Paradigms of restraint

Duke Law Journal

Volumn 57, Issue 5, 2008, Pages 1321-1411

  Murphy, Erin ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 46049097377     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (445)

1. For an interesting history of the crime-tort distinction, see David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. REV. 59, 83-87 (1996).
2. Before a person may be jailed for a criminal offense, the U.S. Constitution provides generally for "due process of law," U.S. CONST. amend. V, including specific entitlements to "presentment or indictment," id., a "speedy and public trial," an "impartial jury," notice of the "nature and cause of the accusation," a right to confront witnesses, compulsory process, and the assistance of counsel, id. amend. VI. The state cannot punish individuals for acts previously held lawful, impose duplicative penalties, id. amend. V, or impose sanctions considered cruel and unusual, see id. amend. VIII; Bell v. Wolfish, 441 U.S. 520, 535 & 535 n.16 (1979). The Cruel and Unusual Punishments Clause applies, as its title suggests, only to "punishments." Id. at 535 n.16 (noting that the Eighth Amendment applies only after punishment is imposed, and thus concerns about the incarceration conditions of pretrial detainees are properly addressed as due process matters that ask whether the conditions have matured into "punishments" under a Mendoza-Martinez test). Moreover, criminal punishment can be meted out only after the government, bearing the burden of proof, overcomes the presumption of innocence and proves guilt beyond a reasonable doubt, the highest standard in the law. In re Winship, 397 U.S. 358, 364 (1970). Although it was not until the midcentury that many due process rights were formally incorporated against the states via the Due Process Clause, some scholars argue that incorporation had a less profound effect on states than commonly believed, because many states nonetheless provided for a range of procedural entitlements. See, e.g., Kenneth Katkin, "Incorporation" of the Criminal Procedure Amendments: The View from the States, 84 NEB. L. REV. 397, 411-12 (2005) (cataloguing incorporated rights, comparing them to contemporary state constitutional practice, and concluding that "points of disagreement [were] often narrow and technical").
3. Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 GEO. L.J. 775, 819 (1997).
4. See generally DAVID GARLAND, THE CULTURE OF CONTROL 128 (2001) ("The new criminologies tend to view crime prospectively and in aggregate terms, for the purpose of calculating risks and shaping preventative measures.");
5. JONATHAN SIMON, POOR DISCIPLINE 169 (1993) (discussing the "new control model around risk management" in parole supervision);
6. Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications, 30 CRIMINOLOGY 449, 452 (1992) (describing the shift from an "old penology" founded in findings of "responsibility, fault, moral sensibility, diagnosis, or intervention and treatment of the individual offender" to a "new penology" based in efforts to "identify, classify, and manage groupings sorted by dangerousness");
7. Stephen J. Schulhofer, Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws, 7 J. CONTEMP. LEGAL ISSUES 69, 81-82 (1996) (analyzing and advocating for a distinction between civil and criminal processes);
8. Christopher Slobogin, The Civilization of the Criminal Law, 58 VAND. L. REV. 121 (2005) [hereinafter Slobogin, Civilization] (arguing in favor of a shift from the corrective to the preventive model of criminal law);
9. Christopher Slobogin, Dangerousness and Expertise Redux, 56 EMORY L.J. 275 (2006) (discussing the merits of predictive calculations of danger).
10. See Addington v. Texas, 441 U.S. 418, 428 (1979) (upholding a civil commitment statute and noting that the reasonable doubt standard is not constitutionally required).
11. The Supreme Court initially rejected the constitutionality of detaining all deportable aliens. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001) ("A statute permitting indefinite detention of an alien would raise a serious constitutional problem."). The Court, however, then upheld detention of a limited class of aliens without requiring individualized determinations of dangerousness. See Demore v. Kim, 538 U.S. 510, 557-58 (2003) ("Detention is not limited to dangerous criminal aliens or those found likely to flee, but applies to all aliens claimed to be deportable for criminal convictions, even where the underlying offenses are minor.").
12. See, e.g., United States v. Salerno, 481 U.S. 739, 755 (1987) (upholding an act that allowed for the pretrial detention of "arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community").
13. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 368-69 (1997) ("When the State has 'disavowed any punitive intent'; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent.").
14. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (plurality opinion) (allowing detention of a citizen captured on foreign soil based on less than that which should be required for the pretrial detention of a criminal defendant).
15. See, e.g., Schulhofer, supra note 3, at 70-78 (describing different ways in which states have authorized the indefinite civil confinement of mentally ill and dangerous individuals upon fewer procedural protections than that required for criminal confinement); cf. Franklin E. Zimring, The Multiple Middlegrounds Between Civil and Criminal Law, 101 YALE L.J. 1901, 1903 (1992) ("Heightened protection in civil cases usually occurs in situations that involve the risk of secure confinement, such as juvenile court delinquency jurisdiction and involuntary civil commitment under the mental health powers, or the loss of personal associations, such as child custody.").
16. Schulhofer, supra note 3, at 80.
17. See, e.g., United States v. Moran, 349 F. Supp. 2d 425, 467-68 (N.D.N.Y. 2005) (upholding the warrantless use of GPS tracking devices).
18. See, e.g., State v. Piro, 112 P.3d 831, 834 (Idaho Ct. App. 2005) (upholding the DNA testing of a water bottle retained by officers after defendant was offered a drink while in custody).
19. See, e.g., Cara Buckley, New York Plans Surveillance Veil for Downtown, N.Y. TIMES, July 9, 2007, at A1 (describing a New York City plan to install cameras linked to license plate databases that could trigger barriers if cars banned from the area passed nearby).
20. See, e.g., Eyeticket Corp. v. Unisys Corp., 155 F. Supp. 2d 527, 532-34 (E.D. Va. 2001) (describing potential uses of iris scanning technology); People v. Johnson, 43 Cal. Rptr. 3d 587, 597-98 (Cal. Ct. App. 2006) (discussing potential uses of facial recognition software); David Lamb, One Last City is Scanning for Faces in the Crowd, L.A. TIMES, Sept. 29, 2003, at A10 (reporting that Virginia Beach continues to use facial-recognition systems to scan for terrorists, felons with outstanding warrants, and missing children).
21. Compare Schulhofer, supra note 3, at 96 (arguing that civil commitment should serve only as a "gap-filler, to solve problems that the criminal process cannot address"), with Slobogin, Civilization, supra note 3, at 165 (arguing for a "preventive regime" of criminal law that would collapse the "artificial distinctions between civil and criminal dispositions" in appropriate cases).
22. See generally Paul M. Schwartz, Internet Privacy and the State, 32 CONN. L. REV. 815 (2000) (arguing for more nuanced regulations of Internet privacy);
23. Paul M. Schwartz, Privacy and Democracy in Cyberspace, 52 VAND. L. REV. 1609 (1999) (detailing the extent to which personal information is collected online and proposing rules for fair practice);
24. Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083 (2002) (noting myriad ways in which the government can gather information without suspicion) [hereinafter Solove, Digital Dossiers];
25. Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy, 53 STAN. L. REV. 1393 (2001) (reconceptualizing the problem of Internet privacy in power and dignity terms rather than in embarrassment or self-censorship terms).
26. In particular, my concern is with the "reconfiguration of the practices that we most associate with disciplinary society - that is, panoptic surveillance aimed at intervening in the social world to provide an effective treatment for defective behaviour . . . to a type of surveillance which is essentially concerned with the 'management' of those already deemed criminal." Robin Williams & Paul Johnson, Circuits of Surveillance, 2 SURVEILLANCE & SOC'Y 1, 11 (2004).
27. Id. at 5.
28. Id.
29. Many technologies indiscriminately amass or collate information - it is estimated, for example, that over five hundred thousand cameras monitor the streets of London, and one study suggested that a single person is filmed roughly three hundred times a day. Steve Stecklow, Jason Singer & Aaron O. Patrick, Watch on the Thames: Surveillance Cameras Monitor Much of Daily Life in London, May Help Identify Bombers, WALL ST. J., July 8, 2005, at B1. Such "open system" forms of technological surveillance monitor generally or indiscriminately, without focusing on particular suspects. Williams & Johnson, supra note 17, at 5. The emphasis of this article, however, is on "closed systems" that target suspects individually or by identifiable class.
30. See generally Symposium, The Civil-Criminal Distinction, 7 J. CONTEMP. LEGAL ISSUES 1 (1996) (surveying the robustness of the civil-criminal distinction both as a descriptive and normative matter). A substantial literature also addresses punitive civil sanctions and explores the theoretical bases for distinguishing between civil and criminal penalties.
31. E.g., Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 YALE L.J. 1795, 1844-61 (1992).
32. ARTHUR C. CLARKE, PROFILES OF THE FUTURE 21 n.1 (1973) (emphasis added).
33. JOHN M. BUTLER, FORENSIC DNA TYPING 11-12 (2d ed. 2005) (charting timeline of forensic DNA development).
34. Id. at 440-41.
35. R.E. Gaensslen, Should Biological Evidence or DNA Be Retained By Forensic Science Laboratories After Profiling? No, Except Under Narrow Legislatively-Stipulated Conditions, 34 J.L. MED. & ETHICS 375, 376-77 (2006). Some states do require discarding of the genetic sample or removal of the digital profile if a conviction is expunged or overturned. Id. at 377.
36. Id.
37. See Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 CAL. L. REV. 721, 738 n.73 (2007).
38. BUTLER, supra note 23, at 438.
39. Id.
40. Id. (noting that some states limit collection to those convicted of specified sex offenses or violent crimes).
41. See 42 U.S.C. § 14132 (2000); CAL. PENAL CODE § 296 (West 2008); KAN. STAT. ANN. § 21-2511(e) (2006); LA. REV. STAT. ANN. § 15:609(A)(1) (2007); MINN. STAT. ANN. § 299C.105 (West 2007); N.M. STAT. § 29-3-10(A) (2007); TEX. GOV'T CODE ANN. § 411.1471 (Vernon 2007); VA. CODE ANN. § 19.2-310.2:1 (2007).
42. See, e.g., H.B. 4092, 94th Leg., 1st Reg. Sess. (Mich. 2007); A.B. 4108, 212th Leg., 2d Reg. Sess. (N.J. 2006); H.B. 779, 94th Gen. Assem., Reg. Sess. (Ill. 2005); S.B. 746, Gen. Assem., 2005 Sess. 2005 (N.C. 2005).
43. See 42 U.S.C.A. § 14135a(a)(1)(A) (West 2008); Julia Preston, U.S. Set to Begin a Vast Expansion of DNA Sampling, N.Y. TIMES, Feb. 5, 2007, at A1.
44. DNA Fingerprint Act of 2005, Pub. L. No. 109-162, tit. X, § 1002(1), 119 Stat. 2960 (codified at 42 U.S.C.A. § 14132(a)(1)(C) (West 2008)).
45. Rick Weiss, Vast DNA Bank Pits Policing Vs. Privacy: Data Stored on 3 Million Americans, WASH. POST, June 3, 2006, at A1.
46. Frederick H. Bieber, Charles H. Brenner & David Lazer, Finding Criminals Through DNA of Their Relatives, 312 SCIENCE 1315-16 (2006);
47. Henry T. Greely et al., Family Ties: The Use of DNA Offender Databases to Catch Offender's Kin, 34 J.L. MED. & ETHICS 248, 250 (2006).
48. Pilar N. Ossorio, About Face: Forensic Genetic Testing for Race and Visible Traits, 34 J.L. MED. & ETHICS 277, 278, 283 (2006).
