Deterrent? Not Actually

all your DNA are belong to us

The story of the role of DNA in the criminal justice system is quite interesting. Heralded as the ultimate in crime solving, DNA has slowly infiltrated the collective consciousness of the entire nation and infected our lawyers, judges and jurors. It’s a double-edged sword, to be sure: DNA can accurately (or maybe not) identify an individual who leaves behind some trace materials at or in a crime scene, thereby implicating or exculpating a suspect. Fueled by DNA based shows like CSI, jurors became more demanding and mistakenly over reliant on the science, producing the “CSI effect”, DNA, on the other hand, has drawbacks that defense lawyers try to highlight – which I’m not sure have sunk in yet – like the fact that you it can’t tell you when it was deposited. DNA is most famous for high-profile exonerations of people already convicted of crimes and serving lengthy prison sentences.

But DNA is much more than that. As the science grows, the uses and implications of the genetic markers grows by leaps and bounds (see here and for the future, see here).

Which is why DNA, and the collection of DNA, is so attractive to law enforcement agencies. Unfortunately, as is often the case, the evolution of science and technology and the desired application of these new uses conflicts to some degree with the core protections of the Constitution.

Just yesterday, a 3 judge panel of the 9th Circuit heard an appeal in a lawsuit filed by the ACLU challenging the legality of California’s DNA-collection-upon-arrest law. That’s essentially all there is to the law: collect the DNA of everyone ever arrested. (Connecticut tried to pass a similar bill two years ago and it was ultimately rejected.) Under some circumstances, the DNA may never be deleted from their database:

Under the law, [an arrestee] must wait at least three years from the time of her arrest before seeking to remove her genetic information from the database, a request that either a judge or a prosecutor can veto.

Putting aside the capacity for intrusion into one’s privacy – law enforcement having access to you and your history, your health risk, who you’re related to (and again the issue isn’t that they would, but that they could) – and the racial implications, the possession of such power by the state is repugnant to many of us for the simple reason that it seems to stand at such odds with that basic of principles: the presumption of innocence. If you are to be presumed innocent up until the time of a conviction, then why must the State get to intrude upon your person in such a permanent manner? What is the need to collect your genetic markers, so you may be tagged forever as a potential criminal, when up to that point, you’re guilty of nothing?

Asked by Judge William Fletcher why the state keeps the DNA of people who were not convicted, Powell said those who know their samples are in the database are “less likely to commit future crimes.”

Indeed. Criminals – hard and soft – are kept awake at night by the idea that their DNA might be left behind at the scene, and thus are frightened into living the straight life. It might happen on CSI, but not in real life. In real life, DNA testing takes months due to backlogs; in a lot of cases the DNA isn’t even tested before a case is resolved.

The use of the deterrent argument to justify the preservation of the DNA of innocent people is simply a shield to hide behind. I’m surprised they didn’t tie it in to 9/11 and terrorism somehow. Is it too late to invoke Godwin’s Law? But sadly, these days, anything goes in the name of “safety”.

And it’s quite ironic that the State in this case is all for the preservation of DNA and testing and matching of that DNA to find the suspect that they are otherwise unable to do so, when they routinely stonewall and object to requests to test DNA by convicted inmates seeking to prove their innocence.

Courts have long held that convicted felons have fewer rights than the rest of us, that the fact of conviction necessarily means that they’ve given up some rights. The right to privacy and the right not to be suspected for the rest of their lives are two of them. So it’s easier to justify the taking of the DNA of a felon: once a criminal, always a criminal, so let’s keep tabs on him.

Taking the DNA of people merely arrested seems to extend that terrible generalization to all who are unlucky enough to be arrested, thus furthering the presumption of guilt.

In the end, the equation always seems to include two mutually exclusive concepts: more freedom or more safety?