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I've been pondering what the text of a proposed amendment disallowing routine DNA search would look like, and here's a shot at it:

No person shall be compelled to yield organic materials from their person except with the case of probable cause, supported by Oath or affirmation, and particularly describing the crime under which the person has been accused.
I think this places a higher burden of proof, and also draws a bright line as to what we consider to be a more intimate violation of the fourth and fifth amendments.  I wasn't able to find any proposals floating around online, but I suspect that this is the type of thing that would probably have a reasonable following.


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Comment Preferences

  •  Amendment 27: (2+ / 0-)
    Recommended by:
    Generic Democrat, soros
    Those other Amendments above? We really meant it.
    But didn't you hear what John Roberts told us? It's just
    A gentle rub along the inside of the cheek
    What are you so worked up about?

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Tue Jun 04, 2013 at 12:42:08 AM PDT

  •  and the righties are against (1+ / 0-)
    Recommended by:
    Generic Democrat

    background checks?

    This is not computing for me.......

  •  We Already Know What It Looks Like (1+ / 0-)
    Recommended by:
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    I can read that; you can read that. Time and reappointment will take care of Supreme Court justices who are less literate.

    On the Internet, nobody knows if you're a dog... but everybody knows if you're a jackass.

    by stevemb on Tue Jun 04, 2013 at 03:49:14 AM PDT

  •  the upside, I suppose, (1+ / 0-)
    Recommended by:

    is that it would all but eliminate drug testing, since they test for "organic materials".  On the other hand it would be a "get out free" card for many rapists (and other sex offenders), who are (or would be if it's successful) the primary beneficiaries of this anti-DNA craze.

    What is the reason for this new outbreak of misogyny?  What is the "social benefit" of letting or leaving rapists free?

    Can you give even a single example of a person arrested and convicted as a result of a DNA database search who was not in fact guilty?

    Fake Left, Drive Right . . . not my idea of a Democrat . . .

    by Deward Hastings on Tue Jun 04, 2013 at 04:20:33 AM PDT

    •  Still allows for drug testing and DNA testing (0+ / 0-) just requires a warrant.  It takes the warrant requirement from the 4th amendment almost verbatim; so now you need to have probable cause to do the search rather than making a routine thing.

    •  misreading of the amendment (0+ / 0-)

      DNA is insufficient to determine guilt; it's one piece of evidence, but in our justice system, we're required to have a jury hear from witnesses.  If you've ever been on a jury you'll notice that evidence always has someone vouching for it; the same thing has to happen with the DNA in question.

      The thing is, as much as I don't want rapists to go free, I'm inherently uncomfortable with this type of data collection outside the bounds of specific probable cause; my preference would be to have a constitutional guarantee to anonymity.

      Unfortunately such a system isn't really workable, so the second best is to require more people to positively affirm that what's being done is necessary for the well-being of society.  This means treating every instance as a special case.  If someone is accused of rape, and there is probable cause established by a prosecutor to a judge that this person indeed was involved, then collection can happen.

      The final example would be saying that everyone should always allow law enforcement to read everything on your computer, because you might be guilty of copyright infringement.  You could also be guilty of a lot of other things based on what's on your computer, but then there is no longer a presumption of innocence in those cases.

      In any case, I don't have a specific example, because I worry about the examples that haven't happened yet.

      •  but the end result IS rapists walking free. (1+ / 0-)
        Recommended by:

        Witness the case at hand . . . there would not have been anyone accused of rape without the database hit.  There was a rape.  There was DNA evidence (a profile) recovered from the victim.  Years later a DNA sample was collected (associated with arrest for a different crime) and it matched the evidence profile, a case was developed, and the rapist convicted.

        Until the DNA database hit there was no suspect.  Absent that database hit the rapist would still be at large.  That, and only that, is the result of restricting DNA profiling.  Your "examples that haven't happened yet" exist only in your imagination . . . the rapist you want set free is very real.

        Do you have similar objection to fingerprints and mug shots?  

