Is Prop 69 Constitutional?

[Art Vandelay]

In California, one of the propositions would require criminals and people arrested for felonies to provide DNA samples. Moreover, it's retroactive. I'm not quite clear on whether that applies just to criminals or to arrestees as well, but it appears to me that soeone who arrested years ago, and who has since been cleared, could be forced to supply DNA samples for a DNA databank.

Now, I recognize that there are cases in which there would be probable cause to collect samples. But apparently this proposition would allow investigators to completely dispense with the probable cause requirement; once they had the probable cause for the arrest, DNA collection would be included, even if no connection is shown between DNA and the alleged crime.

So what's the thinking on this? Is it that if the police have enough evidence to support an arrest, they have enough to require a sample?

 

[davefoc]

I haven't read the proposition yet but I thought it applied to people incarcerated for felonies. I guess I was wrong.

If it extends beyond that then it seems there may be some constitutional issues associated with it.

But even if it isn't extended beyond people incarcerated for felonies there is the issue of whether it can be applied to people already convicted of felonies. I wonder about that too. It seems like there's some constitutional provisions against ex post facto laws. Sometimes after the fact increases in sentences have been voided because of that (I think), and it sounds like prop 69 might fall under that. But if it did, almost any change in prison rules might be subject to review based on this so it sounds like interpretting ex post facto law restrictions broadly might be unworkable.

 

[Grammatron]

Wouldn't this be like finger-printing?

 

[Ed]

Wouldn't this be like finger-printing?

No Bill of Attainder or ex post facto Law shall be passed.

BUT, it seems to me that laws could be passed that require DNA for licsensing for various things or as a condition of employment.

 

[TragicMonkey]

BUT, it seems to me that laws could be passed that require DNA for licsensing for various things or as a condition of employment.

Which will be lovely trying to get health insurance, once they start collecting DNA and deciding you have risky genes. Or your employer sees potential future health problems and decides not to hire you.

 

[Dorian Gray]

Warning: slippery slope (fallacy) ahead.

 

[Ed]

Warning: slippery slope (fallacy) ahead.

Not all slippery slopes are a fallacy.

 

[TragicMonkey]

Warning: slippery slope (fallacy) ahead.

Not entirely. Insurance companies are not to be trusted. They already dislike the idea of risk, which is the whole point of insurance to start with, and would be delighted to be able to predict possible future expenses. They charge a lot more to insure the obese because they're more likely to have heart attacks...you think they wouldn't leap at the chance to drop people who are likelier to end up with cancer?

 

[Rob Lister]

It does not, as described, appear to pass my personal constitutional muster. ibid Ed's quote.

The CA supreme court certainly overturn it, that's a no brainer.

This will make it to the U.S. supreme court in short time and they will overturn it also.

I wager 5 cyberbucks. Any takers?

 

[TragicMonkey]

This will make it to the supreme court in short time. I'm betting they will overturn it.

I wager 5 cyberbucks. Any takers?

Hmm. Normally I'd agree with you...but if they decide that this would be good tool for the "War on Terror" it's much more likely to stick around. If nobody thinks of the terrorists it'll get canned.

 

[Rob Lister]

Not entirely. Insurance companies are not to be trusted. They already dislike the idea of risk, which is the whole point of insurance to start with, and would be delighted to be able to predict possible future expenses. They charge a lot more to insure the obese because they're more likely to have heart attacks...you think they wouldn't leap at the chance to drop people who are likelier to end up with cancer?

I think most everything you wrote is wrong, except the first and second sentence. Specifically, the assertion about risk.

Suppose the insurance buyer had perfect knowledge of future events but the insurance seller had no knowlege.

The seller would be out of business in no time flat.

Insurance is based on the unknown; risk, if you will.

The seller MUST have equal access to whatever data the buyer has, otherwise it is off-odds bet and the premiums and/or conditions should -- nay, MUST -- reflect that.

 

[Rob Lister]

Hmm. Normally I'd agree with you...but if they decide that this would be good tool for the "War on Terror" it's much more likely to stick around. If nobody thinks of the terrorists it'll get canned.

Well, then take the bet! I'll give you...just you...2/1 odds.

 

[Ed]

It does not, as described, appear to pass my personal constitutional muster. ibid Ed's quote.

