Is Prop 69 Constitutional?

[davefoc]

Beyond the constitutional issues I think absolutely that the DNA of convicted incarcerated felons should be collected.

I think collecting the DNA of convicted felons on parole might be reasonable also.

But how about convicted felons who have completed their incarceration and parole. Suppose a sex crime has been convicted in the vicinity of where they are living, should the cops be able to force them to give up a sample without probable cause? I suppose I'd say no to that.

 

[Rob Lister]

But how about convicted felons who have completed their incarceration and parole. Suppose a sex crime has been convicted in the vicinity of where they are living, should the cops be able to force them to give up a sample without probable cause? I suppose I'd say no to that.

Assuming I'm reading your hypothetical correctly (typos exclude the certainty of that), that is exactly the delimma that keeps me on the fence. Frankly, the splinters of the rough-hone rail upon which I am sitting are beginning to chafe.

 

[TragicMonkey]

On the one hand is individual liberty and the presumption of innocence...and on the other is the recidivism rate of criminals.

How about collecting everyone's DNA at birth? Such a store of information could certainly be abused by evil employers and insurers and such...but it could also be used for good. Find a DNA sample at the crime scene? Run a database query before you round up the suspect. Do the benefits of such a system outweigh the intrusion and risks? I can see it both ways.

 

[Tony]

I'll give them a sample of my DNA via Cleveland steamer.

 

[TragicMonkey]

I'll give them a sample of my DNA via Cleveland steamer.

I can't imagine any cops would be in a hurry to accuse you of anything twice!

 

[AtheistArchon]

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

- When I joined the army back in '96, they made every soldier give two vials of blood specifically for DNA testing and storage. This was of course in the event there's not much left of your body and you need to be identified, but it also provides a pretty rock-solid database for any future crimes you may commit. Not that I'm complaining about that... I don't believe any insurance companies have access to my DNA on file with the military, even if law enforcement personnel might.

- They took my blood in a syringe and then squirted it on two quarter-sized cotton pads, folded this into an airtight flexible metallic envelope, and sealed it. More than enough blood to be certain in a DNA test. If it were me suggesting the collection plan in CA, I'd run things about the same way.

 

[TragicMonkey]

They took my blood in a syringe and then squirted it on two quarter-sized cotton pads, folded this into an airtight flexible metallic envelope, and sealed it. More than enough blood to be certain in a DNA test. If it were me suggesting the collection plan in CA, I'd run things about the same way.

Tut tut. You are now open to accusations of vampirism as well as 1984-ism.

 

[AtheistArchon]

Tut tut. You are now open to accusations of vampirism as well as 1984-ism.

- As Dave Chapelle would say, "I plead da FIF."

 

[shanek]

In California, one of the propositions would require criminals and people arrested for felonies to provide DNA samples. Moreover, it's retroactive.

Well, the retroactive part is a clear violation of the Constitution's prohibition of ex post facto laws. You can make something illegal or change the severity or punishment of a crime and apply it to people who have already committed the act.

So what's the thinking on this?

Probably unnecessary election-year tough-on-crime posturing that'll most likely go away. On the other hand, this is the same state that brought us "three strikes"...

 

[shanek]

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

Hmmm...anyone seen the movie Gattaca?

 

[Rob Lister]

Hmmm...anyone seen the movie Gattaca?

I did and I failed to see it in the negative light most others did. It was painted in a negative light so I don't fault others, I just consider them easily spun.

 

[Rob Lister]

- When I joined the army back in '96, they made every soldier give two vials of blood specifically for DNA testing and storage. This was of course in the event there's not much left of your body and you need to be identified, but it also provides a pretty rock-solid database for any future crimes you may commit.

If memory serves, and I'm not at all sure that it does, that DNA sample may only be used to identify your corpse in case you become...er...otherwise unrecognizable. It can't, or rather is not supposed to be used for other purposes. I'll hunt the law/regs when I get a chance but if you know otherwise, please inform.

 

[BPSCG]

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?

Haven't been through the entire thread, so slap me around if this has already been addressed:

1) Insurance companies don't dislike the idea of risk. If they did, they wouldn't be in the insurance business to begin with.

2) They would be delighted to be able to predict possible future expenses. But that wouldn't be any different from today. They set rates based on the likelihood that they're going to have to pay out, which is why your 16-year-old testosterone-poisoned son is going to pay more for car insurance than your Presbyterian minister who only drives his Volvo one mile each Sunday. They can't predict exactly what the risks and costs are going to be for each individual, since they have to work in the fuzzy world of statistics and actuarial tables, but they can predict risks and costs for a large population of insureds.

3) If government doesn't interfere with the insurance market, high risk people will still be able to get health and life insurance, just as high-risk people can still get credit cards. They may have to pay more, just as high credit risk people have to pay more for credit. But there will always be a market for those people - just as there is always a market for testosterone-poisoned 16-year-olds.

Part of the problem is that government does interfere with the market. Some states won't let you buy health insurance from out-of-state vendors. The result is market distortions, where insurance vendors who may have lower rates aren't allowed to compete. What's the explanation for that?