49. See, e.g., People v. Rush, 672 N.Y.S.2d 362, 364 (App. Div. 2000); Roberson v. Texas, 16 S.W.3d 156, 172 (Tex. Ct. App. 2000).
50. See Ron Scherer, Should DNA Be Collected from All Criminals?, CHRISTIAN SCI. MONITOR, May 19, 2006, at 1, available at http://www.csmonitor.com/2006/0519/p01s02-usju.html# (outlining the breadth of collection in different states). But see State v. Watkins, Nos. 6805-12-04 et al., slip op. at 16-17 (Vt. Dist. Ct. Apr. 24, 2006) (holding that the state statute that allows DNA collection from nonviolent convicted felons violates the state constitution).
51. See Nicholas v. Goord, 430 F.3d 652, 658-59 (2d Cir. 2005) (summarizing such cases).
52. Id.
53. In the few instances where courts have considered these statutes, they have split on whether to uphold them. See, e.g., In re Welfare of C.T.L., 722 N.W.2d 484, 491-92 (Minn. Ct. App. 2006) (holding that DNA collection from arrestees violates the Minnesota and U.S. constitutions); Anderson v. Commonwealth, 650 S.E.2d 702, 705 (Va. 2007) (likening DNA collection to fingerprinting and upholding a statute requiring DNA collection from persons arrested for certain offenses); see also, e.g., State v. McKinney, 730 N.W.2d 74, 87 (Neb. 2007) (allowing collection of a DNA sample upon a showing of probable cause that the individual committed the crime for which the DNA was sought, but rejecting the use of DNA when the DNA is not related to the probable cause).
54. United States v. Kincade, 379 F.3d 813, 872 (9th Cir. 2004) (en banc) (Kozinski, J., dissenting).
55. See, e.g., Murphy, supra note 27, at 736.
56. Several news accounts describe a variety of methods of obtaining DNA, including taking samples of saliva after the suspect spit on the ground and sampling utensils and a glass after the suspect ate out with his wife. Richard Willing, Police Dupe Suspects into Giving up DNA, USA TODAY, Sept. 11, 2003, at A3;
57. Carolyn Thompson, Police DNA Collection Sparks Questions, BOSTON.COM, Mar. 17, 2007, http://www.boston.com/news/science/articles/ 2007/03/17/police_get_creative_in_collecting_dna. At least one court has upheld such collection techniques in a case in which police officers posed as attorneys seeking information and took a sample of the saliva used by the suspect to close an envelope. State v. Athan, 158 P.3d 27, 31 (Wash. 2007).
58. Cecil E. Greek, Tracking Probationers in Space and Time: The Convergence of GIS and GPS Systems, 66 FED. PROBATION 51, 51 (2002).
59. See, e.g., Chism v. State, 824 N.E.2d 334, 335 (Ind. 2005); Megan A. Janicki, Better Seen than Heard: Residency Restrictions and Global Positioning Tracking Laws for Sex Offenders, 16 B.U. PUB. INT. L.J. 285, 295-96 (2007).
60. These states include Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Michigan, Missouri, Oklahoma, South Carolina, Virginia, Washington, and Wisconsin. See ALA. CODE § 15-20-26.1 (LexisNexis 2007); ARIZ. REV. STAT. ANN. § 13-902(G) (2007); ARK. CODE ANN. § 12-12-923 (2007); COLO. REV. STAT. § 18-1.3-1005 et seq. (2007); FL. STAT. ANN. § 947.1405 (West 2008); GA. CODE ANN. § 42-1-14 (2007); 730 ILL. COMP. STAT. 5/5-8A-6 (2007); IND. CODE ANN. § 35-38-2.5-3 (LexisNexis 2007); IOWA CODE ANN. § 692A.4A (West 2007); KAN. STAT. ANN. § 74-9101(15) (2006); MICH. COMP. LAWS ANN. § 791.285 (West 2007); MO. REV. STAT. § 217.735 (West 2007); OKLA. STAT. tit. 57, § 510.10 (2008); S.C. CODE ANN. § 23-3-540 (2007); VA. CODE ANN. § 37.2-908(E) (2007); WASH. REV. CODE ANN. § 9.95.435 (West 2007); WIS. STAT. ANN. § 301.135 (West 2007).
61. For instance, California, Idaho, Minnesota, Montana, and North Dakota all apparently engage in some form of electronic monitoring, and Connecticut, Louisiana, Massachusetts, New Jersey, and Tennessee each have initiated pilot programs. New Hampshire, North Carolina, Rhode Island, and South Dakota are all considering legislation.
62. Bret R. Hobson, Banishing Acts: How Far May States Go to Keep Convicted Offenders Away from Children?, 40 GA. L. REV. 961, 964 & nn.21-22 (2006).
63. See, e.g., GA. CODE ANN. § 42-1-14 (2007); MICH. COMP. LAWS ANN. § 791.285 (West 2007); MO. ANN. STAT. § 217.735 (West 2007).
64. Press Release, Cal. Dep't of Corr. & Rehab., California Department of Corrections and Rehabilitation Announces GPS Partnership with the City of San Bernardino to Monitor High-Risk Gang Activity (Mar. 15, 2006), available at http://www.cdcr.ca.gov/News/2006_Press_Releases/press20060314.html.
65. Associated Press, Paroled Burglars To Be Fitted with GPS Tracking Devices, BOSTON.COM, Aug. 12, 2007, http://www.boston.com/news/ local/connecticut/articles/2007/08/12/ paroled_burglars_to_be_fitted_with_gps_tracking_devices/.
66. Blade Columbus Bureau, Plan Gains to Publicly Identify Accused: Ohio Panel Backs Registry Proposal, TOLEDO BLADE, Aug. 29, 2006, http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060829/NEWS24/ 608290360/-1/NEWS.
67. Alcohol Monitoring Systems, The SCRAM Bracelet, http://alcoholmonitoring. com/index/scram/what-is-scram/scram-bracelet (last visited Apri. 6, 2008).
68. Id. According to one report, the device is so sensitive that offenders are instructed not to wear cologne, rinse with mouthwash, or use any other products containing alcohol. Keeping Watch: New Device Helping Court Monitor Those on Probation, TIMES REP. (Dover-New Philadelphia, Ohio), Sept. 6, 2005, http://alcoholmonitoring.com/ams_files/ pdf_articles/2005/090605_timesreporter.pdf.
69. See, e.g., Tony Bizjak, Bracelet Monitors Human Drunkenness, SACRAMENTO BEE, Sept. 23, 2006, at 2 (reporting on the use of the device and on a California Assembly bill that urges the county to consider using bracelets);
70. Associated Press, N.C. Courts Test Alcohol-Detecting Bracelet, WINSTON-SALEM J., July 22, 2005, http://alcoholmonitoring.com/ ams_files/pdf_articles/2005/072205_winstonsalemjournal.pdf.
71. Alcohol Monitoring Systems, About Alcohol Monitoring Systems, http://www.alcoholmonitoring.com/about/index.html (last visited Apr. 6, 2008). There are also mobile drug-detection scanners that purport to reveal traces of illegal substances. See, e.g., Smiths Detection, http://www. smithsdetection.com/eng/narcotics_detection.php (last visited Apr, 6, 2008) (listing devices). Such devices have become increasingly popular as a means of screening visitors to prison facilities. See, e.g., Press Release, Commonwealth of Pa. Dep't of Corr., National Study Reveals Ridge Administration Crackdown Has Made Pennsylvania Prisons Nearly 99 Percent Drug Free (Jan. 22, 1999), available at http://www.correctionsdrugtesting.com/pennstudy.htm (detailing efficacy of three ion scanners, among other tools, in lowering rates of drug use in Pennsylvania correctional facilities); Associated Press, Devices Linked to Decreased Drug Use in Tucson Area Prisons, ARIZ. DAILY, Mar. 6, 2001, http://wc.arizona.edu/papers/94/ 113/01_92_m.html.
72. See Joshua Zumbrun, Celebs Put Their Best Foot Forward, WASH. POST, July 18, 2007, at C1.
73. See discussion infra Part II; see also Seling v. Young, 531 U.S. 250, 267 (2001) (finding a sexual predator commitment statute "civil" and thus upholding it against ex post facto and double jeopardy challenges); Kansas v. Hendricks, 521 U.S. 346, 350 (1997) (upholding commitment of a sexual predator against due process challenge). But see Kansas v. Crane, 534 U.S. 407, 409 (2002) (finding a constitutional requirement that there be some inability to control behavior before civil commitment of sexual predator).
74. See discussion infra Part II; Smith v. Doe, 538 U.S. 84, 105-06 (2003); Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003).
75. SIMON, supra note 3, at 170-71.
76. Of course, wide latitude has long been granted such monitoring with regard to conditional releases like probationers and parolees. See Samson v. California, 126 S. Ct. 2193, 2196 (2006) (upholding the random, suspicionless search of a parolee).
77. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 825 (2002) (upholding the random, suspicionless drug testing of students involved in extracurricular activities); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 665-66 (1995) (upholding the random, suspicionless testing of school athletes); New Jersey v. T.L.O., 469 U.S. 325, 328-29 (1985) (upholding the warrantless search of student purses).
78. See, e.g., Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 677 (1989) (upholding drug testing of customs employees); Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 634-35 (1989) (upholding drug testing of railway employees involved in accidents).
79. Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, 42 U.S.C. § 14071 (2000) (reducing federal grants to states that fail to enact registration statutes).
80. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (to be codified in scattered sections of 18 and 42 U.S.C.) (creating a national database and also granting money for GPS tracking programs).
81. See FBI, U.S. Dep't of Justice, National/State Sex Offender Registry, http://www.fbi.gov/hq/cid/cac/registry.htm (last visited Apr. 6, 2008) (including links to all states' sites, as well as the national registry); Klaaskids - Megan's Law Legislation in All 50 States, http://www.klaaskids.org/ pg-legmeg.htm (last visited Apr. 6, 2008); see also DEVON B. ADAMS, U.S. DEP'T OF JUSTICE, SUMMARY OF STATE SEX OFFENDER REGISTRIES, 2001, at 1, 3 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/sssor01.pdf (detailing the development of and information available on state sex offender registries). Since issuance of this 2001 report, the twenty-one states that did not have public online registries have launched such sites.
82. See, e.g., Delaware Sex Offender Central Registry, http://sexoffender.dsp.delaware.gov (last visited Apr. 6, 2008); Oregon Sex Offender Inquiry System, http://sexoffenders.oregon.gov (last visited Apr. 6, 2008).
83. See, e.g., National Sex Offender Registry, http://www. familywatchdog.us (last visited Apr. 6, 2008). On many websites, the user can input an address and then see a map with small flags designating the location of nearby offenders. Clicking on the flags then reveals the offender's photo, name, and address, as well as a hyperlink to the sex offender registry site for the state.
84. E.g., CAL. CIVIL CODE § 2079.10a (West 2008). One major real estate search engine added sex offender registries to its online search terms. Press Release, PropertyMaps.com, PropertyMaps.com Adds Sex Offender Registries to Real Estate Search (July 26, 2007), available at http://www.propertymaps.com/corporate/press/media/2007_07_26_a.pdf.
85. Of course, DNA databases are in fact a form of electronic indexes of "dangerous" persons.
86. See, e.g., Smith v. Doe, 538 U.S. 84, 89-91, 101-02 (2003).
87. See id. at 90.
88. Blade Columbus Bureau, supra note 54.
89. Smith, 538 U.S. at 89.
90. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003).
