Jessica Cussins

Genetic Crossroads

A Right to Your DNA

Will pre-conviction DNA collection become the national norm?

Posted Feb 08, 2013

Should states be allowed to collect and analyze DNA without a search warrant for those arrested but not convicted of a crime? The U.S. Supreme Court will tackle this question on February 26 when it hears King v. Maryland, a case that will have a profound impact on the future of the country’s criminal justice system.

In 2009, Maryland police arrested Alonzo King for waving a shotgun in public, a felony in the state, and required him to submit his DNA. Though he later pled guilty to a reduced charge, which would not have required the DNA sample, it had already been used to link him to an unsolved rape case six years prior, for which he was then sentenced to life in prison. The Maryland Court of Appeals reversed this ruling on the basis that the DNA collection was a breach of the Fourth Amendment protection against unreasonable search and seizure. If the Supreme Court comes to the same conclusion, it will draw an important line in the sand about what constitutes misuse of genetic information.

Electronic Frontier Foundation’s amicus brief of February 4 points to the critical flaw in thinking of DNA as merely a means to identify individuals.

"Maryland officials claim that DNA is necessary for definitive identification, but they do not use the sample to "identify" the arrestee. Instead, they use the sample for other investigatory purposes – retaining and repeatedly accessing the wealth of personal information disclosed by an individual's genetic material despite lacking individualized suspicion connecting the arrestee to another crime. This violates the Fourth Amendment."

The ACLU’s February 1 brief offers important information about how DNA collection from arrestees does not actually increase the number of crimes solved. The brief cites numerous reports that have found it to be more effective to spend resources on searching crime-scene samples, rather than on increasing the number of offender profiles in the database. They share an elucidating example of how over the top the practice of pre-conviction DNA collection can be:

"The federal government can require you to give a DNA sample if you are arrested for walking your pet off-leash (or with a leash more than 6 feet long), or even parking violations on federal land. The government should not be able to seize, analyze, and permanently databank your DNA just because you took your dog to the park with a 7-foot leash."

Unreasonable search and seizure is not the only concern surrounding the requirement of collecting DNA samples from arrestees. The Council for Responsible Genetics filed a brief with the Supreme Court on February 4, making the case that this practice specifically puts minorities under increased surveillance, since they are already disproportionately targeted for arrests. As CGS Senior Fellow Osagie Obasogie argued in Playing the Gene Card, the increasingly used practices of partial and familial searches will only intensify this problem, leading to further injustices and discrimination against under-represented people and communities.

Despite all of these concerns, there is currently a lot of momentum in the other direction. All states require DNA from people convicted for a felony, but over the past decade twenty-eight states and the federal government have additionally moved to mandate the collection of DNA from at least some arrestees. Last month, President Obama signed the Katie Sepich Enhanced DNA Collection Act, which will help pay for the remaining states to follow suit.

The appropriate use of DNA samples for criminal justice purposes is being hotly contested all over the country. In just the past week proposals to expand DNA collection have been introduced in Colorado and Michigan, while less than stellar results have emerged from New York surrounding their implementation of partial-match technology and mishandling of DNA evidence in crime labs. The Opinion staff at the Los Angeles Daily News wrote a scathing account of one California District Attorney’s suggestion that all undocumented immigrants should be required to submit their DNA in order to stay in the country, renouncing the notion as Orwellian and adding,

"Innocent until proven guilty" is a foundation of American democracy and freedom. When we chip away at that, we're sliding toward Big Brother's totalitarianism.

California currently takes DNA samples from people arrested for non-violent crimes, including drug or property crimes, where DNA evidence has nothing to do with the case at hand, and is not required to destroy the samples if the arrestee is released without charges. Both the California Supreme Court and the Ninth Circuit Court of Appeals are currently holding their decisions on the legality of this practice to first see what happens with King v. Maryland. The Supreme Court decision will either reverse the trend of this erosion of privacy, or formally entrench it as the national norm.

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