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Criminal Justice, New Technologies, and the Constitution (May 1988)

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Criminal Justice, New Technologies, and the Constitution (May 1988) 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 Technolo- gies, and the Constitution, OTA-CIT-366 (Washington, DC: U.S. Government Print- ing 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 con- ducting a study of Science, Technology, and the Constitution. At the request of the Committee on the Judiciary of the House of Representatives, and its Subcom- mittee on Courts, Civil Liberties and the Administration of Justice, OTA is exam- ining ways in which continuing scientific advances and new technological devel- opments 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, Tech- nology, 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 cur- rent pressures for reduction of crime, the just and equitable administration of jus- tice, 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 crimi- nal justice and, as in all of the reports of this series, addresses that delicate bal- ance to be maintained between the national interest and individual rights. JOHN H. GIBBONS Director ///. Science, Technology, and the Constitution Project Review Panel William Carey Monroe Price, Dean Advisor to the Carnegie Foundation of Benjamin Cardozo Law School New York New York, NY Washington, DC Mark Rothstein James Duggan Director of Health Law Director University of Houston New Hampshire Appellate Defender Houston, TX Program Thomas Smith Concord, NH Assistant Director Judith Lichtenberg Criminal Justice Section Center for Philosophy and Public Policy American Bar Association University of Maryland Washington, DC College Park, MD Paul Stephen Peter Low Professor Hardy Cross Dillard Professor of Law and University of Virginia John V. Ray School of Law Research Professor Charlottesville, VA School of Law Laurence R. Tancredi University of Virginia Kraft Eidman Professor of Medicine and Charlottesville, VA the Law The Honorable Pauline Newman University of Texas United States Circuit Judge Houston, TX United States Court of Appeals for the Federal Circuit Washington, DC 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, Assistant Director, OTA Science, Information, 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 in- tions, these three areas of science and technol- stitutions lagged far behind business and Fed- ogy converge and complement each other. eral Government agencies in adopting new The first is information science, already pro- technology.’ Then, in 1967, the President’s vialing the criminal justice system with abroad Commission on Law Enforcement and Admin- istration of Justice made sweeping recommen- array of computer and telecommunications technologies. Surveillance technology can en- dations for modernizing the administration of 2 hance the investigation of crime. Computers criminal justice with new technologies. The will offer nearly unlimited possibilities for ag- technological innovations that followed in the gregating information and sharing it with next two decades have transformed nearly every 3 other criminal justice agencies. They can also component of the criminal justice system. be used to model or simulate the outcomes of This technological transformation is continu- alternative prevention and correction strategies. ing. Advanced technology, growing directly The second important field is molecular bi- out of recent developments in basic science, ology (sometimes called “New Biology”). Stud- is finding immediate application in the inves- ies of the chemical and genetic basis of human tigation of crime—for example, DNA typing. behavior or mental functioning promise new New technologies are also used in trials and techniques for identification, testing, and in judicial decisionmaking-for example, com- screening, using body fluids or tissues. They puter models based on social science research may also become the basis of behavior modifi- are used in assessing the likelihood of recidi- cation or control. vism. Finally, new technologies such as elec- tronic bracelets are being used in corrections. The third field is social science research, still Others, such as hormonal therapy for sex relatively underdeveloped by comparison with offenders, are being tested in experimental physical and biological sciences, but increas- programs. ingly being used to build statistical and be- havioral models and decision guidelines. Three categories of scientific knowledge ap- pear most promising for criminal justice, in Each has a dark side, an aspect of social cost terms of the technological capabilities that or social risk. Information technologies, for ex- they can provide. In criminal justice applica- ample, can lead to gross violations of individ- ual privacy. The use of molecular biology to IMuCh of the ma~ri~ in this report draws on SEARCH substitute “treatment for behavior disorders” Group, Inc., “New Technologies in Criminal Justice: An Ap- praisal, ” David J. Roberts and Judith A. Ryder, Principal for “punishment for criminal actions” is a pro- Authors, a contractor report prepared for the Office of Tech- found change in the paradigms of social con- nology Assessment, March 1987. trol. It brings into question the assumption %e President’s Commission on Law Enforcement and Administration of Justice, The Challenge of (lime in a Free of individual responsibility for behavior, which Society (Washington, DC: U.S. Government Printing Office, is one of the underlying principles of constitu- 1967), pp. 244-271. tional government. Social science models are Wo assist criminal justice professionals in selecting technol- ogies suited to their needs, the National Institute of Justice constructed from data on populations or large established the Technology Assessment Program (TAP). TAP groups of people. If used to predict individual is responsible for coordinating equipment testing, compiling behavior in making decisions about probation and disseminating test results, and operating a reference and referral center. An Advisory Council recommends directions for or sentencing, they could reinforce discrimina- future standards and tests. tory stereotypes
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