91. See discussion infra Part II.
92. See, e.g., Doe v. Poritz, 662 A.2d 367, 422-23 (N.J. 1995) (rejecting numerous constitutional challenges to New Jersey's sex offender registry).
93. See, e.g., Doe v. Phillips, 194 S.W.3d 833, 852 (Mo. 2006) (en banc) (finding the application of a registration provision to sex offender defendants invalid under the Missouri constitution's prohibition on retrospective laws).
94. N.Y. CITY, N.Y., ADMIN. CODE tit. 10, ch. 6, §§ 10-601 to -608 (2006).
95. Id. § 10-604.
96. Id. § 10-603.
97. Andrew Glazer, Despite Risk, L.A. Names Its Most Violent Gangs: Authorities Change Tactics After Surge in Bloodshed Among City's 400 Gangs, MSNBC.COM, Feb. 8, 2007, http://www.msnbc.msn.com/id/17054161/ (reporting on the Los Angeles Police Department's compilation of a list of notorious gangs and the ten most wanted gang members).
98. E.g., Methamphetamine Manufacturer Registry Act, 730 ILL. COMP. STAT. 180/1-99 (2006).
99. Donna Leinwand, States List Meth Offenders on Web, USA TODAY, Aug. 23, 2006, at 1A.
100. For example, BackgroundChecks.com offers a series of background check packages, ranging from $19.95 for either a nationwide search of sex offender registries or a single state criminal history search to $44.95 for the "Comprehensive Background Report," which includes a national search for the addresses, neighbors, family members, single-state criminal history, and real property of any person of interest. BackgroundChecks.com, https://www.backgroundchecks.com (last visited Apr. 6, 2008).
101. For example, one may visit the website of Washington Access to Criminal History (WATCH) and, upon paying ten dollars, search for Washington State records of arrests less than one year old with dispositions pending, dependency proceedings, conviction history, and information regarding registered sex and kidnap offenders. Washington Access to Criminal History, https://watch.wsp.wa. gov/ (last visited Apr. 6, 2008). Florida and Indiana are among other states with such systems.
102. Id.
103. See, e.g., Daniel J. Solove, Access and Aggregation: Public Records, Privacy, and the Constitution, 86 MINN. L. REV. 1137, 1153 (2002).
104. See, e.g., Jessica Brown, Live TV Comes to Mason Court, CINCINNATI ENQUIRER, Feb. 22, 2007, at 1C.
105. Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004). For a critical discussion of the implications of jail cameras, see generally Mona Lynch, Punishing Images: Jail Cam and the Changing Penal Enterprise, 6 PUNISHMENT & SOC'Y 255 (2004).
106. Maricopa Country Sheriff's Office, http://www.mcso.org/ (last visited Apr. 6, 2008).
107. Stephen W. Dummer, False Positives and Secure Flight Using Dataveillance When Viewed Through the Ever Increasing Likelihood of Identity Theft, 11 J. TECH. L. & POL'Y 259, 263-66 (2006) (surveying the history of federal data mining programs in the airline industry).
108. See, e.g., Laura K. Donohue, Anglo-American Privacy and Surveillance, 96 J. CRIM. L. & CRIMINOLOGY 1059, 1136-37 (2006) (discussing the federal government's creation of lists forbidding or limiting airline travel by certain individuals but without developing any procedural safeguards to ensure the accuracy of the lists).
109. Id. at 265-66.
110. Bob Barr, Post-9/11 Electronic Surveillance Severely Undermining Freedom, 41 VAL. U. L. REV. 1383, 1406 (2007);
111. Justin Florence, Note, Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists, 115 YALE L.J. 2148, 2150 (2006).
112. Although DNA and fingerprint typing and indexing also constitute "biometric technologies," I separate them into another category largely to distinguish the use of technology to identify an unknown sample from the use of technology to identify an unknown person. Thus, for instance, a fingerprint database might allow the government either to identify the probable source of fingerprints found at a crime scene or to identify an individual purporting to be another person. The first use is addressed infra Part I.A, whereas this Section deals with the latter kind of usage. Of course, the same basic technology - fingerprint identification, in this case - is used in both instances.
113. Ellen Nakashima, FBI Prepares Vast Database of Biometrics, WASH. POST, Dec. 22, 2007, at A1 (reporting a German study on facial recognition technique that had a 60 percent success rate during daylight, but only a 10 percent to 20 percent rate at night).
114. Barnaby J. Feder, Technology Strains to Find Menace in the Crowd, N.Y. TIMES, May 31, 2004, at C1. Dutch researchers recently tested the efficacy of biometric fingerprint scanners by conducting 6400 checks of fans at European football games in an effort to identify "blacklisted" volunteer fans. The system failed to identify 15 to 20 percent of those listed when kept to a 0.1 percent false positive rate.
115. Jurgen den Hartog & Ruud van Munster, How To Dodge the Red Card, INFO SECURITY, Nov./Dec. 2007, http://www. infosecuritymagazine.com/features/novdec07/football.html ("Ideally, false accusation should be less than 0.01%, but not more than 0.1%. The chance of missing a hooligans [sic] on the other hand, should be 1% or less.").
116. Nakashima, supra note 99.
117. Associated Press, LAPD Experimenting with Facial-Recognition Software, SIGNONSANDIEGO.COM, Dec. 26, 2004, http://www.signonsandiego.com/uniontrib/20041226/news_1n26lapd.html.
118. Id.
119. See Lamb, supra note 14 (reporting that a Boston airport program recognized the faces of 153 volunteer "terrorists," but failed to identify 96 others, and that Tampa stopped its program after repeated failures, although Virginia Beach continued to use the system). German researchers examining the efficacy rates of facial recognition in a crowd achieved, in a fourmonth study of a Mainz train station that saw 23,000 daily passengers and tolerated a 0.1 percent false positive rate, roughly a 60 percent success rate during the day, which fell to 10 to 20 percent at night. Nakashima, supra note 99.
120. Facial ID Technology Makes Gains in Florida, ORGANIZED CRIME DIG., May 4, 2005, http://findarticles.com/p/articles/ mi_qa4441/is_200505/ai_n16058151 (reporting that use of technology has led to forty-five arrests since implementation nine months earlier).
121. Lamb, supra note 14; see also Chambers v. Commonwealth, No. 2005-CA-000815-MR, 2006 WL 1451566, at *1 (Ky. Ct. App. May 26, 2006) (noting that the defendant, who gave a false name on arrest, was identified through an iris scan at the jail).
122. Buckley, supra note 13.
123. Id.
124. Id. One New England state in the 1990s reportedly checked cars at the turnpike tollbooth for warrants. SIMON, supra note 3, at 199.
125. Adam Liptak, Driver's License Emerges as Crime-Fighting Tool, but Privacy Advocates Worry, N.Y. TIMES, Feb. 17, 2007, at A10. States have sought to introduce facial recognition software at state motor vehicle offices to combat identity theft and the fraudulent acquisition of state identification cards.
126. See, e.g., Mark Brunswick, State Seeks to Get in the Face of ID Theft, STAR TRIB. (Minneapolis, Minn.), Jan. 6, 2006, at 1B.
127. Lynn Waddell & Arian Campo-Flores, Iris Scans: Keeping an Eye on Sex Offenders, NEWSWEEK, July 24, 2006, at 8.
128. Id.
129. See Embassy Visa & Passport Services, http://www.passportsrus. com/services.php (last visited Apr. 6, 2008) (stating that the "proposed U.S. Electronic Passport" contains an embedded computer chip that will "securely store" a "digital photograph" to "enable biometric comparison, through the use of facial recognition technology").
130. Lynda Hurst, Bio-Security Still a Fantasy, TORONTO STAR, Jan. 24, 2004, at A1.
131. See Nakashima, supra note 99 (reporting that researchers are working on "capturing images of people's irises at distances of up to 15 feet, and of faces from as far away as 200 yards," which may be "several years away").
132. United States v. Dionisio, 410 U.S. 1, 14 (1972); see also United States v. Karo, 468 U.S. 705, 730-31 (1984) (finding no expectation of privacy in what is exposed to the public).
133. Whalen v. Roe, 429 U.S. 589 (1977).
134. Id. at 605-06. The reasoning of lower court opinions upholding DNA databases similarly underscores the likelihood of a biometric analogue being judged constitutional.
135. Kyllo v. United States, 533 U.S. 27, 40 (2001) (requiring a warrant for the use of a thermal imager to determine heat radiating from inside of a home). But cf. Minnesota v. Carter, 525 U.S. 83, 85 (1998) (upholding the warrantless peeking through a slit in the closed blinds of a ground-level apartment).
136. See, e.g., Chiraag Bains, Next-Generation Sex Offender Statutes: Constitutional Challenges to Residency, Work, and Loitering Restrictions, 42 HARV. C.R.-C.L. L. REV. 483, 483 n.5 (2007) (cataloguing sex offender statutes).
137. Jeannie Suk, Criminal Law Comes Home, 116 YALE L.J. 2, 48 & n.197 (2006) (describing a request for a stay-away order as standard protocol in domestic violence cases).
138. Id. at 22 n.66 (enumerating drug-related barring orders); Gregory A. Beck, Note, Ban Lists: Can Public Housing Authorities Have Unwanted Visitors Arrested?, 2004 U. ILL. L. REV. 1223, 1234-39 (2004) (describing the operation of "no-trespass lists" or "ban lists").
139. Stephanie Smith, Comment, Civil Banishment of Gang Members: Circumventing Due Process Requirements?, 67 U. CHI. L. REV. 1461, 1464-68 (2000) (surveying civil responses to gang violence).
140. Corey Rayburn Yung, Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders, 85 WASH. U. L. REV. 101, 103-05 (2007). Californians approved a ballot initiative for Proposition 83 that imposed strict residency requirements for certain categories of convicted offenders, although a district judge then blocked its retroactive enforcement.
141. Jennifer Warren, Judge Blocks Part of Sex Offender Law, L.A. TIMES, Nov. 8, 2006, at A32. Then-Attorney General Bill Lockyer later announced that his office would interpret the law to be nonretroactive.
142. Bob Egelko, New Stance on Sex-Offender Law, S.F. CHRON., Nov. 28, 2006, at A1.
143. STEVE HERBERT & KATHERINE BECKETT, Zoning Out Disorder: Assessing Contemporary Practices of Urban Social Control, in STUDIES IN LAW, POLITICS AND SOCIETY 8-11 (forthcoming 2008) (cataloguing techniques of urban control).
144. See Wendy Koch, More Sex Offenders Tracked by Satellite, USA TODAY, June 7, 2006, at 3A (describing how "[i]f the offender enters a restricted area, such as a playground, the receiver immediately alerts a data center, which notifies officials via cellphone, e-mail, or fax").
145. See supra note 120 and accompanying text.
146. See, e.g., Doe v. Miller, 405 F.3d 700, 705, 709-16 (8th Cir. 2005) (upholding residency restriction); People v. Leroy, 828 N.E.2d 769, 775 (Ill. App. Ct. 2005) (same); ACLU v. City of Albuquerque, 137 P.3d 1215, 1228 (N.M. Ct. App. 2006) (upholding residency restriction as modified by district court to apply only to newly acquired residences, and not to homes previously owned or second mortgages).
147. Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J., dissenting) (emphasis added).
