to incarceration. In doing so, they need to keep in mind

the Eighth Amendment prohibition of cruel

and unusual punishment, and the guarantees

of due process in the Fifth and Fourteenth

Amendments.

The penitentiary, as an institution of punishment, is a relatively modem invention. Conceived in the late 1700s as an alternative to

the capital and corporal punishments then

widely used,1 the penitentiary was designed

to produce penitence and reformation of the

inmate:

By sobriety, cleanliness, and medical assistance, by a regular series of labour, by solitary

confinement during the intervals of work, and

by due religious instruction to preserve and

amend the health of the unhappy offenders,

to inure them to habits of industry, to guard

them from pernicious company, to accustom

them to serious reflection and to teach them

both the principles and practice of every Christian and moral duty.2

After an initial period of experimentation

with different methods of confinement, the Auburn, New York, system of congregate work

during the day and solitary confinement at

night was adopted as the model upon which

IThe Walnut Str=t jail in Philadelphia is generally credited

as being the first penitentiary to which offenders were sentenced

as punishment. See E.H. Sutherland, Criminology (Philadelphia

PA: J.B. Lippincott, 1924), pp. 391-396; H.E. Barnes and N.K.

Teeters, New Horizons in Criminology, 2d ed. (New York, NY:

Prentice-Hall, 1952), pp. 381-398.

‘Quoted in Sutherland, Crimino20gy, op. cit., p. 395. Sutherland notes that this description of the purpose of penitentiary

confinement actutdly comes from an English law, dated 1778

and penned by Blackstone, Eden, and Howard, authorizing a

penitentiary. Although the institution was not built, the law

likely influenced the Quakers of Pennsylvania who were responsible for the system of discipline adopted at the Walnut Street

jail.

most penal institutions in the United States

were subsequently built.3 Penitentiary confinement became the dominant mode of treatment for serious offenders. Penal colonies,

another alternative, were widely used by some

countries, England included; the State of Georgia and Australia were first settled in this way.

Correctional practices are shaped in large

measure by the current penal philosophies. As

already noted, rehabilitation, incapacitation,

and retribution have at different times been

the primary objectives of criminal justice.4

There has been much debate during the past

decade about rehabilitation. Once highly

touted, recent studies have challenged its effectiveness and its basic fairness.5 Retributive aims of punishment have had a popular

resurgence and are the basis of reforms aimed

3A considerable historic controversy revolved around ‘he

Pennsylvania system, which prescribed solitary confinement

day and night, and the Auburn system, in which prisoners

worked together but in silence during the day, and were confined in solitude at night. Protracted periods of solitary confinement, however, were found to produce a variety of ills, including insanity and self-mutilation. Sutherland, Crinu”nology,

op. cit., footnote 1, pp. 396-399; Barnes and Teeters, New

Horizons in Criminology, op. cit., footnote 1, pp. 402-416; M.

Ignatieff, A Just Measure of Paz”n: The Penitentiary in the Industn”aZRevohztion 1750-1850 (New York, NY: Pantheon, 1978),

pp. 194-196.

4H L A. Hart, “Prolegomenon to the principles Of Punish- . .

merit, ” in Punishment and Responsibih.ty (Oxford: Clarendon

Press, 1968) pp. 1-13; G. Ezorsky (cd.), Philosophical Perspectives on l%m”shment (Albany, NY: State University of New York

Press, 1972); J.B. Cederblom and W.L. Blizek (eds.), Justice and

Punishment (Cambridge, MA: Ballinger, 1977).

SD Lipton, R, M~inson, and J. Wilks, The Effectiveness

of Correctional Treatment: A Survey of Treatment Evaluation

Stud-es (New York, NY: Praeger Publishers, 1975); W.C. Bailey,

“Correctional Outcome: An Evaluation of 100 Reports, ” Jourmd of Crimi”nal Law and Cn”rninology, 57 (1966), p. 153. American Friends Service Committee, Struggle for Justice: A Report on Crime and Punishment in America (New York, NY: Hill

& Wang, 1971); Twentieth Century Fund Task Force on Criminal Sentencing, I%ir and Certain Pzuu”shment (New York, NY:

McGraw-Hill, 1976); A. von Hirsch, Doing Justice (New York,

NY: Hill and Wang, 1976); N. Morris, The Future of Imprisonment (Chicago, IL: University of Chicago Press, 1974).

31
32

at greater uniformity and determinancy to sentencing. 6

As a result of these reforms, which include

preventive detention, determinate sentencing,

habitual-offender statutes, and in some jurisdictions the abolition of parole, as well as the

coincident aging of the baby boom generation,

prison populations have increased dramatically. Despite much State prison construction

since the early 1980s, the living conditions of

prisoners were more crowded in 1984 than in

1979. Prison housing space increased by 29 per-

.—6A LipSon ~d M. pet.fjrson, Cah”fornz”a Justice Under Deternu”nate Sentencing: A Review and Agenda for Research (Report No. R-2497-CRB prepared for the State of California, Board

of Prison Terms, 1980); S. Lagoy, T. Hussey, and J. Kramer

“A Comparative Assessment of Determinate Sentencing in the

Four Pioneer States,” Crime & Delinquency, vol. 24 (1978), p.

385; S. Messinger and Johnson, “California’s Determinate Sentencing Statute: History and Issues, ” Dekmninate Sentencing:

Reform or Regression? (Washington, DC: U.S. Government

Printing Office, 1978), pp. 13-58.

cent during that period, but the number of

prisoners grew by 45 percent.7

The new approaches considered in this chapter are all intended to provide alternatives to

conventional prisons: commercial or privatized

prisons and community service, electronically

monitored home arrest, and drug or hormonal

therapy and related methods of behavior modification.

‘U.S. Department of Justice, Bureau of Justice Statistics,

Prz”soners in 1985 (Washington, DC: U.S. Department of Justice, June 1986). BJS reports that the prison population rose

by 8.4 percent in 1985 to a record 503,601 inmates. This is the

third largest increase in the absolute number of additional inmates since prisoner statistics were first collected in 1926. A

recent report of the U.S. Bureau of Justice Statistics indicates

that the number of prisoners housed in State prisons has significantly outpaced capacity. U.S. Department of Justice, Bureau of Justice Statistics, Population Density in State Prisons

(Washington, DC: U.S. Department of Justice, 1986), reported

in Cn”rm”nal Justice Newsletter, vol. 18, Jan. 2, 1987, p. 4.

ALTERNATIVES TO CONVENTIONAL

OR TRADITIONAL PRISONS

Jurisdictions across the country have intensified their search for viable alternatives to

prison. One controversial alternative that several States are seriously considering is the

privatization of correctional facilities, or turning correctional facilities over to privately

owned companies to run. The issue of such

“prisons-for-profit” is heatedly debated by

criminal justice experts.

The American Bar Association (ABA), in

February 1986, urged States not to contract

with the private sector to operate correctional

facilities until a variety of constitutional and

legal issues were resolved, although no constitutional issues were specified. A year later,

the ABA’s criminal justice section initiated a

study of statutory and contractual issues regarding privatization, with the goal of researching the legal issues and developing a

model statute and contract.8

81 p. Robb~S, “~vat~ation of Corrections: Defining the Issues, ” Federal Probation, vol. 50, September 1986, p. 24.

But in fact, commercial jails are already in

operation. A television commercial shows a

man being arrested and led away in handcuffs,

followed with the message:

If you’ve been arrested, there’s an alternative to going to jail, called “alternative sentencing. ” The people to call are Behavioral

Systems Southwest. Call us and we’ll give you

the information.9

The alternative operates in California for people who have pleaded guilty to a nonviolent

crime, have been sentenced 90 to 120 days, are

willing and able to pay about $1,000 per month,

and have the permission of the sentencing

court. It involves part-time confinement in a

motel-type facility operated by a private company, while the offender carries on his or her

regular job during workdays. There are several such facilities in California and other

States.

“’Paying for Your Own Incarceration, ” ll&~ Reports, vol.

XXXV, No. 1, January/February 1987, pp. 13-14.
33

Another strategy is to divert from prison

those offenders who can safely and successfully be treated in the community. Alternatives

include fines, probation, suspended sentences,

restitution to the victim, and community service. Pre-release programs, such as work release

and halfway houses, shorten the duration of

an inmate’s term and provide a transitional

stage between incarceration and full release,

but are not really alternatives to prison because

they follow incarceration.

The major constitutional question in regard

to all of these alternatives to conventional imprisonment is the question of equity in their

application. To the extent that they offer

desirable alternatives, such policies and programs may be challenged on the basis of discrimination (i.e., under the Equal Protection

and Due Process Clauses) if they are available

only to those who can pay for them, or if candidates are categorized or classified in ways that

the Supreme Court has found to be suspect.

ELECTRONIC MONITORING

The concept of electronically monitoring the

location of parolees and probationers is not

new. Dr. Ralph Schwitzgebel, a member of Harvard’s Science Committee on Psychological

Experimentation, described in 1964a system

of “electronic parole” whereby a portable

transceiver device could monitor a parolee’s

location 24 hours a day. Researchers enthusiastically suggested that “when specific

offending behaviors can be accurately predicted and/or controlled within the offender’s

own environment, incarceration will no longer

be necessary as a means of controlling behavior

and protecting society. ”10

Parolees, mental patients, and researchers

in Cambridge and Boston, Massachusetts wore

the tracking devices between 1964 and 1970

to assist in developing the technique.11 A patent was issued for the device in 1969.12

Publicity about the electronic tracking device generated proposals that included adding

a microphone to transmit whatever the wearer

heard or said; transmitters that might broad10R K. . Schwitzgebel, R.L. Schwitzgebel, W.N. p~~e, ~d

W.S. Hurd, “A program of Research in Behavioral Electronics, ”

Behavioral Science, vol. 9, 1964, pp. 233-238.

llThe Subjwts in a 1969 study r~ged from ~ offender ‘ith

over 100 arrests and 8 years of incarceration to a young businessman with no criminal history. R.K. Gable (formerly Schwitzgebel), “Application of Personal Telemonitoring to Current Problems in Corrections,” Journal of Criminal Justice 14, (1986) p.

168.

