Analysis Law and Policy

Should Pregnant Women Be Concerned With SCOTUS Review of DNA Testing?

Jessica Mason Pieklo

A law designed to help catch serial rapists may have unintended consequences for pregnant women.

Ten years ago the state of Virginia became the first to require anyone arrested for a serious crime to undergo a mouth swab for DNA. Suspects were swabbed regardless if they were charged and soon, 27 other states and the federal government followed the practice. Besides capturing a subject’s fingerprints, standard practice at jail bookings now often includes a DNA swab.

It was that practice that led to the arrest and conviction of Jorge Torrez in the rape and attempted murder of an Arlington, Virginia woman. A few weeks after his arrest in that crime, a DNA match also led to charges against him in the rape and murder of two young girls in Illinois. Jerry Hobbs, the father of one of the girls, had been convicted and was in prison for the crimes. That evidence led to Hobbs’ eventual release.

It’s that practice, of taking DNA samples from people who are arrested for serious crimes, that the Supreme Court will review to determine if it constitutes an unreasonable search. Nationwide DNA samples are taken as a matter of course from people convicted of violent crimes. But gathering those samples before a conviction, and using them, raises some tricky constitutional considerations. And with more and more states policing pregnant women it forces the difficult question of how to balance the legitimate law enforcement aims of capturing rapists with the privacy rights of individuals.

The case before the Court deals with the 2009 conviction of Alonzo King. King was arrested by Maryland police for waving a shotgun in a threatening manner. In Maryland that was a felony which means King was swabbed. King later pleaded guilty to a lesser charge for which no DNA test was required, but the DNA sample that had been taken at his arrest linked King to a burglary and rape from six years earlier. King was eventually convicted and sentenced to life in prison.

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But Maryland’s supreme court overturned his conviction ruling police cannot take DNA samples without a search warrant and probable cause that the suspect had committed another offense. “DNA samples contain a massive amount of deeply personal information,” far more than a fingerprint, the state judges said. Therefore, the sample is far more intrusive, especially in those cases where it is taken before a conviction.

Complicating matters further, last month President Obama signed into law the Katie Sepich Enhanced DNA Collection Act, which is designed to pay the start-up costs for other states who have not yet started the practice to begin testing people arrested. The law is extremely popular with victims rights advocates who argue collecting a DNA sample at arrest is minimally intrusive to those in custody (the sample is usually collected via a cotton swab of a suspect’s cheek) and reasonable given the enormous potential the DNA samples have in solving horrific crimes like rapes and murders, the practice should be considered constitutional.

When placed in context of finding serial rapists and murderers and prosecuting rapes cases that would otherwise go ignored it’s nearly impossible to argue against the practice. In the case of Katie Sepich, her attacker was arrested several times but was not identified until after he was convicted of another crime and his DNA taken. Finding those criminals earlier no doubt saves lives. In terms of potential government searches and under those circumstances DNA collection sounds completely reasonable.

But when placed in the context of policing pregnant women, and with fetal homicide laws becoming a favorite of the right, the privacy concerns of this practice are more apparent. Take for example the case of a pregnant woman recently arrested in Tennessee. After police responded to a crash involving her vehicle she was charged with DUI and child endangerment despite the fact that her blood alcohol content was only half the legal limit and she had no child in the car with her at the time of the crash. Her status as a pregnant woman changed the manner in which the police responded to her accident, and its a shift we’re seeing nationally where law enforcement increasingly approach pregnant women as potential criminal actors in relationship to their pregnancies. That means, for example, in states with fetal homicide laws already on the books, a woman arrested for suspicion of credit card fraud could face a DNA swab to test for drugs, alcohol, or the pregnancy itself when before the police required some reasonable and identifiable suspicion of those crimes before conducting a “search” so to speak. In short, pregnant women may find themselves even more policed than before.

Should the Supreme Court find the practice does violate the 4th Amendment then in some ways the problem is solved in the short-term as those states and the federal government will have to go back and amend their policies in line with whatever guidance the Court chooses to offer. In that scenario, we have an opportunity, because the answer to these concerns may not be to undo a police practice that is at this point almost commonplace but instead to organize against the ever-encroaching fetal rights movement, and it may be that the Supreme Court offers us an unexpected opening.

News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”

Commentary Race

No Sense in Slaughter: ‘Law and Order’ Policing Is About Irrational Fear

Katherine Cross

The wholesale murder of Black men and women by police strikes with a kind of caprice, often driven more by whims, bigotries, and disordered fates than any sense in law enforcement or anything meaningfully tied to the actions of the victims.