148. See supra Part I.
149. See supra Part I.D.
150. Even the government's recent attempts to push the limit of this principle were met with resistance. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
151. U.S. CONST. amends. V, VI, VIII.
152. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 371 (1997).
153. See, e.g., United States v. Ursery, 518 U.S. 267, 273 (1996).
154. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979).
155. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).
156. Smith v. Doe, 538 U.S. 84, 97 (2003). This approach has also been used to determine cases under the Bill of Attainder Clause. See, e.g., De Veau v. Braistead, 363 U.S. 144, 160 (1960).
157. United States v. Salerno, 481 U.S. 739, 746-47 (1987) (finding that pretrial detention was "regulatory" and not "punitive," and therefore did not violate substantive due process); Bell, 441 U.S. at 534 (rejecting prison conditions case raised by pretrial inmates on substantive due process grounds because alleged discomfort was not punishment and did not otherwise "rise to the level of [a] fundamental liberty interest[]").
158. Mendoza-Martinez, 372 U.S. at 165-66 (holding that due process prohibited imposition of the "punishment" of deprivation of nationality in the absence of full criminal process).
159. Allen v. Illinois, 478 U.S. 364, 375 (1986) (finding that the Illinois Sexually Dangerous Persons Act requirement that defendants answer questions about their acts did not violate the Fifth Amendment self-incrimination clause because the proceeding was civil and not criminal in nature); United States v. Ward, 448 U.S. 242, 249-55 (1980).
160. Kansas v. Hendricks, 521 U.S. 346, 362, 371 (1997).
161. Id.; United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365-66 (1984).
162. See supra note 136 and accompanying text.
163. Although hardly empirical proof, it is nonetheless revealing that a search in the "JLR" database of Westlaw for "Kennedy v. Mendoza-Martinez" yields only 819 hits, whereas "Katz v. United States" yields 3510, "Mathews v. Eldridge" turns up 2994, and "Terry v. Ohio" returns 3,276.
164. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 147 (1963).
165. Id. at 165-66.
166. Smith v. Doe, 538 U.S. 84, 96 (2003) ("The Act itself does not require the procedures adopted to contain any safeguards associated with the criminal process. That leads us to infer that the legislature envisioned the Act's implementation to be civil and administrative."). Even the inclusion of such safeguards, however, does not necessarily render it punitive. Allen v. Illinois, 478 U.S. 364, 371-72 (1986).
167. Smith, 538 U.S. at 92.
168. Mendoza-Martinez, 372 U.S. at 168-69 (footnotes omitted).
169. Smith v. Doe, 538 U.S. 84 (2003).
170. Id. at 99-100 (emphasis added); see also Hudson v. United States, 522 U.S. 93, 104 (1997) (finding that bar from working in banking industry is "certainly nothing approaching the 'infamous punishment' of imprisonment").
171. Smith, 538 U.S. at 101.
172. Id.
173. Id.
174. Johnson v. Quander, 440 F.3d 489 (D.C. Cir. 2006).
175. Id. at 502 (quoting Smith, 538 U.S. at 100).
176. Smith, 538 U.S. at 97.
177. Id.
178. Id. at 98.
179. Id. at 99.
180. Id.
181. See, e.g., Commonwealth v. Lee, 935 A.2d 865, 880 (Pa. 2007) ("The number of arguments raised by Appellees tends to obscure that Appellees succeed only if we accept the premise, which we have all but categorically rejected in our prior cases, that the registration, notification, and counseling provisions of Megan's Law II are punitive in the constitutional sense, thus requiring observance of all the due process protections that attend criminal prosecution, especially those identified by the United States Supreme Court's decision in Apprendi.").
182. See infra Part II.B.
183. See supra Part II.A.
184. Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989); see also Doe v. Miller, 405 F.3d 700, 709 (8th Cir. 2005).
185. See Thompson, 490 U.S. at 460. See generally Jane Rutherford, The Myth of Due Process, 72 B.U. L. REV. 1, 44-45 & nn.242-44 (describing the Court's approach to liberty and summarizing popular critiques).
186. Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (plurality opinion) (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). In Foucha the Court held that "[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Foucha, 504 U.S. at 80. The Supreme Court in McKune v. Lile, 536 U.S. 24 (2002), addressed a prison rehabilitation program that required inmates to confess to prior crimes without a promise of immunity, or else have their housing transferred to a far more restrictive block. Id. at 30-31. Noting that a refusal to participate "did not extend [the defendant's] term of incarceration," or "affect his eligibility for good-time credits or parole," the Court found no due process liberty interest - or even a lesser interest relevant for a Fifth Amendment compulsion analysis - in remaining in medium, rather than maximum, security. Id. at 38-39. This simply underscores the degree to which the Court views the deprivation determination as zero-sum; the relevant inquiry is whether the state has taken physical liberty or not, not to what degree such deprivation is effectuated.
187. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981). The Court has held that such loss of liberty includes the possible loss of liberty should a suspended sentence be executed. Alabama v. Shelton, 535 U.S. 654, 675 (2002).
188. Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Indeed, the Court has held: [liberty is] not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. Conn v. Gabbert, 526 U.S. 286, 291 (1999) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972)); see also Washington v. Glucksberg, 521 U.S. 702, 719 (1997) ("The Due Process Clause guarantees more than fair process, and the 'liberty' it protects includes more than the absence of physical restraint.").
189. Bolling, 347 U.S. at 499.
190. In Paul v. Davis, 424 U.S. 693 (1976), the Court observed that "[w]hile there is no 'right to privacy' found in any specific guarantee of the Constitution, the Court has recognized that 'zones of privacy' may be created by more specific constitutional guarantees and thereby impose limits upon government power," id. at 712-13. It also noted, however, that "'right of privacy' cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment." Id. at 713; see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) ("[M]atters[] involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment."). The Court rejected the defendant's claim, which was based on the sheriff's public posting of the defendant's name and picture on an "Active Shoplifters" flyer, noting that "[t]he activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection-matters relating to marriage, procreation, contraception, family relationships, and child rearing and education." Paul, 424 U.S. at 713.
191. For instance, the Court has held that a state may clearly enact a general scheme of legislation that inhibits individuals' economic liberties by foreclosing their ability to pursue a lawful occupation. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106-08 (1978) (upholding a California statute regulating the grant of franchises in the auto industry and comparing cases); Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955) (upholding an Oklahoma law prohibiting the fitting or duplication of eyeglasses without a written prescription from an ophthalmologist). Rejecting the notion that a search of an attorney's office infringed upon the right to freely exercise of a profession, the Court stated that although there might exist a liberty interest in "choos[ing] one's field of private employment," such a right "is nevertheless subject to reasonable government regulation." Conn, 526 U.S. at 292.
192. Courts have rejected a constitutional right to housing in a variety of contexts. See, e.g., Lindsey v. Normet, 405 U.S. 56, 73-74 (1972) (rejecting the claim that the "'need for decent shelter' and the 'right to retain peaceful possession of one's home' are fundamental interests" because there is no "constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy" property outside of a contractual situation); Royer ex rel. Estate of Royer v. City of Oak Grove, 374 F.3d 685, 689 (8th Cir. 2004) (finding "no property interest in having unlimited access to a public building").
193. Kelley v. Johnson, 425 U.S. 238, 244 (1976) (assuming liberty interest in "matters of personal appearance" but finding no infringement in law that dictated permissible hair lengths for local police officers). But see Washington v. Harper, 494 U.S. 210, 221-22 (1990) (finding a "significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment," but finding it commensurate with the right as established in positive state law).
194. But see Youngberg v. Romeo, 457 U.S. 307, 309 (1982). Youngberg addressed a due process claim by an institutionalized, mentally retarded person that his conditions of confinement were both unsafe and unnecessarily restrictive. Finding liberty interests in both concerns, the Court found a duty to provide the claimant with "reasonably nonrestrictive confinement conditions," among other things. Id. at 324.
195. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003).
196. Id. at 4-6.
197. Id. at 4-5.
198. Id.
199. Id. at 7.
200. Id. at 5.
201. Id. at 6-7.
202. Of course, it still might have found that no process was necessary to prevent its erroneous deprivation. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (outlining a three-part inquiry triggered by a liberty interest that weighs the private interest affected, the risk of erroneous deprivation using the procedures in place, and the value of any additional procedures).
203. Conn. Dep't of Pub. Safety, 538 U.S. at 7-8.
204. Id. at 6. Regardless, the Court held that, to the extent that a cognizable interest existed, the offenders' requests for individualized determinations of dangerousness were not warranted because the statutory regime drew no distinctions nor worked any deprivations on that basis. Id. at 7-8. Justices Souter and Ginsburg wrote separately to note that the Court's holding did not foreclose a substantive due process claim, and also to underscore that the statute's provisions allowing exemptions for certain sex offenders might raise equal protection problems. Id. at 9 (Souter, J., concurring).
205. Smith v. Doe, 538 U.S. 84, 112 (Stevens, J., joined by Ginsburg, J., dissenting).
206. Rise v. Oregon, 59 F.3d 1556, 1562-63 (9th Cir. 1995); see also Doe v. Moore, 410 F.3d 1337, 1350 (11th Cir. 2005) (rejecting a procedural due process challenge to a DNA-collection statute due to the lack of a cognizable liberty interest); Johnson v. Quander, 370 F. Supp. 2d 79, 92-93 (D.D.C. 2005) (noting the decreased expectation of privacy for convicts on probation, the compelling state interest of identification, and the limited uses for the DNA samples). A Kansas federal district court reached the same conclusion, adding that "even if [the] challenge is to the enactment of the law, rather than the method of the blood draw, his argument fails. When legislation affects a general class, the legislative process satisfies due process requirements." Miller v. U.S. Parole Comm'n, 259 F. Supp. 2d 1166, 1169-70 (D. Kan. 2003).
207. Smith, 538 U.S. at 100.
208. United States v. Karo, 468 U.S. 705, 712 (1984) (finding, inter alia, that the surreptitious installation of an electronic tracking device in a drum sold to the defendant did not interfere with any cognizable "possessory interest"); United States v. Knotts, 460 U.S. 276, 284-85 (1983).
209. Karo, 468 U.S. at 718 (requiring a warrant only for police monitoring of a beeper inside a home); see also Kyllo v. United States, 533 U.S. 27, 40 (2001) (finding the warrantless use of a thermal imager to detect heat emanating from inside a home to be an unlawful search).
210. Smith, 538 U.S. at 101; see also id. at 100 (stating that "[t]he Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences," and noting only that while they "must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so").
211. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) ("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and openended.").
212. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979) (noting that concerns about the incarceration conditions of pretrial detainees are properly addressed as due process matters).
213. United States v. Salerno, 481 U.S. 739 (1987).
214. Id. Moreover, the Court observed, the category of those even deemed eligible for detention was limited to individuals charged with serious offenses, and detention was permitted only for the limited, pretrial period. Id.
215. Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (rejecting substantive due process, ex post facto, and double jeopardy challenges); see also Seling v. Young, 531 U.S. 250, 254 (2001) (noting a "panoply of protections," including the proof beyond a reasonable doubt standard).
216. Kansas v. Crane, 534 U.S. 407, 412 (2002) (invalidating a provision, apparently on substantive due process grounds).
217. Doe v. Phillips, 194 S.W.3d 833, 842-43 (Mo. 2006) (en banc).
218. ACLU v. City of Albuquerque, 137 P.3d 1215, 1226 (N.M. Ct. App. 2006) (invalidating a registration provision for offenders convicted of crimes lacking a specific sexual component); State v. Small, 833 N.E.2d 774, 782-83 (Ohio Ct. App. 2005) (invalidating a registration provision as violating substantive due process when it did not specify that conviction be based on sexual acts).
