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Welcome to the “Genetic Panopticon”

Supreme Court skirts 4th Amendment with ruling on pre-conviction DNA collection

The Supreme Court ruled on Maryland v. King Monday in a split-party 5-to-4 decision, echoing national ambivalence, but ultimately determining that police can take DNA samples from people who are arrested for serious crimes, prior to conviction. This is a far-reaching decision: Justice Samuel Alito, part of the majority, called Maryland v. King “perhaps the most important criminal procedure case that this Court has heard in decades.”

The case was based on the experience of Alonzo King, who was serving a reduced sentence for which no DNA sampling would have been required, when his DNA (which had been taken at arrest) was linked to an unsolved rape case six years prior. This evidence was used to sentence King to life in prison.

The Supreme Court determined that the practice of taking a DNA sample from an arrestee is no different from fingerprinting: a minimally intrusive means to determine identity. This is a useful analogy for people in favor of rampant DNA sampling; one can compare the easy act of taking a mouth swab to giving a fingerprint, and this seems to side-step the Fourth Amendment’s prohibition of unreasonable search and seizure.

However, arrestee identification is almost never what DNA sampling is actually used for. And DNA holds much more information than a fingerprint; the intrusiveness it represents occurs when database searches are conducted, not when an arrestee’s mouth is swabbed.

DNA samples are entered into a national database and used for solving cold cases – previous, unsolved crimes. Using a potentially innocent person’s DNA for this purpose clearly violates the Fourth Amendment, which forbids searching for evidence for an unrelated crime without reasonable suspicion.

Justice Antonin Scalia accused the majority side of “sleight of hand” for using the fingerprint analogy, noting that DNA testing can take months to process and is rarely used strictly for identification purposes. His extremely vocal dissent stressed the negative impact of the decision:

"Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason."

Many are shocked by the court’s decision. Michael Risher, staff attorney for the ACLU of Northern California, called it “a serious blow to genetic privacy.” The Council for Responsible Genetics called it "a serious blow to human rights.”

Noah Feldman wrote for Bloomberg that it

"is a landmark because it represents a major step toward a “Gattaca” world. This means that evidence of a crime can be collected without any particular suspicion, avoiding the pesky requirement of a warrant that the Founding Fathers thought would give us liberty and privacy."

Walter Olson asks on The Daily Beast, “How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?”

Jacob S. Sherkow, a Fellow at Stanford Law School, who actually agrees with the decision, nevertheless finds fault with the legal analysis. He wrote:

"We live in a peculiar world where the contents of one’s pockets is a “‘cherished personal security’ that is subject to constitutional scrutiny,” but the contents of one’s mouth is not."

The spotlight will likely now turn to California, where the state’s Supreme Court and the U.S. 9th Circuit Court of Appeals have been holding a decision on the state’s use of arrestees’ DNA until after the Maryland v King ruling. In 2004, California passed Proposition 69, which allows police to collect DNA from people arrested of a range of crimes, and enter it in a database that is accessible to all local, state, national, and international law enforcement agencies.

The Supreme Court’s decision in Maryland v. King does not guarantee that California’s much broader program will also be allowed to continue unobstructed. Maryland only takes DNA from those arrested for violent felonies and burglaries, and if the person is acquitted, the DNA sample is automatically removed from the database. But in California, anyone arrested for a felony (which includes drug possession and joy riding) is required to give a DNA sample and if the charges are dropped, the person has to apply to have his or her sample removed. The ACLU filed a lawsuit against the Proposition in 2009 and will continue to challenge the California program.

The fundamental fight – that data from potentially innocent people should not be used to connect them to unrelated crimes – has been lost. Nonetheless, there is a chance that California will become an example of going too far. Hastings law professor David L. Faigman noted, “To the extent that the California law is broader in a pertinent way, meaning that it leads to appropriating the DNA and using it in a broader and more invasive fashion, it might still be vulnerable to 4th Amendment challenges.”

California already has the third largest DNA database in the world. Despite this, it generates comparable numbers of matches as states with much smaller databases. This is because it has been shown (repeatedly) that solving crimes is less about the number of DNA samples collected from people than the amount of evidence collected from crime scenes. DNA databases already face debilitating backlogs, with the number of samples submitted far greater than the ability of laboratories to analyze them.

As Emily Bazelon wrote in Slate,

"Surely the wave of DNA collection that the court unleashed Monday will catch some future McVeigh. But processing all that information may gum up the works, proving overall to be a big and misguided distraction. This is the kind of cumulative cost that’s harder to see."

Furthermore, since racial minorities are disproportionately targeted by police in most jurisdictions, the impact of heightened genetic surveillance will also disproportionately impact these communities. The practice of familial searching, which is currently allowed in California, Colorado, Texas and Virginia, only further exasperates this problem.

Justice Scalia warned of a “genetic panopticon” in his dissent, referring to Jeremy Bentham’s idea of a prison in which inmates knew they could be watched at any and all times, but never knew if they were actually being watched at any particular time. This was designed to lead the inmates to internalize the surveillance and monitor themselves. Nearly one third of the United States population is arrested before the age of 23. As of April 2013, the National DNA Index contained a total of 12,247,200 DNA profiles. If DNA collection continues this exponential expansion, a “genetic panopticon” doesn’t seem so farfetched.

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