“Senseless” is our favorite adjective to describe not just mass killings but all manner of murders. To most any person, regardless of class, race, or station, there is no sense to be found in slaughter. But this depth of unreason plunges further still with some crimes. Such is the case with the mass murder of Black Americans, performed in increments measured by police shootings. No sense, logic, or order can be imposed on something so inherently chaotic, so without reason or purpose.

Yet, countless white people on social media and mass media alike try to find a reason for the murder. He wore a hoodie. She didn’t follow instructions. He didn’t drop the toy gun. He twitched his leg threateningly. They shouldn’t have been in that neighborhood. She was playing her music too loud. They should’ve fixed their taillight. This apparent desire for justification satisfies not only the racist conviction that it is somehow acceptable for a Black person to lay dead from an officer’s sidearm, but also the “just world hypothesis” that too many of us remain addicted to: the false belief in a world where virtue is rewarded and vice is punished, where “everything must happen for a reason.”

To be sure, racist systems of power in the United States have methodically propagated the idea of Blackness as a threat that needs to be controlled, which is a twisted kind of logic unto itself. In this environment, however, where so many—particularly white people—have been weaned on the notion of Black criminality, the wholesale murder of Black men and women by police strikes with a kind of caprice, often driven more by whims, bigotries, and disordered fates than any sense in law enforcement or anything meaningfully tied to the actions of the victims.

As we search for answers in the wake of atrocities—in Dallas, Baton Rouge, St. Paul, and countless other cities—we can begin with this senselessness.

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This attempted analytical strategy is not a new endeavor. In writing about Nazi internment and concentration camps, for example, philosopher and political theorist Hannah Arendt strove to do the unthinkable: Find sense in a pit of murderous chaos. But it was precisely a lack of sense, she discovered, that was key to the experience the Nazis—and many totalitarians before and since—had tried to create.

There’s no small irony in my invocation of her to understand this epic, continually unfolding crime. Arendt’s contempt of Black youth movements toward the end of her life was breathtaking in its bitter and intellectually uncurious contempt; she, too, had revealed herself to be an anti-Black racist. But like so many people who indulge such prejudices, her more transcendental ideas—such as this one—endure even with her failings.

As Arendt wrote:

The world of the dying, in which men are taught they are superfluous through a way of life in which punishment is meted out without connection with crime, in which exploitation is practiced without profit, and where work is performed without product, is a place where senselessness is daily produced anew. (Emphasis mine.)

Her point was that the terror of the camp lay in its disconnect from logic. You might face punishment even if you did nothing wrong, either according to the rules of the camp, or a higher moral authority. Your labors were Sisyphean, their own punishment, and rarely serving some higher end. Even when they were practical labors, they were deliberately inefficient, meant to cause suffering rather than ensure the speedy production of some good. For Arendt, this was central to totalitarian life.

This was how you made human beings superfluous as human beings, as she put it. You removed all sense from their lives, rendered their labors fruitless, took the very thing that makes us human—meaningful activity and life through our work—and rendered it an engine of vile nonsenses. If nothing you do has any connection to your prosperity or well-being, then what really is the point of life but random thrashing?

Whether Arendt herself might have approved of this understanding of her theory or not, the “daily production of senselessness” has bled out of the camps of Europe and into the day-to-day practices of police forces around the world, especially in the United States. In police brutality, too, we see a world of unreason. Death has no connection to guilt or what one can be meaningfully said to “deserve.”

This is what makes the plaintive wailing of the “All Lives Matter” crowd so tone-deaf, especially when they veer in the direction of critiquing every breath of those who have been restrained from breathing freely. Consider Megyn Kelly’s unconscionable second-guessing of Lavish “Diamond” Reynolds, Philando Castile’s girlfriend, for not rendering aid to her dying partner outside of St. Paul, even as a police officer brandished a gun in her direction. Or CNN analyst Harry Houck, who said that the very fact Reynolds filmed the atrocity is cause to doubt both the sincerity of her affection for Castile and the man’s innocence. Each of these perversities is, of course racist; neither would happen if the victims in question were not Black, period. They are also attempts to impose order on what is inherently chaotic and without sense: the summary execution of innocent people, en masse, by the people whose very job is to maintain that vaunted “law and order.”