219. One aspect of the Mendoza-Martinez test - whether the restraint is "excessive" in relation to its purpose - can singularly transform a measure from regulatory to punitive. Probably because of this potency, however, it is rarely invoked. But see Smith v. Doe, 538 U.S. 84, 116-17 (2003) (Ginsburg, J., dissenting) (finding Alaskan registration act "excessive[] in relation to its nonpunitive purpose" because it "applies to all convicted sex offenders, without regard to their future dangerousness" and carries "exorbitant" duration and reporting requirements without any reference to the possibility of rehabilitation).
220. Id. at 104 (majority opinion).
221. The Court has held, however, that if a specific constitutional provision governs the government action in question, then that provision should guide the relevant constitutional inquiry as opposed to more nebulous provisions such as the Due Process Clause. County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998).
222. Katz v. United States, 389 U.S. 347, 361 (1967).
223. Id. at 351.
224. Kyllo v. United States, 533 U.S. 27, 31 (2001).
225. Arizona v. Hicks, 480 U.S. 321, 324-25 (1987).
226. California v. Greenwood, 486 U.S. 35, 40 (1988); Smith v. Maryland, 442 U.S. 735, 744 (1979); United States v. Miller, 425 U.S. 435, 443 (1976).
227. William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 GEO. WASH. L. REV. 1265, 1269 (1999).
228. United States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc).
229. Id. at 816.
230. Id. at 836.
231. Id.
232. Id. at 836-37.
233. Id. at 837-38.
234. Id. at 837.
235. Id. at 837-38.
236. See Nicholas v. Goord, 430 F.3d 652, 671 (2d Cir. 2005) ("We therefore conclude that New York's statute, which serves a special need beyond the normal need for law enforcement, is supported by strong government interests that outweigh the relatively minimal intrusion on plaintiffs' expectation of privacy.").
237. Id. at 669.
238. Id. at 670.
239. Id.
240. See N.Y. EXEC. LAW § 995-c(5) (McKinney 2007) ("The sample shall be collected, stored and forwarded to any forensic DNA laboratory which has been authorized by the commission to perform forensic DNA testing and analysis for inclusion in the state DNA identification index."). There is no persuasive argument for retaining samples. Once a sample is typed and entered into the database, it is thenceforth associated with the individual and their identifying information. In the event that the sample should later be shown to match a crime scene, the individual would be arrested and typed again for confirmatory purposes. Thus, retention of the physical specimen - and the wealth of intimate information it contains - is unjustified.
241. Nicholas, 430 F.3d at 670.
242. Id. (citing N.Y. EXEC. LAW §§ 995-d(1) to -f) (emphasis added).
243. United States v. Karo, 468 U.S. 705 (1984).
244. United States v. Knotts, 460 U.S. 276 (1983).
245. Karo, 468 U.S. at 711-13; Knotts, 460 U.S. at 282-85.
246. Knotts, 460 U.S. at 285.
247. See Schmerber v. California, 384 U.S. 757, 772 (1966).
248. Katz v. United States, 389 U.S. 347, 351 (1967).
249. For instance, in a high-profile Durham, North Carolina, murder case, the prosecution presented evidence of the defendant's DNA on a Diet Coke can found at the crime scene. John Springer, Witness Juggling Puts Trial on Hold, COURT TV NEWS, July 30, 2003, http://www.courttv.com/trials/ novelist/073003_ctv.html; see also David H. Kaye, Science Fiction and Shed DNA, 101 NW. U. L. REV. COLLOQUY 62 (2006), http://www.law.northwestern.edu/lawreview/colloquy/2006/7 ("Shed DNA is a real issue.").
250. Elizabeth E. Joh, Reclaiming "Abandoned" DNA: The Fourth Amendment & Genetic Privacy, 100 NW. U. L. REV. 857, 865-66 & nn.43-45 (2006).
251. For an argument that First Amendment values ought to shape and inform Fourth Amendment inquiries, see Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112, 151-54 (2007).
252. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 9 (2003) (Souter, J., concurring).
253. Michael C. Dorf, Equal Protection Incorporation, 88 VA. L. REV. 951, 962-63 (2002).
254. Doe v. Phillips, 194 S.W.3d 833, 844-45 (Mo. 2006) (en banc). But see People v. Kail, 501 N.E.2d 979, 982 (Ill. App. Ct. 1986) (finding the prosecution of a prostitute under an obscure ordinance requiring bells on bicycles to violate the Equal Protection Clause, even under rational basis review); ACLU v. City of Albuquerque, 137 P.3d 1215, 1225-26 (N.M. Ct. App. 2006) (finding sex offender registration not to implicate "fundamental rights" but nonetheless invalidating some of the law's provisions under rational basis review).
255. See, e.g., Doe v. Moore, 410 F.3d 1337, 1340 n.1 (11th Cir. 2005) (finding that certain crimes also require a nexus to the sexual offense); ACLU, 137 P.3d at 1226 (invalidating registration based on kidnapping and false imprisonment convictions); State v. Small, 833 N.E.2d 774, 782-83 (Ohio Ct. App. 2005) (invalidating a provision as applied to a defendant convicted of kidnapping if no sexual motivation were shown).
256. Indeed, as technology continues to bestow a range of options for engaging virtually in the world, questions of space and identity become increasingly complex. A virtual self may have as much dimension and depth as an actual one - perhaps even more. Yet at the same time, no matter how robustly realized the virtual person may be, it is hard to deny the persistent truth of the physical being. I am reminded of the scene in David Henry Hwang's reinterpretation of Madame Butterfly, in which the civil servant Gallimard - having learned that the opera diva with whom he has fallen in love is in fact a man, and not a woman - commits suicide because he cannot overcome the physical sexual identity of his lover, notwithstanding her pleas that "[i]t's the same skin you've worshipped for years. Touch it." DAVID HENRY HWANG, M. BUTTERFLY act 3, sc. 2.
257. Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124-25 (1978) (setting forth a balancing test for determining what constitutes a regulatory taking). In struggling to define what constitutes a taking, however, the Court has similarly privileged physical deprivations. Id. at 125 ("A 'taking' may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good."). I thank Professor Ron Wright for suggesting this analogy.
258. Osborn v. United States, 385 U.S. 329, 343 (1966) (Douglas, J., dissenting) (emphasis added).
259. Amy Finkelstein, E-ZTax: Tax Salience and Tax Rates 34 (Nat'l Bureau of Econ. Research, Working Paper No. 12924, 2007), available at http://www.nber.org/~afinkels/papers/EZTax_Finkelstein_February_07.pdf;
260. see also David Leonhardt, Technology Eases the Ride to Higher Tolls, N.Y. TIMES, July 4, 2007, at C1 ("A decade after one [tollbooth] gets electronic tolls, it will be about 30 percent more expensive on average than a similar tollbooth without it. There [is] no shortage of examples: the Golden Gate Bridge, the George Washington Bridge and the Tappan Zee Bridge, among them.").
261. Finkelstein, supra note 240, at 34-35.
262. See Michael Cabanatuan, FasTrak Bridge Traffic Speedier, Thanks to Faster Metering Lights, S.F. CHRON., Nov. 7, 2007, at B2 (noting that the highway authority gave "FasTrak users a 10-to-15 percent shorter wait, while delaying cash-payers by a similar amount" and citing a study by the toll authority that FasTrak users on certain highways move faster than cash payers).
263. Associated Press, SunPass Drivers Will Whiz by New Florida Turnpike Booths, ST. PETERSBURG TIMES, Jan. 22, 2007, http://www.sptimes.com/2007/01/22/State/SunPass_|drivers_will_.shtml.
264. See SIMON, supra note 3, at 2 ("Corrections has become the Pentagon of the state budgets, pushing other service priorities to the side and sending ostensibly conservative governments into a massive buildup of debt.").
265. A long literature documents and discusses the degree to which municipal and individual decisionmaking is made with biased, racist, or improper motives. See, e.g., DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM 16-55 (2005) (detailing examples of biased policing);
266. Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV. 1715, 1722-44 (2006) (noting inequalities in the lack of enforcement). But even biased decision making is resource constrained.
267. STANLEY COHEN, VISIONS OF SOCIAL CONTROL: CRIME, PUNISHMENT AND C LASSIFICATION 43 (1985). Relatedly, scholars have also reported on the effect of "destructuring movements . . . aimed at decreasing the size, scope and intensity of the formal deviancy control system," such as diversion and deinstitutionalization programs. Id. Rather than shrink the system, however, empirical study demonstrates that "the use of community alternatives actually causes an overall system expansion which might not otherwise have occurred." Id. at 49.
268. Professor Lawrence Lessig has made the same observation with regard to cyberlaw generally: "When the ability to search without burden increases, does the government's power to search increase as well?" LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 17 (1999).
269. Smith v. Doe, 538 U.S. 84, 100 (2003) (emphasis added).
270. Id. at 99 (rejecting the notion that any special significance should be accorded to the fact that online publication magnified the harm by making readily available information that was otherwise cumbersome to obtain).
271. Id.
272. For instance, sex offenders in Maine were killed by a Canadian who traveled from Nova Scotia and had used the Internet to identify potential victims in Vermont, New Hampshire, Massachusetts, and Maine. David Hench, Sex Offender Registries Offer Insight, PORTLAND PRESS HERALD, Apr. 30, 2006, at A1 (describing how the killer compiled a list before leaving his home in Nova Scotia).
273. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989).
274. Ronald Corbett & Gary T. Marx, Critique: No Soul in the New Machine: Technofallacies in the Electronic Monitoring Movement, 8 JUST. Q. 399, 400 (1991).
275. William Saletan, Call My Cell: Why GPS Tracking Is Good News for Inmates, SLATE, May 7, 2005, http://www.slate.com/id/2118117. This sum compares to the estimated sixty-two dollars per inmate daily it requires to incarcerate someone.
276. JAMES J. STEPHAN, U.S. DEP'T OF JUSTICE, STATE PRISON EXPENDITURES, 2001, at 1 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/spe01.pdf. As such requirements have swept the nation, however, questions about the cost of effective implementation have been raised.
277. See, e.g., Michael Rothfeld, Viability of Sex-Offender Law in Doubt, L.A. TIMES, Nov. 27, 2007, at A1 (detailing the dispute within California over which agencies must shoulder the significant costs of voter-enacted GPS-tracking laws).
278. Corbett & Marx, supra note 254, at 403 (noting that "[p]risons are very expensive institutions, averaging (in 1987 dollars) between $50,000 and $75,000 per new cell for construction and $14,000 for imprisoning one offender for a year"); STEPHAN, supra note 253, at 1 (reporting annual operating costs of state prisons at $22,650 per year per inmate).
279. Reporters Comm., 489 U.S. at 764 (finding privacy implicated in the FBI's dissemination of a rap sheet, which collected publicly available but dispersed conviction and arrestee information into a single document).
280. See BUTLER, supra note 23, at 436, 442 (describing the high costs of clearing the backlog of untested DNA and setting up databases, but noting the benefits of making that investment).
281. See id. at 442-43 (describing Virginia's initial need to rely on outsourcing to process its samples until it cleared a backlog and "built . . . capacity").
