Volume 97 - Virginia Law Review

Clear Rules—Not Necessarily Simple or Accessible Ones

In The Complexity of Jurisdictional Clarity, Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. With his typical aplomb, Dodson disentangles the concept of clarity from the analytically distinct, though often conflated, debates over rules versus standards and mandates versus discretion. He critically examines the many difficulties that render the creation of clear and simple jurisdictional rules utopian. And he tallies the traditionally uncounted costs of jurisdictional clarity. Dodson’s piece is perceptive, challenging, and thought provoking.

In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity-enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple, and accessible. In the third section, I contend that a focus on clarity in isolation, in lieu of simplicity or accessibility, both furthers Dodson’s project of illustrating that the value of clarity is often a false idol and reveals the inherently empirical nature of the question. I close by noting that although Dodson’s piece importantly demonstrates that jurisdictional clarity comes at a cost, his inability to resolve these underlying empirical questions makes it unlikely that he will quiet those advocating clarity-based jurisdictional reform.

On Proportionality and Federalism: A Response to Professor Stinneford

John Stinneford’s latest article sheds fresh light on the original public meaning of the Eighth Amendment. Stinneford provides a cogent rejoinder to Justice Scalia’s position that the Cruel and Unusual Punishments Clause contains no proportionality principle. But to show that the Clause contains some proportionality requirement gets us only part of the way to an understanding of what that proportionality principle demands. And Stinneford’s work falters in its articulation of the proportionality requirement of the Cruel and Unusual Punishments Clause as understood in 1791. He claims, in essence, that the Clause was understood as generally constraining Congress from inflicting punishments that were significantly harsher than those imposed at common law for the same offense. While Stinneford’s assertion that the Clause imposed common-law constraints on Congress’s power to punish is well supported, he incorrectly assumes a consensus in 1791 about the nature of the common law. To the contrary, the conceptions of the common law in 1791 were far from homogenous. Specifically, around that time, a more modern, Realist notion of the common law began to emerge and was championed by the Anti-Federalists, who conditioned ratification of the Constitution on the inclusion of a Bill of Rights and whose views are therefore critical to an understanding of the Cruel and Unusual Punishments Clause. Thus, while Stinneford is probably correct that the Clause was widely understood in 1791 as imposing common-law constraints on the federal government’s power to punish, it is unlikely that there was any consensus as to what that meant. In particular, the Anti-Federalists—and their political heirs, the Republicans—took a more state-centered approach than Stinneford would allow.

DNA Database Trawls and the Definition of a Search in Boroian v. Mueller

CONVICTED offenders have brought dozens of constitutional challenges to statutes establishing DNA databases for law enforcement. Not one has succeeded. In United States v. Weikert, the United States Court of Appeals for the First Circuit rejected a Fourth Amendment challenge from a probationer who objected to providing the government with a sample of his DNA, explaining that

the government’s important interests in monitoring and rehabilitating supervised releasees, solving crimes, and exonerating innocent individuals outweigh Weikert’s privacy interests, given his status as a supervised releasee, the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification.

By “identification,” the court meant trawling through the national database of stored DNA profiles from offenders—now exceeding nine million—for possible matches to any of the hundreds of thousands of DNA profiles of samples found at crime scenes or on victims.

But how long can past offenders constitutionally be subject to this information-gathering practice? Is there no way an offender can escape “lifelong genetic surveillance”? Weikert prominently left open the question of extended retention and trawling of biometric information. The court wrote that it was

withholding judgment on whether retaining a former conditional releasee’s DNA profile in [the national database] passes constitutional muster. The distinction in status between a current and a former offender clearly translates to a change in the privacy interests at stake. A former conditional releasee’s increased expectation of privacy warrants a separate balancing of that privacy interest against the government’s interest in retaining his profile in [the database].

Now, in Boroian v. Mueller, the First Circuit has held that the government can keep a convicted offender’s DNA profile in a law enforcement database even after he has paid his metaphorical debt to society. This outcome is hardly surprising. Long-lasting, collateral consequences of convictions have become pervasive, and continuing to trawl for matches to unsolved crimes after a convicted offender is no longer subject to confinement or supervision adds significantly to the power of DNA databases.

Much more surprising is the doctrinal path that the First Circuit elected to follow. The court repudiated the notion that it needed to reexamine the balance of individual and state interests. Instead, it reasoned that continuing to trawl the database for hits to crime scene DNA profiles did not rise to the level of a search that would be subject to the strictures of the Fourth Amendment. The court’s explanation of this conclusion was rather terse, consisting of but a few sentences. This Essay starts to fill the gap in the opinion. It indicates how the no-search label reflects a settled understanding of the constitutional protection from unreasonable searches and seizures. In this way, it supplies a deeper structure that supports the retention and reuse of DNA profiles beyond the sentencing period.

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