IZIbid., p. 176. E,K. &fIW.tZ~&I ~d W.S. Hud (1969). “B~

havioral supervision system with wrist carried transceiver, ”

Patent No. 3,478,344.

cast signals from sensors recording blood alcohol levels or other physiological data; and

brain monitors to determine if the wearer was

asleep, alert, or emotionally agitated. Another

suggestion was the creation of a surveillance

system that would combine individual, personally worn transponders with transceiver

units strategically placed in buildings and

alongside streets. This large-scale monitoring

system was designed to “transform crime deterrence into a problem in information processing, and real-time cautioning by radio

signals." 13

Nevertheless, the development of electronic

monitoring devices made few advances until

the early 1980s when prison overcrowding created great demand for alternatives and the

market became attractive enough to encourage

commercialization.

13 Note, “Anthropotelemetry: Dr. Schwitzgebel’s Machine”

[Hereinafter cited “Schwitzgebel’s Machine”], Harvard Law%

view, vol. 80 (1966), pp. 403-404 See U.S. Congress, Senate Committee on the Judiciary, Hearings orJ Invasions of l+ivacy (Government Agena.es) Before the Subcom.ttee on Administrative

Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st sess., pt. I, pp. 14-63, 323-324 (1965). R.S.

MacKay, “Radio Telemetering From Within the Body, Science,

vol. 134, October 1961, p. 1196; I.J. Young and W.S. Naylor,

“Implanted Two Way Telemetry in Laboratory Animals,” American Journal of Md.calEkxtronics, vol. 3, January/March 1964,

pp. 28-33; D.B. Lindsley, “The Reticular Activating System

and Perceptual Integration” in D. Sheer (cd.), Electrical Stimulation of the Brain: An Interdisciplinary Survey of Neurobehavioral Integrating Systems (Austin, TX: University of Texas

Press, 1961), p. 331; and J.A. Meyer, “Crime Deterrent Transponder System, ” Institute of Electrical and Electronic Engineers Transactions on Aerospace and Electrom.c Systems 7

(1971), pp. 2-22.
34

One of the first successful personal telemonitoring devices was the “GOSSlink” electronic

bracelet, inspired by the Spiderman comic

strip. In 1977, New Mexico District Court

Judge Jack Love became intrigued with a cartoon in which a villain strapped a special bracelet on Spiderman’s wrist to track the hero’s

whereabouts. Judge Love wrote to his State’s

corrections department, enclosing a copy of the

comic strip and a news article about transmitting devices that could track cargo and animals. Nothing came of the idea for 4 years; then

crowding in the county jail motivated the

judge to contact several companies to discuss

the feasibility of the device. He convinced

Michael Goss, a computer salesman, to quit

his job to design and produce it. Goss established National Incarceration Monitor and

Control Services (NIMCOS) and developed an

electronic bracelet that could be used to monitor probationers. In 1983, after wearing the

bracelet himself for 3 weeks, Judge Love ordered a probation violator to wear the device;

and later added four additional offenders.14

Since 1983, approximately 20 jurisdictions

in 13 States have used electronic monitoring

devices in probation and parole, presentence

probation, work release, or house arrest programs.15 At least 12 companies are involved

in making electronic monitoring equipment for

correctional use.16 An appraisal of an electronic monitor, funded by the National Institute of Justice (NIJ), concluded that active

*’Criminal Justice Newsletter, vol. 15, Mar. 15, 1984, p. 4.

15The number of electronic monitoring programs is growing

rapidly, making a count difficult. In January 1986, the Texas

Criminal Justice Policy Council conducted a 6-month feasibility study, surveying 10 programs located in 7 States. In December 1986, the National Institutes of Justice (NIJ) reported

that 45 programs were operating in 20 States; NIJ is reviewing

these programs. See J.B. Vaughn, Potzmti”al Applications for

Electrom”c Moru”toring and House Arrest in the State of Texas

(Huntsville, TX: Sam Houston State University, July 1986)

[Hereinafter cited Potential Applications]. In addition, in October and November 1986, EMT Group, Inc. surveyed 20 pro

grams in 12 States. T. Armstrong, G, Reinger and J. Phillips,

Electmni”c Survedl“ anc8: An Ovem“ew [draft report] (Sacramento,

CA: The EMT Group, December 1986).

16C.M. Friel and J. B. Vaughn, “A Consumer’s Guide to the

Electronic Monitoring of Probationers, ” Federal l?robatj”on, vol.

50, September 1986, p. 4.

Photo credit: Innovative Security Systems, Cupertino, CA

The electronic bracelet and monitor allow some offenders

to remain in the home and aid in monitoring those

on probation or parole.

monitors have “promise” as an alternative to

traditional incarceration.17

Electronic systems can monitor an offender’s

presence in a specific environment, usually the

home, during curfew hours or during the entire

●

●

●

day. They include:

—

telephone calls to probationers during curfew hours;

computerized telephone calls to the probationer that require voice and electronic

identification;

transmitting devices worn by the probationer that emit radio signals to a receiver

attached to the phone, that, in turn, communicates with a receiver.18

Some house-arrest programs involve electronic monitoring; all electronic monitoring

systems involve house arrest. Depending on

the design, equipment can monitor offenders

intermittently or continually and are thus

called “passive” or “active” systems. Passive

monitoring systems have an automated caller

programmed to dial the probationer’s home.

17 See R.K. Gable, “Applications of Personal Telemonitoring

to Current Problems in Corrections, ” Journal of Criminal Justice, vol. 14, 1986, p. 169; W. Niederberger and W.F. Wagner,

U.S. Department of Justice, National Institute of Justice, “Electronic Monitoring of Convicted Offenders: A Field Test, ” lb

port to the National Institute of Justice, 1985.

18F.iel ~d Vaughn, op. cit., footnoti 16, P. 4.
35

They are frequently used in conjunction with

a wristlet encoder device that the probationer

inserts into a verifier box attached to the telephone. The verifier box sends a signal to a computer, which records a violation if the telephone

is not answered or the bracelet is not inserted.

Such systems are relatively inexpensive, simple to operate, and free of false alarms.

Some systems also use computerized “voice

verification” to ensure that the respondent is

actually the offender.19 One system has an

optional second test that requires the offender

to repeat a series of digits, using the telephone’s touchtone keys. This tests manual dexterity as a possible indication of drug or alcohol use.

Active monitoring systems usually consist

of three components:

1.

2.

3.

a transmitter device worn by the offender

around the ankle, neck, or wrist, which

transmits an encoded signal at regular intervals over a range of approximately 200

feet;

a receiver unit located in the offender’s

home that detects signals from the transmitter and periodically reports to a central computer; and

a control computer located at the criminal justice agency that accepts reports

from the receiver unit over telephone lines,

compares them with the offender’s curfew

schedule, and alerts correctional personnel to unauthorized absences.

The ankle transmitter used in several active

monitoring systems is about the size of a cigarette package, weighs about 5 ounces, and is

strapped around the leg above the ankle with

a strap containing an electronic circuit that detects tampering and sends an alarm to thereceiving unit.20

Most of these programs have only been in

existence for a few years and typically involve

]9vaughn, op. cit., footnote 15! P. 23.

ZOG. Kemedy, Control Data Corp., Minneapolis, MN, in~rview conducted Apr. 11, 1985, reported in R.v.del Carmen and

J. Vaughn, “Legal Issues in the Use of Electronic Surveillance

in Probation, ’ Federal Probation, vol. 50, June 1986, pp. 60-61

[Hereinafter cited “Legal Issues”],

a small number of screened offenders, making

evaluation preliminary and perhaps misleading.21 Electronic monitoring costs more than

traditional probation, but less than prison confinement. Society and the prisoner benefit from

the latter’s continued ability to work and support himself and perhaps a family. Such programs add to tax revenues, reduce welfare

costs, and relieve the need to build additional

prisons. They also allow a prisoner to retain

family and community ties. This is a benefit

if those ties are healthy and supportive, but

there is also the risk of continuing unhealthy

associations-e. g., access to liquor and drugs.

A potential societal risk is that of widening

the net of social control. Some critics contend

that there will be a tendency to criminalize all

mildly socially unapproved behavior or to sanction longer terms or other harsher penalties

for minor misdemeanors. Society derives no

benefit if offenders who would otherwise have

successfully been placed on probation without

monitoring are now electronically tracked. For

these people, a less costly probationary program would have proven just as effective and

the level of social control less intrusive, yet

consistent with their rehabilitation and the protection of society. If it is used for serious felons,

there is the possibility that they will elude monitoring long enough to commit other crimes.

Some people think that the use of house arrest and monitoring devices has “Orwellian

overtones ’’;22 others rejoin that surveillance

by a computer is less intrusive than confinement in a prison.23

21B. Berry, “Electronic Jails: A New Criminal Justice Concern,” Justice Quarterly, Mar. 21985, pp. 1-22; Friel and Vaughn,

op. cit., footnote 16; J. Petersillia, “Exploring the Option of

House Arrest,” Federal Probation, vol. 50, June 1986, pp. 50-55.

ZZR.A. BW ad J. Lilly, “The Potential Use of Home Incarceration With Drunken Drivers, ” in J.E. Scott and T. Hirschi

(eds.), Critical lsmf?s ti crin.u.nal Justice (Beverly Hills, CA:

Sage, 1984). B. Beck, “Commentary: Issues in the Use of an

Electronic Rehabilitation System With Chronic Recidivists, ”

Law and Society Review, May 3, 1969, pp. 111-114.

Z3B.L. In=fim ~d G. Smith, “Use of Electronics in Observation and Control of Human Behavior, ” Issues in Crinn”-

nology 7, fall 1972, pp. 35-53.
36

There are several constitutional questions.

The first issue involves the Fourth Amendment guarantee of “the right of the people to

be secure in their persons, houses, papers, and

effects. . . .“24 Electronic monitoring coupled

with home arrest is typically used with those

who otherwise would be in prison, that is, they

are probationers. The courts have consistently

held that probationers enjoy only a restricted

scope of constitutional protection.25 They

have somewhat broader protections than confined prisoners,26 but less than the general

public.

Electronic monitoring is also used in pretrial

releases, where the issue is less clear-cut. Although the Supreme Court has ruled that the

rights of pretrial detainees are subordinate to

maintaining order and security,27 defendants

released pending trial continue to enjoy the presumption of innocence. Although their release

may be subject to conditions in order to ensure their appearance at trial, they have not

been convicted of a crime nor do they suffer

the legal disabilities of convicted felons. In

these cases, the courts often defer final disposition of the case while the defendant serves

a term of probation. The defendant typically

enters a guilty plea, but the court withholds

final judgment until probation is completed.