282. A number of states require tracked individuals to pay for their tracking. E.g., ALA. CODE § 15-20-26.1 (LexisNexis 2007); ARK. CODE ANN. § 12-12-923 (2007); GA. CODE ANN. § 42-1-14 (2007); MICH. COMP. LAWS ANN. § 791.285 (West 2007); S.C. CODE ANN. § 23-3-540 (2007). The same is true of many SCRAM programs. See Keeping Watch, supra note 56 (noting that the "offender must pay the entire cost of participating in the [SCRAM] program, which includes a refundable deposit of $100, a $75 installation fee and a daily fee of $12 for the service").
283. N.C. OFFICE OF STATE BUDGET & MGMT., N.C. DEP'T OF JUSTICE, COST STUDY OF DNA TESTING AND ANALYSIS 12 (2006) (reporting on various ways in which states recoup costs by imposing surcharges on convicted offenders or court penalties).
284. See supra Part I.C.
285. See State v. Cooley, 587 N.W.2d 752, 753 (Iowa 1998) (reporting that defendant Michael Cooley did not desire the "problems and harassment" accompanying any form of probation and therefore "would rather serve his [sic] whatever time he gets rather than being put on probation for this"); Lawrence Van Gelder, Arts, Briefly, N.Y. TIMES, Apr. 27, 2006, at E2 (reporting that actress Michelle Rodriguez, faced with the choice of going to jail for five days or paying a $500 fine and spending 240 hours performing community service for a drunk driving charge, chose jail saying "I kind of have to get back to my life"). Another celebrity, Kiefer Sutherland, prioritized his ability to work over his personal freedom: he elected to serve a forty-eight-day jail sentence in two stints that would not conflict with the filming of his popular television show, rather than a shorter period of time that would have interrupted the schedule.
286. Associated Press, '24' Star Pleads No Contest in DUI Case, To Serve 48 Days, CNN.COM, Oct. 10, 2007, http://www.cnn.com/2007/SHOWBIZ/TV/ 10/10/sutherland.arrested.ap.
287. In re Commitment of William P. Browning, 113 S.W.3d 851 (Tex. App. 2003).
288. Id. at 857.
289. Kansas v. Hendricks, 521 U.S. 346 (1997).
290. In re Commitment of Browning, 113 S.W.3d at 859.
291. Id. at 858.
292. Physical commitment has been held constitutional if accompanied by fairly elaborate procedural safeguards approximating those available in a criminal trial. Kansas v. Crane, 534 U.S. 407, 409 (2002); Seling v. Young, 531 U.S. 250, 267 (2001); Hendricks, 521 U.S. at 366. But the persons subject to technological surveillance are not necessarily limited to only those adjudicated eligible for physical commitment. See supra Part I.
293. E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997). This case focused on the original "Megan's Law," named after a child who was brutally raped and murdered by a convicted sex offender.
294. Id. at 1104-05.
295. Id. at 1102.
296. Id. at 1105.
297. Doe v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997). Several courts have drawn the same analogy. See, e.g., Doe v. Sex Offender Registry Bd., 697 N.E.2d 512, 519 (Mass. 1998) ("The offenders in these cases do not face a potential loss of liberty . . . ."); Commonwealth v. Williams, 832 A.2d 962, 982 (Pa. 2003) ("[T]he duties imposed . . . are not in themselves sufficiently onerous to qualify as punishment.").
298. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003) ("[T]he law's requirements turn on an offender's conviction alone - a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.").
299. Id.
300. See supra Part I.C.
301. See Audrey Maness, Comment, Does the First Amendment's "Right of Access" Require Court Proceedings to Be Televised? A Constitutional and Practical Discussion, 34 PEPP. L. REV. 123, 147 & n.199 (2006) ("Many court rules also provide for exclusion of select testimony based upon objections from certain classes of persons: namely, victims, informants, undercover agents, relocated witnesses, or juveniles.").
302. Smith v. Doe, 538 U.S. 84, 99 (2003).
303. Nakashima, supra note 99 ("[A] request reaches an FBI server every second from somewhere in the United States or Canada, comparing a set of digital fingerprints against the FBI's database of 55 million sets of electronic fingerprints. A possible match is made - or ruled out - as many as 100,000 times a day.").
304. Antony Barnett, Police DNA Database Is "Spiraling Out of Control," OBSERVER (London), July 16, 2006, at 4 (reporting scandals in England regarding a private company's retention of genetic samples sent to a lab for outsourced testing, as well as reports that the Home Office gave permission for controversial genetic studies to be conducted on samples).
305. One court noted that even within a single statutory regulation scheme, "looking at each provision in isolation tends to artificially dilute the overall impact of the ordinance." ACLU v. City of Albuquerque, 137 P.3d 1215, 1225 (N.M. Ct. App. 2006).
306. See supra notes 30-34, 66-68 and accompanying text.
307. See supra notes 52-53, 101-114 and accompanying text. Increasingly, however, states have moved to enact legislation providing for GPS tracking of certain offenders. See, e.g., N.J. STAT. ANN. § 30:4-123.92 (2007) (providing for "the continuous, satellite based monitoring of sex offenders in this State").
308. See Katherine Beckett & Steve Herbert, Dealing with Disorder: Social Control in the Post-Industrial City, 12 THEORETICAL CRIMINOLOGY 5, 10-16 (2008) (describing a wide spectrum of official authorities capable of generating spatial exclusions).
309. See ADAMS, supra note 68, at 5.
310. Id.
311. See supra Part II.
312. See Doe v. Phillips, 194 S.W.3d 833, 842 (Mo. 2006) (en banc) (rejecting a host of state constitutional challenges to the state's registration act, including a substantive due process claim).
313. See E.B. v. Verniero, 119 F.3d 1077, 1111 (3d Cir. 1997); ACLU v. City of Albuquerque, 137 P.3d 1215, 1221 (N.M. Ct. App. 2006) (upholding city's sex offender registration act against ex post facto, double jeopardy, and cruel and unusual punishment attack, but striking certain provisions as violating federal constitutional substantive due process, equal protection, and the Fourth Amendment).
314. Indeed, some courts expressly forbid a claim under one provision of the Constitution when the same claim better fits another part of the Constitution. See, e.g., Dubbs v. Head Start, Inc., 336 F.3d 1194, 1203 (10th Cir. 2003) ("[W]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." (quoting County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998))).
315. See, e.g., MAX WEBER, POLITICS AS A VOCATION 2 (Fortress Press 1965) (1918) (defining a state as an entity which claims a monopoly on the legitimate use of physical force in a given territory);
316. Donald Dripps, The Exclusivity of the Criminal Law: Toward a "Regulatory Model" of, or "Pathological Perspective" on, the Civil-Criminal Distinction, 7 J. CONTEMP. LEGAL ISSUES 199, 207 (1996) ("A monopoly on legitimate violence must be established in a government, and that government must commit itself to respecting the law in exercising its monopoly.").
317. But see Ric Simmons, Private Criminal Justice, 42 WAKE FOREST L. REV. 911, 911 (2007) (reporting the emergence of an "alternative private criminal justice system").
318. Simmons, supra note 291, at 911 (describing the limited operation of the state action doctrine even with regard to private police).
319. Dummer, supra note 94, at 268 (explaining that such databases are privately maintained, and that no statutory regulation akin to the Fair Credit Reporting Act or other watchdog-type legislation exists to entitle individuals to access to or correction of wrong information); Linda L. Lane, The Discoverability of Sensitive Security Information in Aviation Litigation, 71 J. AIR L. & COM. 427, 427 (2006) ("A plaintiff's inability to access Sensitive Security Information ('SSI') often defeats that plaintiff's claim that he was harassed or denied boarding without cause.").
320. Although this added layer of complexity is beyond the scope of this Article, an example of such action is evident in Virginia v. Hicks, 539 U.S. 113 (2003), in which the Supreme Court addressed a "trespass notice" issued by the Richmond Redevelopment and Housing Authority (RRHA), id. at 117. The RRHA, a "political subdivision of the Commonwealth of Virginia" that operates a low-income housing project in Richmond, purchased a previously public street from the city and then pursued trespass complaints against undesirable visitors to the development. Id. at 116-18. Addressing a First Amendment claim based on the "unfettered discretion" of the housing project's manager to permanently ban visitors without any process or recourse, id. at 121, the Court held the policy sufficiently legitimate to overcome an overbreadth challenge, id. at 124.
321. Id.
322. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (holding that the state owes a duty of care to those in its custody); see also Youngberg v. Romeo, 457 U.S. 307, 315 (1981) (noting in a due process claim by an institutionalized individual that "the State concedes that respondent has a right to adequate food, shelter, clothing, and medical care").
323. Bell v. Wolfish, 441 U.S. 520, 537 (1979). See generally GRESHAM M. SYKES, THE SOCIETY OF CAPTIVES: A STUDY OF A MAXIMUM SECURITY PRISON 63-83 (Atheneum Printing 1970) (1956) (documenting and cataloging the effects of imprisonment as a deprivation of liberty, goods and services, sexual freedom, autonomy, and security).
324. Paul v. Davis, 424 U.S. 693 (1976).
325. Id. at 709. In fact, the Court in Paul used this basis to distinguish Wisconsin v. Constantineau, 400 U.S. 433 (1971), which found a liberty interest in the purchase of liquor that had been denied without due process when the chief of police posted a notice forbidding the sale of liquor to the defendant for one year, id. at 433. The opinion suggested that the problem was that the notice was "a stigma, an official branding of the person" in a "degrading" manner, without prior notice or opportunity to be heard. Id. at 437. The Court held, "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Id. But the Paul Court reinterpreted the holding as not about stigma, finding that such an interpretation "could be taken to mean that if a government official defames a person, without more, the procedural requirements of the Due Process Clause . . . are brought into play." Paul, 424 U.S. at 708. Instead, the linchpin was that the state action caused "a right or status previously recognized by state law [to be] distinctly altered or extinguished." Id. at 711. Because "any harm or injury to that interest [in reputation] . . . does not result in a deprivation of any 'liberty' or 'property' recognized by state or federal law," it needs no procedural safeguarding. Id. at 712.
326. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 6-7 (2003).
327. Smith v. Doe, 538 U.S. 84, 99 (2003).
328. James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1059 (1998).
329. The debates surrounding the use of shaming penalties contain a parallel critique - specifically, that such penalties "involve a dangerous willingness, on the part of the government, to delegate part of its enforcement power to a fickle and uncontrolled general populace." Id. at 1088.
330. Id. at 1090-91.
331. Smith, 538 U.S. at 109-10 n.* (Souter, J., concurring).
332. Id. (quoting Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir. 1997)).
333. Id. (quoting E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997)); see also Brief for Office of the Pub. Defender for the State of New Jersey et al. as Amici Curiae at 7-21, Smith v. Doe, 538 U.S. 84 (2003) (No. 01-729) (noting past instances of physical assault and harassment).
334. Eric Louie, Seller's Sex-Offender Status Angers Alamo Home Buyers, CONTRA COSTA TIMES, (Cal.) May 29, 2007, at A3.
335. Solove, Digital Dossiers, supra note 16, at 1084; see also MARK POSTER, THE SECOND MEDIA AGE 90 (1995) ("With databases, most often, the individual is constituted in absentia . . . .").
336. Many have written, perhaps most famously Michel Foucault, on the disciplinary power of panoptic institutions. MICHEL FOUCAULT, DISCIPLINE & PUNISH: THE BIRTH OF THE PRISON 215-16 (Alan Sheridan trans., 2d ed. 1995) (describing the formation of a "disciplinary society" characterized by "an indefinitely generalizable mechanism of 'panopticism'" that evolves from formal institutions of power or control).