Yeah, if your insurance company finds out you have a gene that's likely to cause cancer when you turn 35, they may raise your rates based on that. But what happens if they also find that you have a gene that enables you to gobble down a dozen donuts every day and still have singe-digit cholesterol? In a free market for insurance, wouldn't they be forced, by competition with other insurance companies, to drop your rates because you have that gene?

Not all genes are bad, you know...

 

[TragicMonkey]

1) Insurance companies don't dislike the idea of risk. If they did, they wouldn't be in the insurance business to begin with.

Which is why most of the big insurance companies have opened sidelines into investment services and banking. My own insurance company runs millions into the red every year from insurance--they're staying successful solely because their banking is paying for it. They're still in the top half of Fortune 500 companies, but not from doing their original business.

3) If government doesn't interfere with the insurance market, high risk people will still be able to get health and life insurance, just as high-risk people can still get credit cards. They may have to pay more, just as high credit risk people have to pay more for credit. But there will always be a market for those people - just as there is always a market for testosterone-poisoned 16-year-olds.

Part of the problem is that government does interfere with the market. Some states won't let you buy health insurance from out-of-state vendors. The result is market distortions, where insurance vendors who may have lower rates aren't allowed to compete. What's the explanation for that?

If government didn't interfere in insurance regulation, there would not be any coverage at all for some people. States like NC require you to possess auto insurance, and the law mandates that a citizen can get insurance from the insurer of his choice among any of those licensed to do business in NC. The insurer can charge maximum rates, but they can't reject. NC thought it was necessary since there were some bad risks who simply got rejected by all the companies as too much of a risk.

There are also state-controlled insurance pools for the worst risks unable to get coverage elsewhere. Flood insurance is actually run by the government--you pay the company, and they pay the government flood insurance corporation. The reason is because floods do so much damage, there is simply no profit in providing it.

Reinsurance is also government mandated--without that "interference" we'd have insurers defaulting left and right every time a hurricane struck. When's the last time you heard of a big insurer going insolvent? Not all government regulation is bad.

As for why you can't get out-of-state vendors...you can. But:
insurance is always regulated on the state level. You can only obtain insurance from a company that meets the state's regulations and gets a license to insure in that state. Of course a state is not going to allow someone to get insurance coverage that doesn't meet the state's requirements. Virginia doesn't require uninsured motorist coverages and NC does. Nobody in NC is going to get a cheaper VA policy legally, because they'd be underinsured in violation of NC law. If the insurer wants to do business in a state, it has to get licensed and agree to issue policies in accordance with that state's laws. If insurers could insure across state lines unlicensed, the states would lose the ability to keep the policies in accordance with state laws.

(edited to add: my God, this is boring stuff. How many times did I use the word "insurance"? And earlier today I was all about the strippers and bare-buttocked spanking on TV.)

 

[AtheistArchon]

- Hah! My official word for the day:

BUTTOCKED.

 

[Mr Manifesto]

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.

I love it when geeks use the word 'nay', usually before a capslocked word. Nothing twatty about it at all.

 

[Dorian Gray]

Not all slippery slopes are a fallacy

Yes, all of them.

 

[Art Vandelay]

Wouldn't this be like finger-printing?

I thought about that, but decided "let's not open that can of worms".

Dorian Gray

Warning: slippery slope (fallacy) ahead.

So what you're saying is that you feel that if things continue in a similar vein, there is a good chance of things escalating to a slippery slope fallacy? Do you see any irony in that?

Rob Lister

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 don't know. Similar things (such as fingerprints) have not been declared unconstitutional.

DNA can be, and usually is, obtained by a simple cheek swab (If you watched CSI you know these things).

And one person can have two different sets of DNA. According to CSI.

phildonnia

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

Perhaps I am misreading it, but it appears that if the suspect is acquitted, he may submit a request to have his entry expunged, and that request may be rejected at will. And there is still the question of why the DNA should be available in the interim.

shanek

Well, the retroactive part is a clear violation of the Constitution's prohibition of ex post facto laws.

Clear to you and me, but not to the people in charge. They will probably argue that the primary intent is not to punish the criminals; any inconvenience is a side-effect. There was a case where a law changing the statute of limitations was challenged, as it would allow prosecutions for crimes committed before the law in question was passed. It was upheld on the grounds that immunity from prosecution was not something protected by the ban on ex post facto laws, or something like that. It's likely the court will find that privacy, too, is not protected by it.

And to clarify: when I asked what the thinking was, I meant "How are they planning on defending this?"

Actually, another question just occurred to me: suppose a proposition which the government did not support were to pass. Could the government arrange for someone to challenge the proposition, then decline to defend the proposition?

 

[SezMe]

If memory serves, and I'm not at all sure that it does, that DNA sample may only be used to identify your corpse in case you become...er...otherwise unrecognizable. It can't, or rather is not supposed to be used for other purposes. I'll hunt the law/regs when I get a chance but if you know otherwise, please inform.

And the original Social Security legislation required that the Social Security Number only be used for Social Security purposes. When was the last time you filled out ANY application that did not require your SSN?

 

[Ed]

Actually, another question just occurred to me: suppose a proposition which the government did not support were to pass. Could the government arrange for someone to challenge the proposition, then decline to defend the proposition?

I think that there are a number of recent cases where a prop passed but it was never implimented because the government disagreed. Shanik, you remember?