Assuming it is completed without incident, the

court may then dismiss the case, thus averting the stigma of a criminal record.

. — — zz~ver~ con~mwrv paPrs provide an overview Of the 1~

gal and constitutional issues surrounding the use of electronic monitoring equipment. See del Carmen and Vaughn, “~gal Issues, ” footnote 20; see note 111, p. 60; Note, “Electronic Monitoring of Probationers: A Step Toward Big Brother?” GoMen

Gate Law Review 14 (1984), p. 431; Berry, “Electronic Jails, ”

Friel and Vaughn, “Consumers Guide. ”

‘

sState v. Cuhertson, 563 P. 2d 1224 (Or. Ct. App. 1977);

Uru”tedStates v. ConsudoGonzales, 521 F. 2d 259 9th Cir. 1975);

Malone v. Um”ted States, 502 F. 2d 554 (9th Cir. 1974), cert.

dem”ed, 419 U.S. 1124 (1975); People v. Mason, 488P. 2d (Cal.

S. Ct, 1971); h m Martinez, 463 P. 2d 734 (Cal S. Ct. 1970).

Also see Note, “Fourth Amendment Limitations on Probation

and Parole Supervision, ” 1976 Duke Law Journal 71 (1976).

‘e~udson v. Ptier, 468 U.S. 517 (1984) [prisoners have

reasonable expectation to privacy in their cells, or in property

in their cells, entitling them to the protection of the Fourth

Amendment against unreasonable searches]; Block v. Rutherford, 468 U.S. 576 (1984) [Prisoners have no right to be present

when authorities search their cells].

27~efl v. Wo]fjgh, 441 U.S. 520 (1979).

Sentencing courts are given wide latitude in

setting the terms of probation, including restricting the probationer’s exercise of constitutional rights,28 but they do not have completely unfettered discretion in establishing

conditions or release.29 Generally, conditions

of probation must have a reasonable relationship to the treatment of the accused and the

protection of the public.

Requiring an offender to abide by a curfew

is not an infrequent condition of probation, one

that has not been found to violate the probationer’s rights nor to be an abuse of judicial

discretion.30 The courts are likely therefore to

find no violation of Fourth Amendment rights

where probationers are ordered to stay within

their own homes for prescribed hours (tantamount to a curfew), and where an electronic

monitor is used simply to verify the probationer’s compliance. When probationers have

agreed to conditions, the courts have generally held that they have effectively waived the

exercise of any constitutional rights abridged

by the conditions. For example, a defendant’s

agreement to probation on the condition that

she submit to polygraph examination effectively waived any Fourth or Fifth Amendment

claims. The Court said that the defendant’s

waiver was voluntary despite the unattractive

choice between agreement to the condition or

imprisonment. 31

~State v. C@Pr, 282 S.E. 2d 439 (NC S. Ct. 1981); Stati ‘“

Sprague, 629 P. 2d 1326 (Or. Ct. App. 1981); Malone v. Uru”ted

States, 502 F. 2d 554 (9th Cir. 1974), cert demoed, 419 U.S. 1124

(1975); People v. Mason, 488P. 630 (Cal. S. Ct. 1971); InmBushrnan, 463 P. 2d 727 (Cal. S. Ct. 1970); In re Martinez, 463 P.

2d 734 (Cal. S. Ct. 1970).

~Contitions which unn=ess~y encumber the exercise of

constitutional rights, bear little or no relationship to the rehabilitation of the offender or the protection of society, impose

impossible burdens on the probationer, are vague, or require

banishment of the offender have been struck down by the cmrt.s.

See, Um”ted States v. Abushaar, 761 F. 2d 954 (3rd Cir. 1985);

Panko v. McCauley, 473 F. Supp. 325 (E.D. Wise. 1979); People

v. Snu”th, 232 N.W. 397 (S. Ct. Mich., 1930); People v. Dominguez, 256 C.A. 2d 623 (1967); Sweeney v. Um”ted States, 353

F. 2d 10 (7th Cir. 1965); Dear Wtig Jung v. Um”ted States, 312

F. 2d 73 (9th Cir. 1962).

wstam v. Sprme, 629 P. 2d 1326 (or. Ct. APP. 1981); ‘Ohson v. State, 291 S.E. 2d 94 (Ga. S. Ct. 1981); State v. Cooper,

282 S.E. 2d 436 (NC S. Ct. 1981).

Slstati v. W,,son, 521 P. 2d 1317 (Or. Ct. APP. 1974)~ ‘he

earlier Zap v. Unz”ted States, 328 U.S. 624 (1946) [Fourth Amend-
37

On the other hand, home arrest anti electronic monitoring could be held to violate the

Equal Protection of the Laws Clause, if such

programs remain limited to a small percent of

all offenders.32 The alternative of incarceration is for most people probably much more

undesirable. Most electronic monitoring programs require the probationer to have a home

and a telephone line and to pay the costs associated with the program. The Equal Protection of the Laws Clause could be involved if

participation is denied to those defendants who

cannot pay the program’s costs. In a recent

case33 the Supreme Court held that a defendant’s probation could not be revoked for failure to pay a court ordered fine and make restitution when the defendant was unable to pay.

— — ——.

ment rights may be waived, and where defendant specifically

agreed to governmental inspection of his business records, in

order to obtain the government’s business, he voluntarily waived

any claims to privacy with regard to his records].

3ZL,

. . . No State shall . . . deny to any person within its jurisdiction the equal protection of the laws. Um”ted States Constitution, Article, XIV.

33BeWden “. Geor&”a, 461 U.S. 660 (1983).

This issue could become even more important if the AIDS epidemic increases the risks

entailed in incarceration. The disparity between alternative punishments for the same

offense would then seem much greater. Since

maintaining a prisoner almost certainly costs

much more than electronic monitoring, it may

be cheaper to forego user fees. However, this

would still not solve the problem of the offender

with no settled abode, no telephone, and no employment.

There are additional policy issues to be considered in electronic monitoring that probably

do not impinge on constitutional protections;

for example, the rights of others in the family

or household. The electronic monitoring devices presently used with home arrest transmit neither images nor oral communications,

only a radiofrequency signal indicating the

presence of the probationer within the prescribed range of the transceiver. Earlier electronic surveillance cases restrict the use of electronic monitoring devices that operate with the

principal aim of eavesdropping and seizing

video or audio evidence against a suspect.

DRUG THERAPY AND HORMONE MANIPULATION

Many scientists think it will become increasingly possible in the future to identify biochemical or hormonal factors in human behavior and

eventually to modify behavior by manipulating these factors. A popular film of the early

1970s, “A Clockwork Orange, ” explored the

implications of behavior modification for controlling antisocial or criminal behavior. Already a few, relatively ineffective forerunners

of these biological technologies are being used

or experimented within criminal justice. These

include Antabuse for those whose offenses are

related to alcohol abuse, and Depo-Provera for

sexual offenders. These early examples have

raised a large number of objections: that they

allow criminals to escape punishment, that

they violate professional ethics, that they dehumanize the subjects, that they are unconstitutional as “cruel and unusual punishment, ”

and that they are unconstitutional because

they are not equally available to all offenders

as a substitute for punishment, or as a needed

medical treatment. A closer look at Antabuse

and Depo-Provera may help in evaluating these

objections.

Antabuse and Alcohol

Antabuse is used to treat alcoholism. While

alcoholism is not a crime, public intoxication,

disturbing the peace, disorderly conduct, and

driving under the influence of alcohol are. The

recent get-tough attitude toward drunk driving has resulted in strictly enforced laws that

may include jail terms. This could further burden the criminal justice system and worsen the

shortage of prison cells, but still do little to
38

solve the underlying problem by preventing

recurrence or deterring potential offenders.

Traditional treatment for alcoholism, based

on the view of alcoholism as a disease, includes

counseling, group therapy, and support networks, such as Alcoholics Anonymous. Such

treatment is effective only when it is voluntary and actively sought. Some research indicates that when appropriately applied, either

the administration of drugs or behavioral

modification programs, including chemical and

electrical aversion conditioning, may be as effective as the more conventional forms of

treatment. 34

Tranquilizers are among the most frequently

prescribed drugs for the treatment of alcoholism.35 First introduced in the 1950s, they

may relax a person and relieve anxieties or tension without seriously impairing judgment or

alertness. Hypnotics are also frequently prescribed. These drugs must be carefully monitored because the alcoholic may simply substitute dependency upon the drugs for alcohol.

Disulfiram, commonly known as Antabuse,

is used in quite a different manner. It is a water

soluble, almost tasteless tablet that is incompatible with alcohol. Alcohol in interaction with

Antabuse causes extreme nausea or vomiting,

difficulty in breathing, headaches, blurred vision, and a marked drop in blood pressure. Antabuse blocks the complete breakdown of alcohol in the body, making the imbiber ill from

the accumulation of toxic byproducts. One

must wait 72 hours after taking Antabuse before drinking. When used in a treatment program, the drug is frequently used in conjunction with psychotherapy.36

Antabuse conditions deterrence by the fear

or expectation of severe reaction to alcohol. It

provides drinkers with social justification for

34G. Litmm ~d A. Toph~, “Outcome Studies on Techniques in Alcoholism Treatment, ” in M. Galanter (cd.), Recent

Developments in Alcoholism, Volume 1 (New York, NY: Plenum Press, 1983), p. 187.

35HOH. Siepl, Alcohol Detom”fi”cation Programs: Matment

instead of Jail (Springfield, IL: Charles C. Thomas Publisher,

1973), p. 56.

‘Ibid., p. 57.

abstinence; 37 enhancing their ability to benefit from more traditional group or individual

therapy by keeping them out of trouble with

the law.38 Research has indicated, however,

that the success of the drug maybe due more

to psychological factors than to the physical

reaction, and that only highly motivated persons are appropriate candidates for treatment.39 The trouble with Antabuse treatment, in lieu of conventional punishment, is

that the alcoholic may terminate the medication and resume drinking.