337. Indeed, in contrasting penal confinement with nonrestraining punishments, Professor Frank Zimring observed that "[t]he distinction between influence and control is somewhat moderated when temporal limits are imposed on incapacitation and when a quick response potential is built into monitoring systems." FRANK ZIMRING, INCAPACITATION 157 (1995). After all, "well-designed monitoring systems that can respond rapidly to initial deviance may exercise more effective control over a population in the middle term than intermittent periods of secure confinement." Id.
338. Williams & Johnson, supra note 17, at 11.
339. FOUCAULT, supra note 310, at 200.
340. Id. at 201.
341. Williams & Johnson, supra note 17, at 12.
342. FOUCAULT, supra note 310, at 202. Foucault noted that the patrolled subject "becomes the principle of his own subjection." Id. at 203.
343. In this respect, it is the object of controlling information, rather than the means by which it is controlled, that matters. Professor Mark Poster observes that: Properly understood the panopticon is not simply the guard in the tower but the entire discourse/practice that bears down on the prisoner, one that constitutes him or her as a criminal. The panopticon is the way the discourse/practice of the prison works to constitute the subject as a criminal and to normalize him or her to a process of transformation/rehabilitation. My argument is that, with the advent of computerized databases, a new discourse/practice operates in the social field, a superpanopticon if you will, which reconfigures the constitution of the subject. POSTER, supra note 309, at 85.
344. See, e.g., Nigel Morris, A 'Chilling' Proposal for a Universal DNA Database, INDEPENDENT (London), Sept. 6, 2007, available at http://findarticles.com/p/articles/mi_qn4158/is_20070906/ai_n19519872; Weiss, supra note 35, at A1.
345. But see D.H. Kaye & Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 WIS. L. REV. 413, 415 (2003).
346. ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118, 131 (1969).
347. Id. at 122-23.
348. Id. at 131.
349. Id. at 124 (noting this is so even if "[w]here it is to be drawn is a matter of argument"). Berlin also clarifies that this concept of self-actualization refers only to limitations placed by others; the inability to self-realize due to limitations of one's own self, or of the physical world, does not count. Id. at 122.
350. Id. at 126-27.
351. Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 CAL. L. REV. 957, 971 (1989).
352. Id. (adding that the common law is "relatively indifferent to whether particular forms of respect should be denominated as 'privacy'"). Professor Post writes, "An individual's ability to press or to waive territorial claims, his ability to choose respect or intimacy, is deeply empowering for his sense of himself as an independent or autonomous person." Id. at 973.
353. Professor Mark Poster, drawing upon Foucault's analysis of the Panopticon as a discourse of disciplinary power, has observed that databases are "a new discourse/practice operat[ing] in the social field, a super-panopticon if you will, which reconfigures the constitution of the subject." POSTER, supra note 309, at 85. Although Poster's comments relate only to databases, and include all forms (not just public regulatory) of databases, his observations that "[c]omputerized databases are nothing but performative machines, engines for producing retrievable identities" ring particularly true in the context of preventive regulation of the dangerous. Id. at 89.
354. Smith v. Doe, 538 U.S. 84, 101 (2003) (emphasis added); see also Femedeer v. Haun, 227 F.3d 1244, 1250 (10th Cir. 2000) ("[T]hey are nevertheless free to live where they choose, come and go as they please, and seek whatever employment they may desire.").
355. Doe v. City of Lafayette, 377 F.3d 757, 760 (7th Cir. 2004) (en banc).
356. Id. at 769.
357. Id. at 769 & n.11.
358. Id. at 771. The court added that Doe "cites no case, state or federal, that has held that the right to enter the park to loiter or for other enjoyment purposes is 'fundamental.'" Id. The court disputed that the plurality in City of Chicago v. Morales, 527 U.S. 41 (1999), intended "in this statement any type of fundamental rights analysis," City of Lafayette, 377 F.3d at 772. The court then cited scholarly discussion of the dissenters in Morales, who accused the majority of claiming that "fundamental rights" liberty for substantive due process was distinguishable from "liberty interests" in procedural due process. Id. at 772 n.13 (citing 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 15.5, at 52 (3d ed. Supp. 2004)).
359. City of Lafayette, 377 F.3d at 770.
360. Id. at 771.
361. The district court even cited the fact that Doe had not entered a park for innocent purposes in ten years as support for its argument that the right was not fundamental. Doe v. City of Lafayette, 160 F. Supp. 2d 996, 1002 (N.D. Ind. 2001). Of course, such reasoning undermines the value of freedom from government interference by presenting liberty as a useit-or-lose-it entitlement. Another case similarly reveals the cramped definition of liberty currently espoused by the courts. The Sixth Circuit addressed a public housing project's practice of issuing "barring orders" that prohibit individuals from entering the property, even upon invitation of a guest. See Thompson v. Ashe, 250 F.3d 399, 403-04 (6th Cir. 2001). The "notrespass" lists are formulated by the housing authority's vice president, with "no formal set of written criteria to determine who should be placed on the list." Id. at 403. There is no review of a decision to ban, and the banning notices "do not inform the individual of the reason for the ban, do not place a time limit on the ban, and do not advise the recipient how he or she may seek to be removed from the list." Id. at 404. In fact, "[n]o established procedure exists to remove individuals from the no-trespass list." Id. Violators are arrested and prosecuted for trespassing. See id. In rejecting the defendant's procedural due process claim, the court noted that the policy affected no cognizable liberty interest. Id. at 407-08. After acknowledging the fundamental right to "carry on certain intimate or private relationships," the court observed that there was no "constitutional protection to mere visitation with family members," or general right to "freedom of movement." Id. at 406-07.
362. JOHN HART ELY, DEMOCRACY AND DISTRUST 96 (1980).
363. See Gall v. United States, No. 06-7949, slip op. at 9-10 (U.S. Dec. 10, 2007).
364. Id. at 9.
365. Id.
366. See Smith v. Doe, 538 U.S. 84, 101 (2003); see also id. at 100-01 (emphasizing that registry regime does not curtail ability to engage in any activities, but merely requires regular reports about them).
367. John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners, Predators, and Patients, 92 VA. L. REV. 391, 401-02 (2006).
368. Id. at 402 n.42.
369. See, e.g., In re K.L., 806 N.E.2d 480, 486-87 (N.Y. 2004) (finding due process standard met by statutory scheme for outpatient commitment).
370. Cf. FOUCAULT, supra note 310, at 201 ("The crowd, a compact mass, a locus of multiple exchanges, individualities merging together, a collective effect, is abolished and replaced by a collection of separated individualities. From the point of view of the guardian, it is replaced by a multiplicity that can be numbered and supervised; from the point of view of the inmates, by a sequestered and observed solitude.").
371. Cf. Kehoe v. Fid. Fed. Bank & Trust, 421 F.3d 1209, 1216 (11th Cir. 2005) (finding that the statute did not require proof of actual damages to privacy to recover liquidated damages); Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. CIN. L. REV. 645, 691 & n.205 (2004) (describing the widespread use of informants in low-income communities as engendering "a kind of personal and social 'malaise, described by some as a form of schizophrenia, which developed in response to the permanent suspicion that one might be under surveillance'"
372. (quoting BARBARA MILLER, NARRATIVES OF GUILT AND COMPLIANCE IN UNIFIED GERMANY: STASI INFORMERS AND THEIR IMPACT ON SOCIETY 133 (1999))); Post, supra note 324, at 960 (noting that court found the "gravamen of the plaintiff's cause of action rested solely on the intrusive installation of the offensive device" by the landlord, rather than on the actual listening to conversations (citing Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964)));
373. Daniel J. Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477, 487-88, 518 (2006) (describing cases that recognize a privacy interest founded in security of information).
374. California apparently has a collaborative program between sheriff's departments and the Department of Corrections that compares tracking and crime scene data for certain parolees. Janicki, supra note 47, at 295-96.
375. Nakashima, supra note 99.
376. Adam Liptak, Expunged Criminal Records Live to Tell Tales, N.Y. TIMES, Oct. 17, 2006, at A1 (reporting that "real expungement is becoming significantly harder to accomplish in the electronic age," because large commercial databases contain so many improperly retained records).
377. See supra Part III.C.
378. John R. Ellement & Suzanne Smalley, Sex Crime Disclosure Questioned, BOSTON GLOBE, Apr. 18, 2006, at A1;
379. see also Gregory D. Kesich, Killings Rekindle Vigilante Debate; Critics Say that Federally Mandated Sex Offender Registries Waste Resources and Invite Harassment, PORTLAND PRESS HERALD, Apr. 19, 2006, at A1 (listing other instances of vigilantism).
380. Kesich, supra note 349, at A1; see also Judy Harrison, Deaths of Gunman, Sex Offenders Probed, BANGOR DAILY NEWS, Apr. 19, 2006, at A1.
381. See Murphy, supra note 27, at 767 & n.202.
382. Id. at 755 n.154 (citing Glenn Puit, Police Forensics: DNA Mix-Up Prompts Audit at Lab, LAS VEGAS REV.-J., Apr. 19, 2002, at B1).
383. Id. at 756 n.155.
384. Id. at 755 n.151.
385. Scandals have likewise raged outside of the United States. In Australia, forensic testing in a child murder case turned up a clear suspect profile, which matched an unquestionably uninvolved rape victim whose DNA had been tested in connection with her own assault. Id. at 755 n.153. In the United Kingdom, it emerged that the Forensic Science Service authorized twenty research studies on DNA samples it had collected and that a private company, which was contracted to process DNA, had retained samples and demographic data. Barnett, supra note 280.
386. Smith v. Doe, 538 U.S. 84, 100 (2003).
387. United States v. Kincade, 379 F.3d 813, 837-38 (9th Cir. 2004) (en banc). In Johnson v. Quander, 440 F.3d 489 (D.C. Cir 2006), the court held that "[n]othing in the record suggests such future testing is imminent, nor can we analyze its invasiveness until it appears," id. at 500. One state court curtly concluded that the "assertion that the state might misuse the information derived from his DNA samples, when he makes no allegations of any specific misuse, fails to state a justiciable controversy." Boling v. Romer, 101 F.3d 1336, 1341 (10th Cir. 1996).
388. United States v. Knotts, 460 U.S. 276, 283-84 (1983) (citations omitted) (emphasis added) (addressing the placement of an electronic device to surreptitiously track movement).
389. See, e.g., William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 781-82 (2006) ("[o]vercriminalization, excessive punishment, racially skewed drug enforcement, overfunding of prisons and underfunding of everything else" are "familiar political problems" on the criminal justice landscape).
390. See generally Henry J. Friendly, The Bill of Rights As a Code of Criminal Procedure, 53 CAL. L. REV. 929, 930 (1965) (arguing as early as 1965 that "the Court . . . ought to realize there is danger in moving too far too fast; and that the statesmanship it has generally exhibited calls for a pause until the legislative process has had a fair chance to react to its great initiatives").
391. See Stuntz, supra note 359, at 785 ("Current constitutional law makes the politics of criminal justice worse: more punitive, more racist, and less protective of individual liberty."). See generally William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505 (2001) (detailing ways in which procedural entitlements perversely affect executive and legislative decision making). Stuntz instead advocates less procedural regulation by courts and greater substantive scrutiny of legislative measures. Id.