        Fake Left, Drive Right . . . not my idea of a Democrat . . .

        by Deward Hastings on Tue Jun 04, 2013 at 10:43:38 AM PDT

        [ Parent ]

        •  objections to fingerprints and mug shots (0+ / 0-)

          I would if it weren't material to a particular arrest.

          I'm okay with a particular arrest being used to search against other convictions or outstanding arrests in other jurisdictions; I'm not as okay with a search against DNA samples for every arrest.  Certainly if you're arresting someone for a history of domestic violence it's certainly probable cause.

          The problem here, and the fundamental disagreement between you and me, is that I am willing for bad people to go free in order to preserve some semblance of liberty.  I find child pornography utterly deplorable, but I am unwilling to force everyone arrested to decrypt their hard disk drive to present evidence that they're innocent of crime.  I believe that driving drunk should not be allowed at all, but if there is any reasonable doubt in the case, I'd rather a hung jury than one that sought to "teach a lesson."

          "If you're innocent you have nothing to hide" is entirely insufficient, in my book.  While I believe the government as a whole can be a force of good, checks and balances are necessary in order to prevent specific individuals from using procedures meant to protect society from terrorizing it.

          The burden of investigation should always be on the prosecution.  If you don't believe in the tenets behind certain amendments (I certainly think the 2nd is perhaps outdated) then that's perfectly fine.

          I also think that DNA is fundamentally different than a mug shot or fingerprints; in it is information which you could use to show propensity for mental illness; in the future you could use it to determine someone's selfishness.  I am utterly uncomfortable with the "we're just using it for identity, trust us" ...I'd much rather

          Incidentally, I think that this specific case could still have been solved under this amendment; past unsolved cases could fall under probable cause for search.  The difference is that this would disallow Maryland's blanket statute, and would require a warrant for collection of DNA.  It also disallows a database for future crimes; it would by necessity need to be a separate search.

          •  yes, it's a fundamental difference (0+ / 0-)

            You are "willing for [rapists] to go free" and rape some more on the ridiculous pretext that it will "preserve some semblance of liberty" to do so.

            The "liberty" to rape is not so high on my list of virtues.

            In fact I don't see positive identification by crime scene evidence as a threat to "liberty" at all.  I do see rapists as a threat to women's liberty, and violent criminals in general as a threat to mine.  You don't, and yes, that's a fundamental difference.

            This specific case absolutely would not and could not have been solved "under this amendment", since until the DNA database hit there was no known connection between the subsequently identified rapist and the crime . . . meaning that the "unsolved case" could not possibly generate "probable cause" to "search" the rapist.  Of course he wasn't "searched" by having a DNA sample taken any more than he was searched when being fingerprinted . . . a buccal swab is no more a "search" (and no more intrusive) than rolling your thumb on an ink pad is.  His identity was established, and once established it led (just as a fingerprint would have had there been fingerprint evidence) to evidence left at the scene of a previous crime.  Of course rapists do not typically leave fingerprints on their victim . . . skin is a poor surface for that . . . but they do often leave biological material containing DNA.

            As for the other speculations you offer to justify letting rapists rape some more . . . well . . . the 13 (soon to be 15) loci used for identification profiling have nothing to do with "mental illness" or "someone's selfishness".  They have no medical, or any other, diagnostic use.  The loci used were chosen because they are not expressed, serve no known function, and are not strongly conserved.  It is the variability that results that makes those loci useful for identification, not any association with function.  In fact the 13 core STR profile loci don't even identify gender . . . one tests amelogenin for that.

            Fake Left, Drive Right . . . not my idea of a Democrat . . .

            by Deward Hastings on Tue Jun 04, 2013 at 07:52:13 PM PDT

            [ Parent ]

  •  Just made a petition (0+ / 0-)

    “The Republicans believe in the minimum wage — the more the minimum, the better.”-Harry S Truman

    by Generic Democrat on Tue Jun 04, 2013 at 04:22:16 AM PDT

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