Depo-Provera and Sex Offenses

A more controversial form of drug therapy

for criminals is Depo-Provera. In recent years,

the number of serious sex offenses, notably forcible rape, has increased considerably,40 or, as

some claim, society is ceasing to condone or

ignore these crimes and they are more often

reported. In addition, there seems to have been

a big increase in sex offenses involving children. Again, this increase may represent in

part a growing inclination to report such

crimes. Sex offenders seem particularly likely

to repeat their crimes after punishment.41

The sexual offender may be, but is not necessarily, violent. He is a person who “seeks

sexual gratification through inappropriate

means, such that the sexual activity or the

repercussions of the sexually exciting behavior

are harmful to self or others. ” A distinction

WD.F4 llomobk, Alcohoh”sm Treatment, Alcohol Research

Review Series, vol. 5 (New York, NY: Human Sciences Press,

1980), p. 133.

sew. Poley, G. ~a, nd G. Vibe, Alcohoh”sm: A ~~tment

Manual (New York, NY: Gardner Press, Inc., 1979), p. 61. 39Homobin, ~atment, op. cit., see nOte 130, PP. 133-134)

and Poley, et. al., Alcohoh”sm: A fieatment Manual, op. cit.,

1979, see note 131, p. 61.

@The FBI Ufiform Crime Reports indicate a 74-percent increase in reported rapes between 1971 and 1981, and a 57-percent

increase in aggravated assault for the same period. U.S. Department of Justice, Bureau of Justice Statistics, Ii@ort to the

IVation on Crime and Justice (Washington, DC: U.S. Department of Justice, 1983), p. 9. In addition, from 1984 to 1985 the

number of forcible rapes increased 3.7 percent. U.S. Department

of Justice, Federal Bureau of Investigation, Uni”form Cn”me

Reports for the Um”ted States (Washington, DC: U.S. Department of Justice, 1985), p. 13.

41L.R. T~cre& md D.N. Weisstub, “Forensic psychiatry

and the Case of Chemical Castration,” Mernational Jourmd

of Law and Psych”atqv 8 (1986), p. 259.
39

is often made however between ‘sex offenses”

(a legal term) and sexual deviation disorders

(a medical term) .42 But even where sexual

offenses against victims do not involve physical damage, there is often significant emotional

damage. 43

Some experts identify four primary types of

sex offenders:44

1. denying offenders who deny their crime

or the criminal nature of the crime (i.e.,

they claim the rape was consensual or the

pedophilia was initiated by the prepubertal child);

Z. disinhibited offenders who confess to the

crime but claim their behavior was due to

nonsexual factors such as alcohol, drugs,

or stress;

3. violent offenders who appear to be motivated primarily by some nonsexual force,

such as anger or drive for power; and

4. paraphiliac offenders, especially males, in

which fantasy or the actuality of a specific deviation accompanies nearly every

sexual arousal; or with “recurrent, persistent fantasies about deviant sex. . . erotic

cravings perceived as noxious when frustrated. . . and relatively stereo-typed sexual activity. ”

Paraphiliac behaviors may include fetishism, transvestism, sadism, masochism,

pedophilia, exhibitionism, and voyeurism.

More violent illegal behaviors, such as

rape and incest, and the lack of sexual impulse control may be associated with

paraphiliacs or with other psychiatric disorders, such as schizophrenia.

4ZF s Berlin and C.F. Meinecke, “Treatment of Sex . .

Offenders With Antiandrogenic Medication: Conceptualization,

Review of Treatment Modalities, and Preliminary Findings, ”

American Journal of Psyclu”atry 138 (1981), pp. 601-646, at p.

602 [Hereinafter cited “Treatment of Sex Offenders”]. See also,

P. Walker and W. Meyer, “Medroxyprogesterone Acetate for

Paraphiliac Sex Offenders, “in J.R. Hays, T.K. Roberts and K.S.

Solway (eds.), Violence and the Violent Ind”tidual (Jamaica, NY:

Spectrum Publications, 1981), pp. 354-356.

43J. Kelly and J. Cavanaugh, “Treatment of the Sexually

Dangerous Patient, ” Current Psychiatric Therapies 21 (1982),

p. 101 [Hereinafter cited “Sexually Dangerous”].

441bid.

At certain periods there has been a strong

tendency to subject sex offenders not to punishment, but to treatment. In the search for

new approaches for managing sex offenders,

there is no clear consensus on which sexual

offenders are “sick” and merit compassion and

treatment, and which are “evil” and merit severe punishment. Many people are ambivalent

and troubled on this subject. Nor is there unanimity among either medical or law enforcement experts. This contributes to the high degree of inconsistency in treatment of sex

offenders. Knowledge and theory in this area

are both inadequate, and research is hampered

by the peculiar difficulties of obtaining data

on sexual behavior, which makes diagnosis and

effective treatment difficult.

Traditional treatment of sex deviants takes

several forms: mental health therapy, psychotherapy, life skills training, behavior

modification, and hormonal manipulation. Increasingly, behavior change programs involve

a combination of methods and techniques, and

almost always include some form of counseling and peer group treatment.45 Other strategies use a variety of aversive conditioning

techniques, including electric shock treatments, shame-aversion, and covert sensitization. 46 Few if any treatment methods have

been proven effective in significantly reducing the incidence or recurrence of sexually deviant or dangerous behaviors.

One mildly promising but controversial

treatment for use with certain sex offenders

is hormonal manipulation through injection of

46DeJ, west, ~I~x Offe-s and Offending, ” in M. TOI_WY ~d

N. Morris (eds.), Crime and Justice: An Annual Review of Research, vol. 5 (Chicago, IL: University of Chicago Press, 1983),

p. 216. Comprehensive surveys of programs in the United States

include E.M. Brecher, !?!matment Programs for Sex Offenders

(Washington, DC: U.S. Government Printing Office, 1978); B.

Delin, The Sex Offender (Boston, MA: Beacon Press, 1978). Also

see Report on Nation un”de Survey of Juvenile and Adult SexOffender Treatment Programs and Providers (Syracuse, NY:

Safer Society Press, 1986). [Hereinafter cited Nationwide Survey Sex-Offender Treatment Programs.] 46M ~rber ~d J. Wolpe, “Behavior Therapy Techniques,

in H.L.P. Resnick and M.E. Wolfgang (eds.), Treatment of the

Sex Offender (Boston, MA: Little, Brown &Co., 1972), pp. 59-64.
40

the antiandrogen progesterone, a technique

sometimes called chemical castration. Used in

Europe for many years, hormonal manipulation has only recently been used in the American criminal justice system. The usual form

is Depo-Provera.

A 1986 survey of 650 U.S. programs specializing in the treatment of sex offenders found

that 14 percent of the adult programs and 6

percent of the juvenile programs were using

Depo-Provera on an experimental basis.47

Their goal is to determine if it, in conjunction

with extensive counseling, could reduce the

probability of recidivism.

Testosterone, found in varying levels in both

men and women, is the sex hormone responsible for the male sex drive. Male sexual behavior

is related to many variables, only one of which

is the serum level of testosterone. But variations from the normal range of testosterone

concentration are frequently associated with

behavior changes; a reduction in the hormone

due to castration may reduce sexual activity

and conversely, an injection of testosterone to

androgen-deficient men can increase sexual

activity .48

The first clinical use of antiandrogen compounds to treat sexual offenders occurred in

West Germany and Switzerland in the 1960s.49

Experimenting with rats, scientists discovered

the antiandrogenic properties of cyproterone

and cyproterone acetate, and began applying

the new drug to selected human beings. The

compounds were found to suppress the production of testosterone. In contrast to estrogen compounds,5o which in the male produce

effeminate body changes and may cause irreversible infertility, cyproterone and cyproterone acetate are progesterone derivatives that

have fewer unpleasant side effects, most reqTNation~de Survey of Sex-Offender Treatment progr~%

see note 142, reported in Criminal Justice IVewsletter 17 (June

16, 1986), p. 6. 48 Ke

lly ~d CavmuWh, “sexu~y Dangerous, ” oP. cit.! ‘ootnote 43, p. 103.

4gJ. Money, “The Therapeutic Use of Androgen-Depleting

Hormones,” in H.L.P. Resnick and M.E. Wolfgang (eds.), Treatment of the Sex Ofiender, see note 143, p. 165. ~ereinafter cited

“Therapeutic Use”]

SOEstro@n is the main female sex hormone.

versible, and no known permanent adverse side

effects. 51

The drug was approved in the United States

for several medical applications, but the Food

and Drug Administration has not released it

for general treatment of sexually deviant behavior. It has been possible, however, for

researchers working with sex offenders to substitute medroxyprogesterone acetate, a synthetic progesterone known as Depo-Provera,

manufacturered by the Upjohn Co.

Effective treatment with Depo-Provera depends on careful selection of candidates.”

The personal commitment of the patient is important. Patients typically receive a 300 to 400

mg. injection of the drug every 7 to 10 days,

depending on physique and body weight. The

drug is regularly monitored in an attempt to

lower the amount of testosterone from normal

male levels (400 to 1,000 mg) to normal female

levels (40 to 100 mg),53 with the objective of

reducing potency and ejaculation, reducing the

frequency of erotic imagery, and diminishing

sexual interest. Behavioral and cognitive

therapies are almost always part of the

treatment.54

In contrast to other, more traditional forms

of treatment (e.g., psychotherapy, behavior

therapy, long-term institutionalization, or antipsychotic chemotherapy), Depo-Provera is said

to be more specific and longer-lasting in eliminating sexually dangerous behaviors.55 There

is also some evidence indicating that lowered

MM*K. s@~, Z.M. Ftdk, and J.R. Rappeport “The Hormonal Treatment of Paraphiliacs With Depo-Provera, ” Crhninal Justice and Behavior 5 (1978), pp. 304-314.

Szwmer and Meyer, “Medroxyprogesterone Acetate for

Paraphiliac Sex Offenders, ” 1981.

5aKe~y ~d Cavmu%h, “Sexually Dangerous, ” op. cit., fOotnote 43, p. 104. Research also suggests that some offenders have

excessively high levels of testosterone. Berlin and Meinecke,

“Treatment of Sex Offenders,” op. cit., footnote 42, p. 605; P.

Gagne, “Treatment of Sex Offenders With Medroxyprogesterone Acetate, ” American Journal of Psyclu”atry 138, May 1981,

p. 645.