392. See, e.g., Robert Weisberg, First Causes and the Dynamics of Criminal Justice, 119 HARV. L. REV. F. 131, 139 (2006) (observing that hoping the legislature would step in to regulate more positively in the absence of judicial regulation "requires many leaps of faith about what the public will allow judges to do and what legislators will be willing to do");
393. David Alan Sklansky, Killer Seatbelts and Criminal Procedure, 119 HARV. L. REV. F. 56, 61 (2006) (arguing that "the ways in which Americans (and their elected representatives) 'value both privacy and process more than they once did' - have more than a little to do with the parallel changes in constitutional law, and the causation likely runs in both directions" and pointing out that when the Court "has left the political branches with a blank slate regarding the regulation of law enforcement, the slate has tended to remain blank");
394. see also 1 WAYNE R. LA FAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL PROCEDURE § 2.8(c) (2d ed. 1999) (reviewing various theories explaining the Supreme Court's protection of constitutional rights and noting that the notion that the Court is "protecting minorities" has "substantial force").
395. Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; Or, Why Don't Legislatures Give a Damn About the Rights of the Accused?, 44 SYRACUSE L. REV. 1079, 1093 (1993) ("[T]he class of persons at risk from false positives is relatively small and restricted to a diffuse and politically disinterested segment of society. The class of people at risk from false negatives is very large, and quite sensibly frightened about crime. Their interests are supported by a professional class with a very intense interest in the outcome of legislative decisions regarding criminal justice.").
396. See, e.g., Solove, Digital Dossiers, supra note 16, at 1126-27 (defending the warrant requirement and the role of Fourth Amendment enforcement as a "neutral and external oversight of the executive branch's power"); see also Orin Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 803 n.7 (2004) (collecting citations).
397. See, e.g., Kerr, supra note 364, at 857-82 (arguing that Fourth Amendment law fails to effectively regulate intrusive technologies and also that, from an institutional competence perspective, "[c]ourts tend to be poorly suited to generate effective rules regulating criminal investigations involving new technologies"); Stuntz, supra note 209, at 1265 (suggesting that the enactment of statutes designed to fill gaps left by the courts in regulating privacy demonstrates that, if left unregulated by courts, legislatures will step in and provide the necessary safeguards).
398. Frank Zimring & Gordon Hawkins, Democracy and the Limits of Punishment: A Preface to Prisoners' Rights, in THE FUTURE OF IMPRISONMENT 157, 157 (Michael Tonry ed., 2004); see also Dripps, supra note 291, at 210 (observing that the government "can circumvent the procedural safeguards of the criminal process" by "resort[ing] to a civil sanction for conduct that is widely despised in the community").
399. Cf. Dripps, supra note 291, at 216 ("[I]f the government resorts to institutions that both restrain and blame, it is appropriate to subject these nominally different institutions to the criminal procedure safeguards, for those safeguards respond to the very political risks posed by the institutional innovation."); Schulhofer, supra note 3, at 84 ("A much more robust limitation on 'civil' deprivations of liberty can be suggested. That limitation is, I argue, implicit in the foundational principles that frame the relation between government and the individual.").
400. Significantly, this position is consistent with the argument that constitutional criminal procedure should "reorient" itself from an unhealthy and ritualistic preoccupation with privacy to instead focus on the real locus of concern: coercive and abusive government power. William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1069, 1076-78 (1995) [hereinafter Stuntz, Privacy's Problem] (reviewing contradictory doctrines). It is also consistent with the argument that the heavy lifting for constitutional criminal procedure might better be done by the Equal Protection and Due Process Clauses, rather than by the Fourth Amendment or Bill of Rights generally. Stuntz, supra note 359, at 821.
401. Dripps, supra note 291, at 208.
402. See Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 570 (2005) (noting that computer searches may become less invasive as technology allows officials to pinpoint exactly the kinds of files they need);
403. Paul Rosenzweig, Civil Liberty and the Response to Terrorism, 42 DUQ. L. REV. 663, 682 (2004) (noting that invasions of electronic privacy may reduce the need for invasions of physical privacy, for instance in the context of data mining for no-fly lists).
404. Stuntz, supra note 359, at 795 (arguing that in fact "criminal suspects are a powerful interest group" and attributing legislative failures to protect the rights of criminal defendants to aggressive judicial constitutional intervention). But see Weisberg, supra note 362, at 134 ("[T]here is an important, if nuanced, difference between that portion of the populus that gets intrusively stopped by police and the much broader, more powerful class of people whose fear of privacy invasions is related not to criminal justice but to intrusive government more generally.").
405. Dripps, supra note 363, at 1088-89 (offering explanation of public choice failures in criminal justice context).
406. Weisberg, supra note 362, at 135-36 (observing that even white collar suspects and defendants have minimal political clout); see also JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 70-78, 109-10 (2007) (describing the emergence of crime control as a salient topic for attaining political power due to the general lack of opposition).
407. George P. Fletcher, Disenfranchisement As Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895, 1897-98 (1999).
408. CAROLINE WOLF HARLOW, U.S. DEP'T OF JUSTICE, DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000), available at http://www.ojp.usdoj.gov/bjs/pub/ pdf/dccc.pdf (finding that roughly 82 percent of state defendants and 66 percent of federal felony defendants are indigent).
409. ELY, supra note 335, at 97.
410. The term was apparently coined by Republican House Majority Leader Dick Armey in reference to the face-recognition technology used at the Super Bowl. Rachel Konrad, Airport Security Technology Under Scrutiny, CNET NEWS.COM, Sept. 12, 2001, http://www.news.com/2100-1001-272938.html.
411. See supra note 100.
412. The Supreme Court has increasingly exhibited resistance to this dichotomous formulation, and has slowly created a variation on the kind of nuanced inquiry advanced here. Although the Court remains reluctant to eschew its "reasonable expectation of privacy" test, it has carved out a sliding scale of procedural safeguards, measured in terms of "reasonableness" for a variety of special circumstances. Silas J. Wasserstrom, The Court's Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 AM. CRIM. L. REV. 119, 129 (1989) (observing trend); see also Stuntz, Privacy's Problem, supra note 368, at 1018-19 (reviewing contradictory doctrines).
413. Such a purpose might be ascertained from the context surrounding the measure's implementation, from express statements by the enacting officials, or even inferred from the nature of the measure itself.
414. Although it may at first glance seem odd to discuss both doctrines almost interchangeably, the reality of their relative applications reveal that they are in fact closely related. As Professor Laurence Tribe wrote with reference to the substantive aspect of the due process clause, "due process and equal protection, far from having separate missions and entailing different inquiries, are profoundly interlocked in a legal double helix." Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1898 (2004).
415. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938); see also Ben Geiger, Comment, The Case for Treating Ex-Offenders As a Suspect Class, 94 CAL. L. REV. 1191, 1216-30 (2006) (arguing that ex-offenders constitute a "suspect class" for Equal Protection purposes and refuting arguments against such treatment on grounds of either moral blameworthiness or constitutional approbation of disenfranchisement of ex-offenders).
416. Conn. Dep't. of Pub. Safety v. Doe, 538 U.S. 1, 9 (2003) (Souter, J., concurring).
417. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985).
418. City of Chicago v. Morales, 527 U.S. 41 (1999).
419. Id. at 64.
420. Id. at 53 (quoting Williams v. Fears, 179 U.S. 270, 274 (1900)).
421. Id. at 84 (Scalia, J., dissenting).
422. Cf. Lawrence v. Texas, 539 U.S. 558, 562 (2003) ("Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . . Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.").
423. See In re K.L., 806 N.E.2d 480, 482-83 (N.Y. 2004) (framing the issue seemingly, but ambiguously, as such under state constitution). The Supreme Court, for its part, has recognized a liberty interest in "avoiding the forced administration of antipsychotic drugs." Sell v. United States, 539 U.S. 166, 178 (2003).
424. Youngberg v. Romeo, 457 U.S. 307 (1982).
425. Id. at 319.
426. Id. at 310, 322.
427. Geiger, supra note 382, at 1206 & nn.89-92 (citing cases).
428. Romer v. Evans, 517 U.S. 620, 631 (1996).
429. See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 24-25 (1981) ("[D]ue process is not a technical conception with a fixed content," and thus "[a]pplying the Due Process Clause is . . . an uncertain enterprise which must discover what 'fundamental fairness' consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake." (citations omitted)).
430. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
431. But cf. Kansas v. Hendricks, 521 U.S. 346, 388 (1997) (Breyer, J., dissenting) (observing that the state's "failure to consider, or to use, 'alternative and less harsh methods' to achieve a nonpunitive objective can help show that the legislature's 'purpose . . . was to punish'"). Professor Christopher Slobogin has proposed a series of principles to govern preventive incapacitation determinations, derived from a variety of cases espousing similar values. Christopher Slobogin, A Jurisprudence of Dangerousness, 98 NW. U. L. REV. 1, 48-58 (2003).
432. Cf. Romer, 517 U.S. at 632 (observing that statutes that impose "a broad and undifferentiated disability on a single named group" are unconstitutional, in part because the "sheer breadth is so discontinuous with the reasons offered for it that . . . [it] seems inexplicable by anything
433. Smith v. Doe, 538 U.S. 84, 103 (2003).
434. See id.
435. For instance, a search of the California sex offender registry for a two-mile radius around the University of California at Berkeley School of Law turned up over 30 offenders. See Office of the Attorney Gen., California Megan's Law, http://www.meganslaw.ca.gov/ (last visited Apr. 6, 2008). Clicking the "address" box and then entering the search terms "2240 Piedmont Ave." in Berkeley, CA 94720 returns a map with dots indicating registered offenders. Clicking for individual information gives a photograph, name, address, and other identifying information - but gives only the code provision of conviction (making it difficult to determine the factual underpinnings of the offense) and no sense of how long ago the conviction occurred.
436. United States v. Kincade, 379 F.3d 813, 838 (9th Cir. 2004) (en banc).
437. Nicholas v. Goord, 430 F.3d 652, 668 (2d Cir. 2005).
438. In fact, most data on the efficacy of DNA testing appears to demonstrate its ability to exculpate offenders in specific cases. See Frederick R. Bieber, Turning Base Hits into Earned Runs: Improving the Effectiveness of Forensic DNA Data Bank Programs, 34 J.L. MED. & ETHICS 222, 222 (2006) (noting that statistics on DNA's effectiveness are urgently needed).
439. Rather, speculation regarding the success of collection and retention apparently sufficed. Of course, this is even so as documented evidence of malfeasance and misuse of DNA samples is dismissed as "conjecture." Nicholas, 430 F.3d at 669.
440. See, e.g., Am. Prosecutors Research Inst., DNA Evidence Policy Considerations for the Prosecutor, http://www.dna.gov/audiences/officers_court/ policy_prosecutor/ (last visited Apr. 6, 2008) (advising prosecutors in a cold-hit case to "review[] the viability of the case before law enforcement obtains a confirmation DNA sample from the subject").
441. This is also consistent with the historically disfavored category of status offenses. See Robinson v. California, 370 U.S. 660, 666-67 (1962) (finding it a violation of due process and cruel and unusual punishment to punish an individual for being addicted to narcotics).
442. United States v. Salerno, 481 U.S. 739, 754-55 (1987) (noting flight risk also justifies detention).
443. See Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 1 (2003).
444. Olmstead v. United States, 277 U.S. 438, 472 (1928) (Brandeis, J., dissenting).
445. Katz v. United States, 389 U.S. 347, 351 (1967).