The CA supreme court certainly overturn it, that's a no brainer.

This will make it to the U.S. supreme court in short time and they will overturn it also.

I wager 5 cyberbucks. Any takers?

What about retinal scans that can be obtained non-invasively? Suppose when one is being photographed for ... anything--- they could snag the information?

To get a passport you need positive ID, suppose the argument for DNA/RI was that this is really the only positive ID possible and since the Gov. can ask for less good ID and this is better, why not? Drivers liscenses too, also military/government ID's.

I'll take your paltry bet on this one, Mr. Big Spender.

(note to self: What would Lister consider a bet if he were putting up real money? Must investigate, look up his DNA for a start)

 

[TragicMonkey]

The seller MUST have equal access to whatever data the buyer has, otherwise it is off-odds bet and the premiums and/or conditions should -- nay, MUST -- reflect that.

But the insurance companies don't want to play fair--they want to make money.

I'm of the opinion that there is a growing crisis in the insurance industry because payouts are too high and incomes too small, so the insurers are accepting less risk and charging more for what they do accept. It's harder and harder to get insurance, and costs are rising. But all of that's probably another thread, for a day when I'm less depressed about my monthly medical insurance bill I just got.

 

[Rob Lister]

What about retinal scans that can be obtained non-invasively? Suppose when one is being photographed for ... anything--- they could snag the information?

THAT is a different situation and is not currently under review by this (Lister) court. However, I'll answer that so long as I'm not on the record (don't tell anybody...okay?). It depends on the state constitution in which this procedure takes place. The U.S. constitution does not address it, directly or indirectly, so it is up to the states.

To get a passport you need positive ID, suppose the argument for DNA/RI was that this is really the only positive ID possible and since the Gov. can ask for less good ID and this is better, why not? Drivers liscenses too, also military/government ID's.

ibid your quote concerning art Article I, Section 9. The above does not represent or address a specific person or group of persons, it is simply a bill that pertains to all persons. It is my assertion, however, that, at least as far as the FEDERAL government is concerned, the data must be used specifically for the purposes for which it is gathered, and cannot go beyond that purpose without probable cause (when I dig myself a hole, I dig with gusto)

I'll take your paltry bet on this one, Mr. Big Spender.

(note to self: What would Lister consider a bet if he were putting up real money? Must investigate, look up his DNA for a start)

Five bucks seems about right, real or cyber, at least until after the elections.

 

[Tmy]

What exaclty would be the DNA?? Blood? Semen?? What are you supposed to be giving them.?


This kinda bothers me. Unlike fingerprints, DNA can be planted.

 

[TragicMonkey]

This kinda bothers me. Unlike fingerprints, DNA can be planted.

Fingerprints can be planted, too. You can do it yourself, and transfer visible prints from one glass to another with a piece of tape. We just hope the investigators note the presence of adhesive around the fingerprints.

DNA planting doesn't require technology, either. I've often thought that if I were to commit a crime, I'd collect lots of strands of hair from total strangers, found frequently in the pages of library books. Strew them around the crime scene to create a plethora of possible suspects.

"Did you find any hair, sergeant? Excellent! Foolish criminal, leaving DNA for our sophisticated technology to identify him with. How many different people were present during the crime?"

"Sixty-eight."

 

[Rob Lister]

What exaclty would be the DNA?? Blood? Semen?? What are you supposed to be giving them.?


This kinda bothers me. Unlike fingerprints, DNA can be planted.

Fingerprints can also be planted but it is more difficult. DNA can be, and usually is, obtained by a simple cheek swab (If you watched CSI you know these things).

I'm a bit torn on the issue myself but I think the 'slippery slope' potential represents more of a danger than the benefit the data provides.

I could might maybe possibly be convinced otherwise ... especially on a bet.

 

[phildonnia]

If the suspect is not convicted, then the DNA sample will be destroyed. (Section 299(a))

Edited to add: (That's section 299 of the code, but section 9 of the proposition)

 

[Rob Lister]

If the suspect is not convicted, then the DNA sample will be destroyed. (Section 299(a))

Edited to add: (That's section 299 of the code, but section 9 of the proposition)

Oddly, fingerprints are not.