Sqwith coun~~g only, the patient often becomes discouraged as a result of relapses into deviant behavior. With counseling and DepProvera there are almost immediate. behavioral

changes, thus increasing the effectiveness of psychological

therapy.

65 Kelly ~d Cavmaugh, “&!xu~y D~~rous~ “ op. cit., footnote 43, p. 102.
41

testosterone levels may decrease aggressiveness. 56 Other researchers have found that

Depo-Provera does not affect aggression per

se, but reduces sex-related aggression. b

’

There are several theories, but as yet no conclusive evidence, to explain the multiple biochemical and clinical effects of Depo-Provera.

The Biosexual Psychohormonal Clinic at the

Johns Hopkins University Hospital in Baltimore, Maryland, was one of the first programs

to treat sex offenders with Depo-Provera, in

the late 1960s. In 1982-83, the program treated

approximately 150 sex offenders, mostly as a

condition of probation.58 Program research

suggests that Depo-Provera, when combined

with counseling, can reduce the risk of recidivism. 59 But when medication is stopped,

recidivism may recur. The drug has been effective with paraphiliacs (i.e., those requiring

bizarre imagery, voyeurs, sex masochists,

pedophiles, etc.), but does not work well with

“antisocial career ciminals. ”

New research at the sex offender program

of the Connecticut Department of Corrections

has indicated that Depo-Provera is unsuitable

for most rapists because of their violent behavior, which is “primarily the sexual expression of aggression, rather than the aggressive

expression of sexuality.”60 Other research indicates that it is not effective with alcohol and

drug abusers.

The drug has several possible side effects,

including those that frequently accompany the

use of oral contraceptives; that is, fatigue, de-

‘Ibid., p. 103. 5TBradford, “The HOrmOn~ Treatment of %x Offenders, ”

Bulletin of the American Academy of Psyclu”atry and the Law

11, 1983, p. 167, cited in Larry McFarland, “Depo Provera Therapy as an Alternative to Imprisonment, ” Houston Law Rew”ew

23, 1986, Note 114, p. 810. Bradford believes there is little evidence of a correlation between serum testosterone and aggression, although there is a highly complex relationship between

aggression and various biological factors.

bgcn~~ Justi~ Newsletter 14 (Sept. 12, 1983), P. 3.

5~=~~W have ~n supported by the rSSUltAI of a shilar program in Galveston, TX; the Rosenburg Clinic reports

that 70 to 80 percent of the men treated with Dep~Provera

in conjunction with psychological treatment did not repeat their

offensive behavior. See Houston Post, June 29, 1985, at 4A, CO1.1.

~C~n~ Justice Newsletter 15 (Feb. 15, 1984), P. 4. AISO

see N. Groth, Men Who Rape: The PsychoJo~ of the Offender

(New York, NY: Plenum Publishing Corp., 1979).

pression, weight gain, change in the growth

of body hair, nausea, elevated blood glucose,

and headaches.61 These side effects appear to

be temporary and reversible when treatment

is terminated. Within 6 to 12 months following the last administration of the drug, a man’s

testosterone level returns to its pretreatment

level.” Some controversy regarding the

drug’s possible carcinogenic effects has been

reported in research literature.”

At best, Depo-Provera is a temporary solution to sexually deviant behavior. With shortterm use, a high percentage of relapse occurs

after the drug is withdrawn. But as sex crimes

are highly age correlated, Depo-Provera treatment administered over several years may

reduce the likelihood of recidivism until the

patient ages, or makes sufficient progress in

behavioral therapy to control antisocial behavior. 64

Alternative Techniques for Behavior Control

The questions raised about drug or hormonal

therapy would also apply to other kinds of scientific behavior modification if and when they

become available. The techniques popularly

and loosely called brainwashing, and certain

surgical procedures, including castration and

lobotomy, have been suggested at various

times, although there is little evidence that

they would effectively control undesirable behavior. If techniques are developed that are

—— -—-—

‘1P. Gagne, “Treatment of Sex Offenders With Medroxyprogesterone Acetate,” American Journal of Psychiatry 138, May

1981, p. 645; Kelly and Cavanaugh, “SexuaIly Dangerous, ” op.

cit., footnote 43, p. 104.

GZJ. Money “’1’hempeutic US%”see note 143, pp. 166; Kelly

and Cavanaugh, “Sexually Dangerous, ” op. cit., footnote 43,

p. 104.

Gs~Wmchers opposing the use of Depo-Provera claim that

high doses of medroxyprogesterone acetate have caused breast

cancer in female dogs (See A. Rosenfield, et al., “The Food and

Drug Administration and Medroxyprogesterone Acetate,” Journal of the American Medical Association 249 (1983 ),pp. 2924-

2925). Several other researchers, however, believe that these

findings are inconclusive as to the carcinogenic effects the drug

may have on human beings. Berlin and Meinecke, “Treatment

of Sex Offenders, ” op. cit., footnote 42, see note 139, p. 603;

A. Liang, et al., “Risk of Breast, Uterine Corpus and Ovarian

Cancer in Women Receiving Medroxyprogesterone Injections,”

Jourmdof the American MedicdAssoci.ation 249 (1983), p. 2909. g4Ber~ ~d Meinecke, “Treatment of Sex Offenders, ” op.

cit., footnote 42.
42

proven effective, however, these questions will

certainly be raised.

Thus, some critics challenge any behavior

modification treatments as “cruel and unusual

punishment,” which is prohibited by the

Eighth Amendment. The courts have interpreted this clause to ban punishments involving torture or a lingering death,65 and those

that are disproportionately severe.66 Courts

have applied the proscription at various times

to capital punishment,67 corporal punishments, 68 and degrading conditions of confinement. 69

It has also been applied to use of “aversion

stimuli” in the form of an unproven drug that

caused vomiting, when used to punish inmates

or involuntarily committed patients who violated minor institutional rules.70 A prisoner

who undergoes treatment must consent, and

must be able subsequently to withdraw consent and halt treatment.

The nature of the treatment, and what it does

to the subject, is clearly relevant. For example, the effects should not be “shocking to the

6S1n ~e ~e~er, 136 U.S. 436 (1889), at 447: “finishrnents

are cruel when they involve torture or a lingering death; but

the punishment of death is not cruel, within the meaning of that

word as used in the Constitution. It implies there’s something

inhuman and barbarous, something more than the mere extinguishment of life. ” 66wWm~ v. u~”~~ States, 217 Us. 349 (1910): a sentence

of 15 years at hard labor in wrist and ankle chains is disproportionate to the crime of falsifying a public record. Coker v. Georgz”a, 433 U.S. 584 (1977): the death penalty for the crime of forcible rape is grossly disproportionate and excessive, in violation

of the Eighth Amendment. Solem v. Helm, 463 U.S. 277 (1983):

a life sentence without possibility for parole for seventh nonviolent felony is significantly disproportionate to the crime and

is thus a violation of the Eighth Amendment. But compare Rummel v. Estefle, 445 U.S. 263 (1980): a mandatory life sentence

imposed under a recidivist statute does not constitute cruel and

unusual punishment, even though the three successive felonies

were nonviolent, property-related offenses.

i37timm v+ Georg”a, 408 U.S. 238 (1972)

es~adson v. ~jshop, 404 F. 2d 571 (8th Cir. 1968) [WhiPpings administered with a leather strap.]

69~o~t v. ~er, 309 F. Supp. 362 (E.D. Ark. 1970)~ ‘if’d 442

F.2d 304 (8th Cir. 1971) me totality of conditions of confinement within an institution may amount to cruel and unusual

punishment “where the confinement is characterized by conditions and practices so bad as to be shocking to the conscience

of reasonably civilized people . . .“ p. 365.

TOKnWht v. Gflm~, 488 F.2d 1136 (8th Cir. 1973).

conscience of reasonably civilized people, ” a

test that has been applied in determiningg what

constitutes cruel and unusual treatment.71

Surgical or pharmaceutical treatment that

deprived a prisoner of the use of general mental faculties (i.e., made him a passive “zombie”)

or of physical faculties (i.e., crippled, blinded,

or permanently castrated him) might be found

to be “shocking to the conscience of reasonably civilized people”; but courts have allowed

lobotomies to be performed on involuntarily

committed patients.

Another general question that could arise,

however, is whether a prisoner could demand

treatment as an alternative to prison or if it

affords an improved chance at probation.

Should certain treatments prove effective and

reliable methods for reducing violent behavior

or propensity to rape or other sexual offenses,

for example, prisoners may demand such treatment on grounds of “equal protection” or as

medical care to which they are entitled. The

Supreme Court has ruled that prison officials

are obligated to provide inmates with adequate

medical care.72 The constitutional duty stems

from the inmates’ total dependence on prison

officials to provide for their medical needs. The

Court established a two-pronged test. Prison

officials have violated the Eighth Amendment

if: 1) the prisoner has serious medical needs,

and 2) by an act or omission, officials have

demonstrated deliberate indifference to those

needs.73 This requirement would not apply to

experimental or unconventional treatments.

The suggestion that Depo-Provera, still considered experimental, could involve such longterm risks has led some critics to object to it.

An opponent of Depo-Provera treatment protested,

It makes a mockery of the whole concept of

informed consent when your option is to go

TIHolt v. Smer, 309 F. Supp. 362 (E.D. Ark. 1970)

72ES~~e v. Gmble, 429 U.S. 97 (1976) [Deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening

the Eighth Amendment.]

ysIbido, pp. 104-105.
43

to jail or get injected with a carcinogen that

can increase the risk of heart attack. 7 4

The American Civil Liberties Union has protested the conditions under which sex offenders usually participate in the program, arguing that it is an indirect form of coercion75

because, for sex offenders especially, prison can

be so dangerous as to force them to accept any

alternative.

The courts have not established a clear doctrine on refusal of treatment even when it is

intended to be rehabilitative.76 At present,

“Criminal Justice Newsletter 14, Sept. 12, 1983, p. 3, Comments of Dr. Sidney Wolfe, Director of the Health Research

Group.

‘

sCriminal Justice Newsletter 14 Sept. 12, 1983 p. 3.

7GCompulsory treatment was not held violative of Eighth

Amendment in Rutherford v. Hutto, 377 F. Supp. 268 (E.D.