The unspoken corollary to all these excuses is always “therefore they deserved to die.” They didn’t put their hands up fast enough, therefore they deserved to die. They ran, therefore they deserved to die. They were walking in the “wrong” neighborhood, therefore they deserved to die. They made a Facebook post where they had a “thug” selfie, therefore they deserved to die. On and on and on.

It is here where discourses about “respectability politics” come into play—the idea that we as marginalized people should not treat “acting respectable,” as defined by those in our society with the most cultural capital, as a path to acceptance and liberation. Castile did everything right. He was gainfully employed, beloved at the school where he worked as a cafeteria manager—and his long history of being stopped by the police testified more to the racism of local police departments than any wrongdoing on his part. During this final traffic stop, he politely informed the policeman about his concealed handgun, as he is obliged to do by law. For doing everything “right,” he ended up dead from several shots to the chest.

This is not to suggest that it would be “logical” or “just” or “sensible,” of course, if all Black victims of police brutality were only those people with criminal records, who resist arrest or run, or who had weapons; those people are not somehow more “deserving” of death or abuse. And even if they were the sole victims of police violence, a similar senselessness would prevail—in a world where a minor infraction or a long-ago served sentence would still lead to summary execution, where police who have been able to capture even dangerous white suspects alive can only ever seem to put bullets in Black “offenders.”

This, in the end, is the reason. Black people are killed indiscriminately, no matter their job, their level of education, their erudition, their politeness, their criminal record or lack thereof, and so on.

Black Lives Matter—for all the unjust slanders hurled its way by politicians, police union bosses, and Twitter trolls—is actually an example of a profoundly dignified attempt to restore order in the best way possible. Its tactics of peaceful but highly visible protest demand better of us all, non-Black people of color and white people alike. It summons us to our better ideals, calling for the restoration of sense, and reason: the simple recognition that Black lives matter and should be afforded the full suite of human and civil rights. That requires structural change; it is not something one law can fix. It’s beyond the scope of body cameras, certainly.

BLM’s staunchly nonviolent ethic, and its humane approach to police—which unequivocally condemns recent attacks on officers in Dallas and Baton Rouge, while seeking justice for the victims of police—actually makes a better claim to being about “order” than all the defensiveness of the police, and their many paid defenders in the press. “Law and order” politics and policing have always been about irrational fear and hatred, never about order in the sense of creating a safe life of sensible and predictable outcomes connected to one’s actions. The sole “logic” to be found in all of this is being seen as a mortal threat because of the color of one’s skin, and this fact produces a special kind of terror.

All victims have been rendered superfluous as human beings, to use Arendt’s phrase. Black individuals live knowing that all of their efforts can come to nothing due to the caprice of a racist police officer’s bullet.

With such senselessness ruling the day, is it any wonder some will abandon all reason in response, as with the killings of police officers in Dallas and in Baton Rouge? That some may feel murder is all that can meet murder? The problem is indeed a lack of order, but not for the reasons many police chiefs and white twitterpaters may think; the “order” police currently uphold is one of utter chaos with no rhyme or reason behind it, save the fundamental irrationalities of racism and fear tinged by racism. There can be no order when mothers and fathers must counsel their children in the nearly vain hope that “good behavior” might save their lives from a police officer frightened by the color of their skin, when no right action or a life well lived is any insurance against such an ignoble death.

So is it a surprise when “the law,” a term synonymous with the police themselves, is increasingly not respected for its own sake? As Ta-Nehisi Coates points out in the Atlantic about Micah Xavier Johnson, the man who murdered five police officers in Dallas:

In the black community, it’s the force they deploy, and not any higher American ideal, that gives police their power. This is obviously dangerous for those who are policed. Less appreciated is the danger illegitimacy ultimately poses to those who must do the policing. For if the law represents nothing but the greatest force, then it really is indistinguishable from any other street gang. And if the law is nothing but a gang, then it is certain that someone will resort to the kind of justice typically meted out to all other powers in the street.

When you scaremonger about Johnson’s crimes, or about the need for “law and order,” this is all very much worth remembering. To many in this country, the police are simply the legal gang: vice by another name, tied to the coffers of the state, with only a gloss of virtue to separate it from the illicit variety. The murder of police officers remains criminal and tragic, both for all the obvious reasons, and because the realm of unreason and uncertainty they create is slowly consuming them as well, as Coates notes.

This is one of many reasons we must cease casting about for a just world and instead seek to create one—first by acknowledging the lack of justice in the one we have.

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