New questions raised about mandatory DNA swabbing by police in California

by jeeg 11. December 2013 22:00

Lily Haskell was arrested while attending a peace rally in San Francisco in March 2009.

Police took her fingerprints and swabbed the inside of her cheek to collect a sample of Haskell’s DNA, which was entered into a state database and shared with a federal database run by the Federal Bureau of Investigation.

She was never charged with a crime and was soon free to go. But her most private, biological data will remain with the state indefinitely. All 50 states and the federal government take samples of DNA from anyone convicted of a felony.

But in recent years, many states have passed laws allowing police to take DNA samples at arrest — before a suspect is charged with a crime, much less found guilty — and enter them into state-level databases along with the national DNA database run by the FBI.
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Though the state-level laws vary in terms of how long the DNA evidence can be kept — some, like California, allow it to be kept permanently, while other states require the information to be deleted if a suspect is not charged or found innocent — they all raise concerns about privacy and due process, since an individual’s DNA can be taken without consent or judicial approval.

“Now my genetic information is stored indefinitely in a government database, simply because I was exercising my right to speak out,” Haskell, now a plaintiff in a legal challenge to the California law, said in a statement.

Since DNA is a unique identifier that does not change from birth until death, the ability to take, store and use DNA samples as part of an investigation has revolutionized police work.

Law enforcement groups across the nation see DNA collection as a vital part of their obligation to catch criminals and prevent future crimes.

“Victims and taxpayers will be spared the cost of crimes that are deterred and prevented. The work of law enforcement will be more efficient and more accurate by focusing on the right suspect sooner,” Dave Freed, president of the Pennsylvania District Attorney’s Association, told the Pennsylvania House Judiciary Committee during a recent hearing.

The effectiveness of such massive DNA databases is rarely called into question, but perhaps it should be. In the three years after Maryland passed a law allowing the collection of DNA at arrest, more than 33,000 samples were taken by police.

Of those, only 13 led to a conviction. In other words, 99.96 percent of arrested Marylanders who had their most personal biological information taken from them and entered into a government computer, without their consent, were never convicted of any crime.

Similar data is unavailable from most other states where DNA swabs are taken at arrest because Maryland has one of the nation’s strictest police transparency laws, but there is little reason to think the numbers would be much different.

In California, nearly 100,000 people are arrested each year for being suspected of committing a felony. More than half will be released without being charged with a crime, like Lily Haskell. But the state gets to keep their DNA on file anyway.

“The result of this new program is that thousands of innocent Californians will be subject to a lifetime of genetic surveillance because a single police officer suspected them of a crime,” said Michael Risher, staff attorney at the American Civil Liberties Union of Northern California.

The 9th U.S. Circuit Court of Appeals will hear the challenge to California’s DNA swabbing law in December.

That challenge comes on the heels of the U.S. Supreme Court’s ruling in Maryland v. King earlier this year, in which the high court upheld a Maryland law allowing DNA collection at arrest.

“Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote for the 5-4 majority.

Justice Antonin Scalia, who authored the dissenting opinion, slammed the majority’s logic. Comparing DNA samples to the classic act of taking a suspect’s fingerprints “taxes the credulity of the credulous” and only makes sense to those who do not understand how police use a DNA database, he said.

The ACLU said it may have more success in challenging the California law, which is broader than the Maryland law and does not include a provision to erase the DNA records after a suspect is cleared of any wrongdoing.

Even if the courts continue to uphold the concept of DNA collection at arrest, there are questions about the effectiveness of such information, to say nothing of the potential for abuse by law enforcement agencies that already have millions of samples in a shared database.

A study by the RAND Corp. of DNA collection of arrestees in England found the practice was generally a waste of time and resources, since crime-scene DNA samples were more often related to positive matches than samples from suspects.

“This suggests that ‘widening the net,’ which research indicates has only a minimal deterrent effect, might be less cost-effective than allocating more effort to samples from crime scenes,” the authors of the report wrote in 2010.

In Pennsylvania, the state police estimate expanding DNA collections could cost up to $7 million annually as labs are swamped with new requests.

California’s DNA database, which is the third largest in the world, has experienced backlogs that last for months, meaning a tool supposedly making investigations move more quickly can end up slowing things down while police wait for labs to catch up.

Groups like the ACLU also raise concerns about how a massive database of Americans’ biological information, once it is established, could be used for other purposes.

They point to how the Social Security database has been expanded from its initial design to become a de facto national identification numbering system that follows a person from birth until death.

Only time will tell what sort of uses bureaucrats of the future will find for a national DNA database — Images from the film “Gattaca” and other sci-fi fare spring to mind.

In the meantime, the expansion of laws allowing DNA collection at arrest is seemingly bipartisan, a result of politicians who want to appear “tough on crime” regardless of their political persuasion.

Wisconsin and Virginia recently joined blue states like California and Maryland and solidly red states like Texas and Alabama in allowing DNA samples at arrest.

In Wisconsin, Republican Gov. Scott Walker pushed for a change to a state law that previously allowed DNA samples to be taken only from convicts.

Wisconsin Attorney General J.B. Van Hollen trotted out the example of Christopher R. Golden, of Madison, who was arrested in 2010 on sexual assault charges.

After his conviction, Golden’s DNA was taken and turned up as a match for an unsolved sexual assault from 2000.

If the state had been allowed to take Golden’s DNA in 1994, when he was arrested and charged with felony child abuse and ultimately convicted of a misdemeanor offense, police would have been able to match him to the 2000 crime and prevent him from striking again in 2010, Van Hollan argued.

Taking DNA from arrestees “increases the likelihood that law enforcement can identify perpetrators of previously unsolved crimes and apprehend them before they commit future crimes,” said Van Hollan.

It also helps law enforcement accurately identify whom they have in custody and can be used to exonerate those who are arrested or charged wrongly, he said.

Eric Boehm, Washington Examiner


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