Ark. 1974). [Prison officials compelled, under threat of institutional punishment, an illiterate inmate to attend school.] The

court noted, ‘if a State can compel a convict to perform uncompensated labor for the benefit of the State, as can constitutionally be done [citation omitted], a fortiori a State has the constitutional power to require a convict to participate in a

rehabilitation program designed to benefit the convict. ” Ibid.,

p. 272. Also see Renm”e v. Klein, 462 F. Supp 1131 (D.N.J. 1978).

For a review of the right to refuse treatment, see Comment,

“The Right Against Treatment: Behavior Modification and the

Involuntarily Committed,” Catholic University Law Review,

23, 1974 P. 774.

Depo-Provera is typically used in conjunction

with other psychotherapeutic or behavioral

treatments as a condition for probation. The

defendant, in agreeing to the conditions, is considered to have waived his constitutional

rights.

Critics have said that since research has demonstrated that Depo-Provera also reduces aggression, some prison administrators might attempt to use the drug on all inmates in an effort

to control violence and homosexual activity.

In fact, at least one criminal justice official has

advocated such use.77 Such broad and general

use of the drug might meet the Supreme

Court’s test for cruel and unusual punishment:

‘‘shocking to the conscience of reasonably civilized people.’’”

77 Comments of Oklahoma Corrections Director, Larry

Meachum, who “would like to see Oklahoma become a ‘frontrunner’ in studying the use of ‘chemical castration’ to control

sex offenders in overcrowded prisons, ” Quoted in, Comment,

“Medical Treatment for Imprisoned Paraphiliacs: Implementing a Modified Standard for Deliberate Indifference, ” Yale Law

& Policy Review 4 (1985), p. 251, at p. 275, note 106.

Ts~o~t v. Swver, 309 F. Supp. 362 (E.D. Ark. 1970)
Chapter 5

Technology for Record Keeping

and Information Sharing

The criminal justice system relies on information at each stage of the process. The information processing system has two primary

roles:

1.

2.

processing offender-relevant data (i.e., individual criminal records) in support of

criminal justice decisions; and

processing system-relevant data in support of management and administrative

decisions (e.g., manpower allocation and

case load projections).

This report, however, deals only with the first

of these roles. In this regard, criminal justice

officials have sought technologies that will

improve:

●

●

●

the collection, maintenance, processing,

and analysis of information;

the communication or dissemination of

data; and

the quality, accuracy, completeness, and

reliability of the data.

Criminal justice decisions at every level are

built on such information as the initial offense

and arrest reports, which describe the nature

of the crime and the characteristics of the victim, and the offender’s criminal history record. The seriousness of the offense and the

criminal history of the offender are critical to

making informed decisions.1 Contemporary

ID. Black and A. Reiss, “Patterns of Behavior in Police and

Citizen Transactions, Studies in Crime and Law Enforcement

in Major Metropoh”tan Areas (Washington, DC: U.S. Government Printing Office, 1977); R. Friedrich, “The Impact of Organizational, Individual, and Institutional Factors on Police

Behavior, ” Ph.D. dissertation, University of Michigan, 1977;

sentencing and parole guidelines have especially brought to light the importance of the

data quality, for it largely shapes the disposition an offender may receive at bail, sentencing, and parole release, and also impinges on

the rights of those never convicted or even formally accused of crime.

Other things being equal, the more serious

the offense, the greater the likelihood that the

prosecutor will formally charge and prosecute

the suspect, the judge will set a high bail or

no bail with the suspect confined until trial,

the judge will sentence to confinement, the

prisoner will be housed in maximum security,

and the parole board will deter release. But in

addition, the more serious the offender’s prior

criminal record, the greater the probability of

adverse decisions throughout the system.

Given the importance of criminal history

records, a central issue is the quality of those

records. Recent studies have called into serious question both the completeness and accuracy of criminal history records.

J. Goldkamp, Two Classes of Accused: A Study of Bad and Detentionin AmericanJustice (Cambridge, MA: Ballinger, 1979);

D.M. Gottfredson, C.A. Cosgrove, L.T. Wilkins, J. Wallerstein,

and C. Rauh, Classification for Parole Decision Poh”cy (Washington, DC: U.S. Government Printing Office, 1978); M.R. Gottfredson, “The Classification of Crime and Victims, ” Ph.D, dissertation, State University of New York at Albany, 1976; M.R.

Gottfredson and D.M. Gottfredson, Decisionnxdu”ng in Crinu”-

nal Justice: Toward the Rational Exercise of Discretion (Cambridge, MA: Ballinger, 1988); J. Hogarth, Sentencing as a Human Process (Toronto: University of Toronto Press, 1971); L.P,

Sutton, Van”ations in Federal Cr.inu”nal Sentences: A Statistical Assessment at the iVationsl Level (Washington, DC: U.S.

Govemrnent Printing Office, 1978).

REPORTING AND DATA QUALITY

The completeness, accuracy, and reliability

of such information became an important public policy issue in 1967 when the Report of the

President Coremission on Law Enforcement

and the Administration of Justice cited inadequate reporting and inaccurate data as a seri45
46

ous problem.2 The commission suggested a

national computerized repository to collect

summary criminal history information.3 Five

years later, the National Advisory Commission on Criminal Justice Standards and Goals

also called attention to the data-quality problem.’ And, also in 1973, the General Accounting Office criticized sharply the reporting levels

in State criminal history record systems, noting that many arrests and dispositions were

not reported to the State central repositories.5

Fifteen years later, according to most sources,

disposition reporting is still characterized as

too little, too late. In addition, there are serious problems with the level of reported arrests

and the accuracy of criminal history records.

This is in spite of the fact that automation has

brought about great improvements in data

2The President’s Commission on Law Enforcement and

Administration of Justice, The Challenge of Crime in a Free

Society (Washington, DC: U.S. Government Printing Office,

1967), pp. 244-271.

3President~s Com~9sion on Law Enforcement ~d Administration of Justice, Task Force Report: Science and Technology (Washington, DC: Government Printing Office, 1967), p. 75.

4U.S. National Advisory Commission on Criminal Justice

Standards and Goals, Report on the Crimi”nal Justice System,

p. 114 (1973). See also T.J. Madden and H.S. Lessin, “Privacy:

A Case for Accurate and Complete Criminal History Records,”

Villanova Law Review 22, pp. 1191, 1198.

Su s. Convess, office of Technology Assessment, An

Assessment of Alternatives for a National Compute&ed Cr.inu”-

md History System (Springfield, VA: National Technical Information Service, 1982), p. 93 [Hereinafter cited OTA, Ah%rnatives for a National CCl+]. Also, D.L. Doenberg and D,H.

Zeigler, “Due Process v. Data Processing: An Analysis of Computerized Criminal History Information Systems,” New York

Um”versity Law Review 55, (December 1980), p. 1158.

quality. 6 Automated systems make it more

practical and economical to implement tracking, editing, and disposition monitoring systems, as well as transaction logs and other

data-quality techniques.

Further, the telecommunications components of automated systems make the reporting of arrests and disposition easy, economical, and reliable. The Office of Technology

Assessment, in a 1982 survey, found that automated State repositories achieved a significantly higher average arrest reporting rate

(81.6 percent) than did nonautomated systems

(71.8 percent). There was a similar difference

for disposition reporting. Repositories using

automated systems had a 70.6 percent average disposition reporting rate, while repositories using manual systems had a rate of 56.3

percent.7

While some jurisdictions have been able to

design and operate systems with relatively

high disposition reporting levels, others have

not. Most States with good quality records police the quality of criminal history record data

as it is entered into their systems, including

uniform documentation, review and verification, and tracking systems. But many States

have not adopted these procedures.

Gp Wdmd, State cri~”n~ History Record Repositories:

An Overview (Sacramento, CA: SEARCH Group, Inc., forthcoming). [A report prepared for the Federal Bureau of Justice

Statistics.]

70TA, Alternatives for a National CCH, op. cit., see note

176, p. 94.

DISSEMINATION OF FBI CRIMINAL HISTORY RECORDS

The Federal Bureau of Investigation (FBI)

is allowed to disseminate criminal history

records to State and local officials for employment and licensing purposes; it may also disseminate criminal records to some private sector employers, including federally chartered

or insured banks, parts of the securities industry, the futures trading industry, and the nuclear power industry, with some conditions and

constraints.8 Under a “one-year rule” established by the Justice Department in 1974, because of congressional concern about the dis8’4The Dissemination of FBI Criminal History Records for

Employment and Licensing Purposes,” A Staff Report, reprinted in Access to FBI Records for Employment and Licensing Purposes: Hearings before the Subcommittee on Civil and

Constitutional Rights of the House Committee on the Judiciary, IOOth Cong., 1st sess,, 1988.
47

semination of inaccurate records, the FBI may

not disseminate any criminal record more than

a year old unless it shows the disposition of

the charge.

In September 1987, the FBI proposed that

the one-year rule be eliminated. Opponents of

the proposed change point out that the FBI’s

criminal history record, because it depends on

voluntary submissions from States, is seriously lacking in completeness and accuracy.

Approximately 50 percent of the arrest entries

do not show the disposition of the case, and

as much as 20 percent of the arrest-dispositional data that is shown may be erroneous.

A report prepared by staff for use of the Subcommittee on Civil and Constitutional Rights

of the House Committee on the Judiciary

pointed out that fewer than half of arrests

result in a conviction, and the subject is entitled to be presumed innocent.9 Half of all re9

1bid. -

quests for FBI criminal records are for employment and licensing purposes, and if an applicant

for a job or a license is refused on the basis

of an incomplete or erroneous FBI record, he

or she may suffer a substantial penalty even

though acquitted or even though the charge

was dropped.

The congressional staff report noted that

when an incomplete arrest record seems particularly relevant to employment being sought,

the FBI can go back to the agency that submitted the record and inquire about its disposition; when it does make this effort, it receives

disposition information within 3 days in 42 percent of the cases. The report therefore recommended that the one-year rule not be dropped,

but that the FBI take steps to reduce to a minimum those cases where relevant criminal records must be withheld, by improving its procedures for obtaining disposition information.

ELECTRONIC RECORDS AND DUE PROCESS

Virtually every court that has addressed the

data-quality issue has found that criminal justice agencies have a duty to implement procedures reasonably designed to safeguard the accuracy and completeness of criminal history

records. However, these courts have not unanimously, or clearly, articulated the source of this

duty, the standards for establishing a breach

of this duty, or the consequences of such

breach.

