Tuesday, June 4, 2013

Cook County to begin taking and storing DNA samples from innocent people

Following yesterday's Supreme Court opinion in Maryland v. King, in which the Court approved a Maryland law allowing the state to take DNA samples from all people accused of certain serious crimes, the Cook County sheriff's office announced today that it would start doing the same thing:
With the U.S. Supreme Court clearing the way for police to collect DNA from suspects in serious crimes, the Cook County sheriff's office says it will begin taking samples next month from jail inmates charged with murder, home invasion and certain sexual offenses. 
An Illinois law that took effect early last year allowed law enforcement officials throughout the state to take that action, but Cook County authorities decided to hold off until the Supreme Court weighed in on the issue.
As the Tribune article notes, the existing law already required DNA samples be taken from everyone convicted of serious crimes. No one disputes that this is appropriate and constitutional. But the new law allows DNA samples to be taken from everyone even accused of serious crimes, and that's what Cook County is going to start doing.

So the only practical effect of this new law, as far as I can tell, is that the DNA database will grow to include samples from people who were accused of serious crimes but never convicted. In other words, innocent people.

Nonetheless, Professors Akhil Reed Amar and Neal Katyal think King was a great decision because it passes the true test of the Fourth Amendment which is ... well, swabbing the DNA of innocent people for a government database is "not unreasonable":
On one hand, the swabbing itself is not particularly intrusive — no more so than a fingerprint or a lineup. Proper DNA testing can simultaneously exonerate innocent people who have been wrongly accused and find the bad guys — a true win-win situation — and in the process, this amazing new technology can powerfully deter crime. On the other hand, DNA testing without strict safeguards can reveal lots more personal information than a mere fingerprint. (For example, who is the suspect’s actual biological father or child?) If members of racial minorities are more likely to be wrongly arrested, they and their relatives will loom disproportionately large in the government’s DNA database.
Reasonable minds can differ on this. And therein lies the real genius of the Fourth Amendment. Contrary to Justice Scalia’s view, the framers did not answer the DNA question in 1791. Rather, the framers posed the question for us, their posterity. The distinction between criminal evidence-gathering and all sorts of other government programs and purposes is not an all-purpose touchstone or talisman. Rather, we must ponder how intrusive a given search policy is, how discriminatory it might be in application, how well justified and well administered it is, how democratically accountable it is, how it might bear upon human dignity, and so on.
The words of the Fourth Amendment mean exactly what they say. Warrantless searches are unconstitutional only if they are “unreasonable.” That rule, and no other, is the true “heart of the Fourth Amendment.”
I guess we'll just have to trust our eminent legislators to make the right calls on these profound questions of privacy and "human dignity" because, according to the professors, the constitution has nothing to say about them.

1 comment:

  1. I believe I was fingerprinted when I joined the Navy and also when I needed bartending license. I agree it is not very intrusive. However, I disagree that inserting a cotton swab into someone's mouth is either less intrusive or equally instusive to fingerprinting. It is literally inserting something into someone's body. I think the professors are just wrong about that. Also they seem to give a shortshrift to the fact that this database to the disproportinate numbers of racial minorities that will comprise this database.


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