{"id":10431,"date":"2017-03-18T11:29:29","date_gmt":"2017-03-18T15:29:29","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10431"},"modified":"2017-03-18T11:29:29","modified_gmt":"2017-03-18T15:29:29","slug":"when-science-meets-civil-rights","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/when-science-meets-civil-rights\/","title":{"rendered":"When science meets civil rights"},"content":{"rendered":"

Should a person with an IQ score of as low as 57 be sentenced to die because \u201c[m]ost Texas citizens might agree\u201d that his \u201creasoning ability and adaptive skills\u201d are greater than those of John Steinbeck\u2019s character Lennie from Of Mice and Men<\/em>? That, in a sense, is the question presented by Moore v. Texas<\/a><\/em>, a pending Supreme Court case for which oral argument was heard in November 2016. Moore<\/em> challenges the standards by which Texas determines if a defendant\u2019s intellectual disability makes them ineligible for the death penalty under the Eighth Amendment (as interpreted in Atkins v. Virginia<\/em> and Hall v. Florida<\/em>). Specifically, Moore<\/em> asks whether it is cruel and unusual for for Texas to \u201cprohibit the use of current medical standards\u201d and \u201crequire the use of outdated medical standards\u201d when assessing intellectual disability.<\/p>\n

In 1980, Bobby James Moore, along with two other men, robbed a supermarket, and a store employee was killed. Moore was sentenced to death<\/a> for the shooting. A federal court granted habeas corpus relief, and in 2001, Moore was sentenced to death again. He turned to the state for habeas relief on the grounds that he was intellectually disabled\u2014he failed first grade twice but was promoted to the second grade so he wouldn\u2019t be too much older than other students; he didn\u2019t understand the days of the week, how to tell time, or that subtraction is the opposite of addition at age 13; and he suffered a traumatic head injury as a child. The state granted relief based on the standard in Atkins v. Virginia<\/em>. The Criminal Court of Appeals reversed the decision, holding that Moore was not disabled based on case law that relied on a 1992 definition of intellectual disability<\/p>\n

In 2002, the Supreme Court ruled in Atkins v. Virginia<\/a><\/em> that the Eighth Amendment prohibits executing intellectually disabled defendants. The Court left it to the States to develop \u201cappropriate ways to enforce the constitutional restriction upon its execution of sentences.\u201d The Court (somewhat ambiguously) refined its holding in 2014, when it ruled in Hall v. Florida<\/a><\/em> that the criteria for determining intellectual disability \u201cis distinct from a medical diagnosis but is informed by the medical community\u2019s diagnostic framework.\u201d<\/p>\n

Texas\u2019 response to Atkins<\/em> and Hall<\/em> has been to implement its own standard for intellectual disability as developed in a 2004 Texas Court of Criminal Appeals case, Ex parte Jose Garcia Briseno<\/a><\/em>.\u00a0 Whereas most states use \u201ca combination of intelligence testing and clinical assessment<\/a> to confirm that a defendant has severe intellectual disabilities,\u201d Texas looks for a \u201clevel and degree of mental retardation at which a consensus of Texas citizens<\/a> would agree that a person should be exempted from the death penalty.\u201d According to the American Bar Association, Texas has sentenced to death \u201cdefendants with intellectual disabilities<\/a> whom other jurisdictions almost certainly would have recognized as exempt.\u201d<\/p>\n

Moore v. Texas<\/em> raises important questions about constitutional and reliable assessments of intellectual disability for the purpose of capital punishment. More broadly, however, Moore<\/em> illustrates how constitutional rights may be influenced by scientific and technological advancements. Other legal areas, such as the use of polygraphs, capital punishment, and forensics, also reveal the complicated framework between science and civil rights.<\/p>\n

Polygraphs<\/em><\/p>\n

As an indicator of truth, the polygraph\u2014or \u201clie detector\u201d\u2014carries a special weight in social consciousness. In reality, however, polygraphs are generally not admissible<\/a> as evidence in courts. The National Academy of Sciences has said that the accuracy of polygraphs can range from 55 to 99 percent<\/a>, depends on the specific contexts of each test. Despite their suspect status<\/a> as reliable evidence, law enforcement officials<\/a> nonetheless use polygraph tests while conducting investigations and when monitoring people on probation<\/a>. If the results of lie detectors aren\u2019t trusted as evidence in court, what does it mean that they are permitted in other parts of the legal process?<\/p>\n

The 10th Circuit recently tried to reduce that inconsistency, by barring the use of lie detectors in probations for sex offenders. In a 2016 decision, the court held that \u201csex offenders released from custody cannot be compelled to answer potentially incriminating polygraph questions<\/a> as a condition of their supervised release.\u201d In its decision, the 10th Circuit focused specifically on the Fifth Amendment implications of compelling the use of a polygraph. Even disregarding the debated reliability of these tests, polygraphs as a part of probation can still conflict with constitutional rights.<\/p>\n

At the same time, lawyers and courts should remain aware of lie detectors\u2019 dubious reliability. A Duquense law professor noted her concern about the subjectivity<\/a> of these tests as well as the lack of scientifically accepted methods and standards for the administration of the test. She added that she thought polygraphs have become common in probation cases because \u201cwe\u2019re just terrified of sexual offenders<\/a>.\u201d<\/p>\n

Death penalty <\/em><\/p>\n

For centuries, citizens and policymakers have searched for a \u201chumane\u201d way of executing the perpetrators of the most heinous crimes. The guillotine, bloody symbol of France\u2019s Reign of Terror, was actually adopted by the revolutionaries because it was believed to provide a quick, painless death. Today, the preferred civilized killing method is lethal injection. Sodium thiopental<\/a> \u201crenders the person deeply unconscious and unable to feel the paralysis brought on by the pancuronium bromide, which causes the person to lose the ability to breathe,\u201d and the \u201cextremely painful\u201d potassium chloride. But a molecular biologist, Teresa Zimmers, studying this process with colleagues \u201cfound no evidence<\/a> to support the use of this protocol, the dosage of the drugs or the order in which the drugs were administered in executions.\u201d<\/p>\n