The courts generally do not require criminal justice agencies to maintain or disseminate

accurate records. Rather, the courts require

them to adopt policies and procedures that are

reasonably calculated to result in accurate

records. If an agency fails to implement such

procedures and if that failure causes some tangible harm to a person when records are used

or disseminated, courts are likely to find a violation and provide the subject with a remedy.

A Federal court found in 1974 that a criminal justice agency has a positive duty to maintain Criminal history records in an accurate and

reliable manner.10 Later that same year, the

District of Columbia Court of Appeals strongly

implied that any statutory authorization to collect and disseminate criminal history records

inherently required the agency to collect and

1049s F Zd 101T, 10zG (D.C. Ci.r. 1!174) (Menard II). This case

chronicled Menard’s 9-year struggle to remove his arrest record from FBI files, since he was released (by Los Angeles police) without being charged. Menard argued that because he had

only been detained and not arrested the FBI was without authority to maintain a record of his encounter with the Los Angeles police. The Federal Court of Appeals for the District of

Columbia stated that the FBI has a duty to be more than a

“mere passive recipient” of records received from the State and

local enforcement agencies, and also has a duty to carry out

its record keeping operations in a reliable and responsible manner. Although the Menard court decIined to speculate on the

extent to which the U.S. Constitution requires the FBI to maintain accurate and complete records, the court did find that the

Department of Justice’s statutory authority to “acquire, collect, classify and preserve” criminal justice records under 28

U.S,C. 534 carries with it the responsibility to discharge th”s

record keeping function reliably and responsibly and without

unnecessary harm to record subjects. See also, Louis F. Solirnine, “Safeguarding the Accuracy of FBI Records: A Review

of Menard v. Saxbe and Tarlton v. Saxbe, ” Um”versity of Cincinnati Law Review 44, (1975), pp. 325, 327.
48

disseminate those records in an accurate

manner.11

But the notion that the U.S. Constitution

requires criminal justice agencies to maintain

accurate and complete criminal records suffered

a setback 2 years later. The Supreme Court,

in Paul v. Davis,12 1976, held that a police

chief could circulate a flyer to local merchants

containing the names and photos of “active

shoplifters” without running afoul of the subjects’ constitutional rights. The Court said that

the U.S. Constitution does not require criminal justice agencies to keep official files, such

as arrest records, confidential. Moreover, even

if dissemination of an official record under

some circumstances could be of constitutional

interest, tangible harm to the subject must be

demonstrated before the dissemination could

violate any constitutionally protected interest.

This decision did not address the question

of whether the criminal justice agencies must

maintain accurate criminal history records.

But at least one Federal court has cited the

1976 decision as authority for arguing that

subjects do not have constitutional interest in

the handling of their criminal records. A Federal district court held that a person against

whom charges were dropped shortly after his

arrest had no constitutional interest that required the purging of the arrest entry from the

FBI’s files.13

Courts have continued to find that criminal

justice agencies have a duty to make reasonable efforts to ensure the accuracy and completeness of criminal history records. It is unclear whether the legal basis for such a duty

1 IT~Jton V. s~~ 507 F. 2d 1116, 1122, 1123 (D.C. Cir.

1974); this expanded the decision in Menard, The court implied

that even in the absence of a statutory obligation, agencies have

constitutional and common law obligations to ensure accuracy

in the collection and dissemination of criminal justice information.

12424 U.S. 693, 713 (1976); see also, M. Elizabeth Sfitht

“The Public Dissemination of Arrest Records and the Right

to Reputation: The Effect of Paul v. Davison Individual Rights,”

American Journal of Crinu”md Law 5 (January 1977), p. 72.

13Row~ett v. ~~=, 446 F. SUpp. 186, 188 (W.D. Mo. 1978).

Moreover, the opinion criticized Tarlton v. Saxbe saying that

Tar)torI incorrectly implied that constitutional privacy and due

process rights may give subjects an interest in the quality of

data in their criminal history records.

is constitutional. The same year the Supreme

Court decided Paul v. Davis, for example, a

Federal district court held that the FBI’s failure to reflect an acquittal entered 27 months

prior to the lawsuit constituted a breach of the

FBI’s duty to maintain accurate records.”

Again, the district court did not commit itself about whether this duty derived from the

Constitution or from the FBI’s record keeping statute. The court said that it felt no need

to identify the source or extent of the FBI’s

duty because the record keeping activity at issue violated “even a minimal definition of FBI

responsibility. “15

A Federal district court looked to statutory

law, the Federal regulations, the U.S. Constitution, and common law doctrines to support

its determination that the administrator of the

Rhode Island National Crime Information Center (NCIC) has a duty to establish reasonable

administrative mechanisms designed to minimize the risk of inaccurate records.16

The courts have also pondered over the extent of the burden which the victim of such

mistakes should carry in order to establish a

breach of this duty. A California court said that

a criminal justice agency does not have a duty

to correct a record on the basis of an “unsubstantiated” claim that the record contains inaccurate or incomplete information.17 The

“S~~~~ v. Um.ted States, 389 F. Supp. 721 (W.D. Pa. 1975),

aff’d, 535 F. 2d 1247 (3rd Cir. 1976), cert. denied, 431 U.S. 919

(1977).

1

5

1 bid., p. 721.

16Te~t “. ~inquist, 451 F. Supp. 388, 394 (D. R.I. 1978). ‘he

plaintiffs brought a civil darnage action against the East Providence police officers for deprivation of constitutional rights (false

imprisonment) and for various State tort claims, including false

imprisonment, libel and slander. The police officers, who had

acted on out of date information, in turn, sued the regional administrator of the NCIC. The court decided that the arresting

officers may, indeed, if found liable to the plaintiff, have a cause

of action against the regional administrator of the NCIC for

breach of a duty to provide accurati information. Whether this

duty was established by statute, regulation, the U.S. Constitution or common law, the court did not specify.

‘

7 White v. State 95 Cal, Rptr. 175, 181 (Ct. App. 1971). The

court denied a damage suit against the State repository for negligent record keeping and dissemination.

In some cases the courts have evidently blessed data quality

settlements worked out by litigants. In those suits, the plaintiffs charged that they had been falsely arrested, based on inaccurate warrant information, thereby violating their constitu-
49

plaintiff must be able to demonstrate this, the

court said, on some objective basis.

The courts have also considered the question of who is responsible for requesting that

the FBI correct or amend State or local records

held by the FBI. Consistently, courts have

placed this burden on the subject of erroneous or inaccurate records, rather than on the

agencies that collect, keep, use, and disseminate them. ’a In the absence of a specific statutory command to maintain accurate and complete records, a person must demonstrate some

harmful use or dissemination of his or her records to have much chance of obtaining judicial relief.

If one can demonstrate the dissemination or

use of inaccurate or incomplete criminal history records, an injunction can be obtained requiring the inaccurate or incomplete information to be corrected or expunged.19 An agency

may also be subject to an action under the Civil

Rights Act (often called “Section 1983 Ac-

——— ——.

tional and civil rights. The settlement agreements reportedly

set forth specific data quality procedures and criteria which the

criminal justice agency must follow to ensure the accuracy of

warrant files. D. Olmos, “Civil Rights Issues Fuel L.A. ’s Warrant System Changes, ” Computerwork.i, Oct. 29, 1984, p. 10;

D. Raimondi, “False Arrests Require Police To Monitor Systems Closely, ” ComputerworM, Feb. 25, 1985, p. 23.

l~The Sixth Circuit held in Pruett V. Levi, 622 F.2d 256, 258

(6th Cir. 1980), that a subject did not have a basis to sue the

FBI merely because the FBI had refused to act on his generalized claim that the FBI was holding an inaccurate, locally generated criminal history record. He must first direct his claim

to the appropriate State or local law enforcement agency, and

if still aggrieved he may then direct a specific claim to the FBI.

The Sixth Circuit also observed in Pruett that a simple claim

that an agency is maintaining an inaccurate record, without

alleging a specific, adverse effect from the use or dissemination

of the record, does not, in light of the Supreme Court’s decision

in Paul v. Davis, create a cause of action. In McKnight v. Webster, 499 F. Supp. 420, 422 (E.D. Pa. 1980), a Federal district

court set forth a slightly more detailed procedure for plaintiffs

to follow in attempting to compel the FBI to correct allegedly

inaccurate or incomplete criminal history records. A Federal

prisoner, sought expungement of allegedly incomplete records

maintained by the FBI and the local police. The court found

that the FBI is not required to correct inaccuracies in State

or locally created records unless the corrected information is

supplied to it by the law enforcement agency, but does have

an obligation to forward a request for correction of records to

the appropriate State or local law enforcement agency. See also,

Hollingsworth v. City of Pueblo, 494 F. Supp. 1039, 1040 (D.

Colo. 1980), for the same result.

19L.N. Mullman, “Maney v. RatcMf; Constitutional Law;

Fourth Amendment; Computerized Law Enforcement Records, ”

Hofstra Law Review 4 (1976), p. 881, p. 884.

tions’’).20 Section 1983 gives individuals the

right to bring an action for deprivation of their

Federal constitutional rights caused by persons acting under State authority. However,

those bringing an action must surmount several legal hurdles. One must be able to demonstrate that the agency violated one’s constitutional rights and that some tangible harm

occurred as a result. One may still be unable

to recover damages if the government can demonstrate that the State or local official acted

reasonably and in good faith. The courts have

generally held that the outcome depends on

whether the agency made reasonable efforts

to establish a record keeping system designed

to safeguard against errors.

The most frequent result of a breach of an

agency’s duty to maintain accurate and complete criminal history information is a finding

by a court that an arrest or search based on

erroneous information is illegal. Virtually all

such decisions find that a constitutional violation occurs as part of an improper arrestor

search; that is, it does not rest directly on use

of inaccurate or incomplete records, but an

agency’s breach of its duty to disseminate accurate and complete records may result in improper arrests or searches. An arrest made

solely on the basis of an inaccurate NCIC entry, uncorrected for 5 months, was found to

be a deprivation of liberty without due process of law. Therefore, any evidence seized as

a result of such an arrest had to be suppressed.”

Numerous other decisions have ordered the

suppression of evidence obtained during the

course of arrests based on mistaken information in an outstanding warrant file or in other

types of criminal justice files. The courts have

not set definitive rules on how much time lag

204z u s c 1983. This section of the Civil Rights Act reads . . .

as follows: “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state or territory,

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the party injured in

an action in law, suite in equity, or other proceeding for redress. ”

2’Unitea’ States v. Mackey 387 F. Supp. 1121, 1125 (D.Nev.

1975).
50

is permissible for the police, relying on out-ofdate and therefore inaccurate information, to

establish probable cause for an arrestor search.

The growing use of computers to operate information systems seems to be encouraging

courts to minimize allowable periods of

delay. 22

In judging the validity of an arrest or a

search, the courts have used a standard that

takes into account the good faith of the criminal justice agency as well as the officers in the

field. Under Whiteley v. Warden,23 the legality of an arrest must be evaluated not only on

the basis of information used by the arresting

officer, but also on information that was supplied to the officer. The accuracy and sufficiency of the data system must be considered.

But when a warrant has been issued, an officer

can rely on it unless it is objectively unreasonable to do so. Thus, arrests made under magistrate-issued warrants would be harder to challenge than arrests made without warrants.

On the other hand, in People v. Ramirez,24

for example, a California court held that an arrest based solely on a recalled warrant was invalid and the fruits of a search incident to that

arrest had to be suppressed. The court said

that it is not enough for an officer in the field

to rely on information communicated to him

———— 22AT0 N.Eozd 1303 (Iu. 198A). In PetterSon v. Um”ti ‘tates!

301 A.2d 67 (D.C. 1973), the court found that probable cause

for an arrest existed when an officer relied on a list of stolen

cars provided by a police radio dispatcher, which was, in turn,

based on information from the National Crime Information

Center’s computer. The car at issue was reported stolen but

had been recovered some 15 hours earlier, and the NCIC entry

had not yet been updated to reflect the recovery.

23401 u.S. 560 (1971).

24194 cd. Rptr. ASA, 461 (1983)-

through “official channels.” The test is the

good faith of the law enforcement agency of

which the officer is a part.

It is a well established principle of law that

a defendant cannot be sentenced on the basis

of materially false information. This principle

applies to criminal history records that contain information relative to sentencing. Several courts have held that sentences based on

false information from a defendant’s criminal

history record will result in the sentence being overturned and the defendant resentenced.25

The end result of all of these confusing precedents appears to be that neither law nor constitutional precedents have yet definitively

adjusted to the information age. A criminal

justice agency’s duty to maintain or disseminate accurate and complete information has

also been litigated in tort actions.26 Thus, a

fair reading of the case law suggests that as

of the mid-1980’s criminal justice agencies need

not guarantee or ensure record accuracy, but

have a duty to put in place a system that is

reasonably designed to produce accurate and

complete information. The courts, while more

or less convinced of the existence of this duty,

have not yet been clear as to whether its source

is to be found in the U.S. Constitution. The

many challenges to constitutional principles

have not yet been resolved. The issue will no

doubt reappear in court often in the years

ahead.

25 Un.i”ted States v. l%cker, 404 U.S. 442, 447 (1972).

Z13~w v. Um”td Statis, 520 F. f%pp. 1200, 1202 (SOD-N-Y.

1981).
Chapter 6

Conclusions

New technologies are transforming every

component of the criminal justice process and

will potentially make law enforcement much

more efficient and more effective. They also

raise questions about how constitutional principles, especially those protections and rights

found in the Fourth, Fifth, Sixth, Eighth, and

Fourteenth Amendments, apply to people accused of or convicted of crime.

In investigating crimes, identifying suspects, and gathering evidence, technologies

(especially electronic technologies and technologies based on the biological and social sciences) are changing the nature of police work.

When police capabilities are enhanced, the possibility that those capabilities will be misused

—either deliberately or inadvertently—is also

increased. Lawmakers and courts may need to

reexamine both the scope of constitutional limitations on police power and their application

to particular activities and procedures.

Electronic surveillance technologies have

repeatedly challenged the scope of protection

against “unreasonable searches and seizures”

(Fourth Amendment) because information is

no longer necessarily embedded in “persons,

places, papers, and effects” as it was in 1787,

and because technology repeatedly modifies

what the Supreme Court has called ‘a reasonable expectation of privacy. ” Biological technologies promise to raise similar questions.

Both remote sensing and “intimate sensing”

(the testing of bodily conformations, fluids and

tissues, or mental processes), as well as the

aggregation or accessing of information in computer databases, have enormously expanded

the capability of government to gather and use

information about individuals. They may become more pervasive and more invasive in the

future.

If nonlethal or less-than-lethal weapons, still

generally unsatisfactory for most law enforcement purposes, become highly effective and

reliable in the future, then the use of conventional weapons would almost certainly be challenged as an unnecessary or disproportionate

use of force. What is judicially permissible and

socially acceptable at one time has often been

challenged when technology changes.

Throughout the criminal justice system, officials continually make decisions that require

specialized knowledge, judgment, and discretionary choices. Arrests, pretrial release, sentencing, probation, and parole, for example, require complex choices. Social science research,

statistical analysis, predictive models, simulation, expert systems, and other computerassisted techniques are increasingly being used

to aid those who must decide. More consistent decisions is one important objective, and

this supports the constitutional values of due

process and equal protection of the laws. At

the same time, techniques that are derived

from the study of groups and populations,

when applied to individuals, maybe challenged

as potentially discriminatory.

There are currently strong and conflicting

pressures to increase the rates of apprehension

and punishment of offenders, on the one hand,

and to alleviate the overcrowding of prisons

on the other. This is leading to new emphasis

on alternatives to prison, including privately

run prisons, home arrest using electronic monitoring, and the “treatment” of antisocial and

violent behavior by drug and hormone therapy. Some of these alternatives may be challenged on the grounds that they violate constitutional protections against cruel and

unusual punishments or constitutional rights

to privacy, due process, and equal protection.

Yet to the extent that these alternatives are

perceived as preferable to prison, they maybe

demanded on the grounds of equal protection

of law or nondiscrimination.

As record keeping and sharing become an

integral and ever more essential component of

criminal justice, issues related to data quality

and confidentiality become very important.

51
52

Repeated challenges to the legitimacy of civil

justice administration have been made on

these issues. Procedures can be built into or

programmed into automated information systems that greatly enhance the reliability, correctability, and confidentiality of data in criminal justice records, but many States and, in

some cases, Federal agencies are not using

these procedures. Courts have ruled that criminal justice agencies have a duty to implement

such procedures, but they have not generally

required agencies to keep and disseminate accurate data. In general, they still leave the burden of forcing agencies to correct information

on the shoulders of the person about whom the

data is collected. Neither law nor constitutional

precedents in this area have yet accommodated

to the problems and perils that accompany the

benefits of the information age.

Many of the technological innovations reviewed in this report can offer significant social benefits, including the reduction of crime

and the just and equitable administration of

justice. Unfortunately, these same recent advances in technologies have also created the

tools that may widen the net of social control,

and have the effect of chilling the exercise of

constitutional rights. That these technologies

are well intended is not questioned. As Justice Brandeis noted nearly 60 years ago:

Experience should teach us to be most on

our guard to protect liberty when the Government’s purposes are beneficent. Men born to

freedom are naturally alert to repel invasion

of their liberty by evil-minded rulers. The

greatest dangers to liberty lurk in insidious

encroachment by men of zeal, well-meaning

but without understanding.

1

Applying Justice Brandeis’ admonition t o

the introduction of technology in a democratic

society, government must of necessity establish protective boundaries within which new

technologies will operate. Technology throughout history has been a double-edged sword ,

equally capable of improving or endangering

a civilized world. The benefits of these technologies are clear and should not be los t

through fear of potential abuses; those abuses

can be avoided through the diligent attention

of citizens, elected officials, the courts, criminal justice administrators, and practitioner s

of science and technology .

IDi~sent~g Opfion of Justi~ Brandeis, OhZWted v. Um”t~

States, 277 U.S. 438 (1928).
Appendix

Acknowledgments

Criminal Justice, New Technology, and

The Constitution Workshop, Apr. 21,1987

Alfred Blumstein, Workshop Chairman

Dean

School of Urban and Public Affairs

Carnegie Mellon University

S.S. Ashton, Jr.

Assistant Director

Bureau of Justice Statistics

U.S. Department of Justice

Robert R. Belair

Partner

Kirkpatrick & Lockhart

James Duggan

Director

New Hampshire Appellate Defender

Program

Stephen Goldsmith

Prosecuting Attorney

Office of the Prosecuting Attorney of

Marion County, Indiana

Kay Knapp

Executive Director

U.S. Sentencing Commission

Henry Lee

Chief

Connecticut Forensic Laboratory

Peter Low

Hardy Cross Dillard Professor of Law and

John V. Ray Research Professor

School of Law

University of Virginia, Charlottesville

Dan Manville

Research Associate

American Civil Liberties Union Prison

Project

David J. Roberts

Director

Research and Statistics Program

SEARCH Group, Inc.

Judith A. Ryder

Manager

Corporate Communications

SEARCH Group, Inc.

Richard Saferstein

Chief Chemist

Forensic Science Bureau

New Jersey State Police

Tom Smith

Assistant Director

Criminal Justice Section

American Bar Association

James Starrs

Professor of Law

National Law Center

The George Washington University

William Stunz

Professor

School of Law

University of Virginia

Additional Contributors and Reviewers

Gordon Bermant

Senior Research Associate

Research Division

The Federal Judicial Center

Edward Chaszar

Professor

Department of Political Science

Indiana University of Pennsylvania

Mary Huff

Publicist

Fast Forward Inc.

R. Paul McCauley

Professor, Department of Criminology

Indiana University of Pennsylvania

Joseph L. Peterson

Head

Department of Criminal Justice

University of Illinois at Chicago

53
54

Richard Rau

Program Manager

National Institute

Annesly Schmidt

Research Analyst

National Institute

William Thomas

Principal

OTA Reviewers

of Justice Pris Regan

Communication and Information

Technologies Program

Mark Nadel

of Justice Communication and Information

Technologies Program

Fred Wood

Communication and Information

Law & Science Associates Technologies Program

o

83-355 ( 64)