In 2008, the Supreme Court held in Baze v. Rees<\/a><\/em> that Kentucky\u2019s method for lethal injection (which was similar to the method<\/a> used by most states) was constitutional under the Eighth Amendment. Indeed, in the opinion, Chief Justice Roberts wrote that the lethal injection was the result of \u201cprogress\u201d to \u201cmore humane means<\/a> of carrying out the sentence.\u201d Since Baze<\/em>, however, issues with the sodium thiopental supply<\/a> have arisen because of domestic and international restrictions on its sale. States have started using alternate substances<\/a> (such as pentobarbital\u2014which Oklahoma state officials have said is ideal \u201cfor humane euthanasia in animals\u201d\u2014and midazolam), the question of the method\u2019s \u201chumaneness\u201d persist.<\/p>\n

In the 2015 case Glossip v. Gross<\/a><\/em>, the Supreme Court held that the use of midazolam was constitutional (because the petitioners \u201cfailed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims\u201d). The syllabus began, \u201cBecause capital punishment is constitutional, there must be a constitutional means of carrying it out.\u201d Yet Justices Breyer and Ginsburg dissented in Gross<\/em>, and questioned the basic constitutionality of the death penalty.<\/p>\n

The Supreme Court\u2019s holdings have not changed the graphic descriptions of death row inmates suffering under lethal injection. A 75-year-old Alabama prisoner on death row requested execution by firing squad, but his appeal was rejected in February by the Supreme Court under the caption Arthur v. Dunn<\/em>. Justice Sotomayor dissented<\/a>, writing that \u201c[i]n addition to being near instant, death by shooting may also be comparatively painless. Condemned prisoners, like Arthur, might find more dignity in an instantaneous death rather than prolonged torture on a medical gurney.\u201d (Though she did not question the constitutionality<\/a> of the punishment itself.)<\/p>\n

While lethal injections are still legal, there is growing outcry about the humaneness of the method, leading to the question of what humane methods of execution are.<\/p>\n

DNA exoneration<\/em><\/p>\n

\u201cThe forensic DNA age dawned with little fanfare on August 14, 1989,\u201d writes<\/a> the Northwestern Pritzker School of Law Center on Wrongful Convictions. Gary Dotson had been convicted of rape and aggravated kidnapping a decade earlier, based on a story told by the presumed victim, Cathleen Crowell. The original case relied on Crowell\u2019s story as well as forensic testimony<\/a> (eventually proven to be erroneous) based on a pair of Crowell\u2019s underwear that had semen and vaginal fluids.<\/p>\n

After an eventful decade with new hearings, clemency appeals, and parole violations<\/a>, DNA testing became an option for Dotson\u2019s parole hearing in 1988. The judge and Illinois governor agreed to the testing, and Alec Jeffreys\u2014a British geneticist who developed restriction fragment length polymorphism (RFLP)\u2014agreed to perform a test that could link suspects to crime based on their unique DNA. Unfortunately, the genetic material from Crowell\u2019s underwear was too old to support the analysis.<\/p>\n

A new method, though, called polymerase chain reaction (PCR), had been patented in the mid-1980s, and while PCR could not identify the exact suspect, it could \u201cinclude or exclude a suspect among a group of the population who could have been the source of genetic material recovered from a crime scene.\u201d More importantly, PCR could work with old samples as well as new ones. This technology conclusively proved that Dotson could not have produced the semen found in Crowell\u2019s underwear. Although Dotson languished in prison for another year, the charges against him were finally dropped and he was released.<\/p>\n

Since Dotson, over 300 people<\/a> have been exonerated of crimes based on DNA evidence. Much like polygraphs, DNA forensics has become inextricably tied to the criminal system in popular culture (and in the minds of jurors) as the technology has grown more common. DNA exoneration is a strong example of how changes in technology can affect criminal law, civil rights, and the popular conception of justice. Now, lawyers can use science to convict the guilty and exonerate the innocent.<\/p>\n

Yet even as DNA forensics provides an important check against wrongful convictions, it also raises new problems for the criminal justice system. There have been instances of police technicians misinterpreting DNA analyses<\/a>, which can produce wrongful convictions that carry the imprimatur of scientific authority\u2014as Matthew Shaer writes in the Atlantic<\/em>, \u201cscience is only as reliable as the manner in which we use it.\u201d For DNA, the manner in which the technology is used also is evolving rapidly. With new advancements, the analysis becomes more complicated and errors become more common.<\/p>\n

Furthermore, jurors\u2019 and lawyers\u2019 focus on DNA evidence often means that other developments in criminology have been ignored. Common reasons<\/a> for wrongful convictions include eyewitness misidentifications, false confessions, poor decision-making, and the use of dubious forensic science. Changing the standards for eyewitness identifications or videotaping police interrogations could help decrease the incidence of wrongful convictions, especially in cases for which no DNA evidence is available. DNA exoneration is an essential part of the criminal justice system, but the focus on the science should not be at the expense of other critical reforms.<\/p>\n","protected":false},"excerpt":{"rendered":"

The recent Supreme Court case, Moore v. Texas, illustrates how constitutional rights may be influenced by scientific and technological advancements. Other legal areas, such as the use of polygraphs, capital punishment, and forensics, also reveal the complicated framework between science and civil rights.<\/p>\n","protected":false},"author":152,"featured_media":10432,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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