Tuesday, September 6, 2011

New DNA Laws Make Innocent Men Automatic Suspects for Future Crimes

Aaron Tobey, 21, believes that the Transportation Security Administration’s enhanced airport screening procedures violate the Fourth Amendment's prohibition against unreasonable searches and seizures. Last December 30th, before Aaron flew to his grandfather's funeral, he anticipated that he might be randomly selected for enhanced secondary screening at the airport. Before he left for the airport, Aaron took a black marker and wrote words on his chest -- words that he thought would be an apt protest.

Sure enough, Aaron was selected for secondary screening, and true to his plan, he stripped down to his running shorts to reveal the message he had written on his chest. It wasn't a terrorist threat; it wasn't a call for violence of any kind.  It was the Fourth Amendment of the United States Constitution: “The right of the people to be secure … against unreasonable searches and seizures shall not be violated.”

So what did security screeners do when they saw those words? They immediately called the police. Aaron was led away in handcuffs, held for 90 minutes, and charged with disorderly conduct. His personal items – his toothbrush, deodorant, writing utensils, and the t-shirt he had removed – were discarded. The campus police of the college Aaron attended were contacted. An Air Marshal questioned Aaron about his "intentions and goals," as well as his involvement with terrorist organizations.

Instead of treating Aaron like a criminal, they should have read his chest.

Eventually, the disorderly conduct charge was dropped.  Aaron sued airport security screeners in connection with the incident. Last week, in Tobey v. Napolitano, 2011 U.S. Dist. LEXIS 97142 (E.D. Va. August 30, 2011), a Federal Court held that Aaron's suit stated a viable First Amendment claim and allowed it to proceed to trial. Trial is scheduled for January.

The Fourth Amendment

Aaron Tobey’s Fourth Amendment message is likely lost on hysteria-gripped, law-and-order-happy Middle America that sees the Fourth Amendment as little more than a left-wing legal “technicality” that coddles criminals. Only when innocent people are subjected to overzealous police actions do they appreciate that the Fourth Amendment is among the world's great bulwarks against tyranny.

In the United States of America, because of the Fourth Amendment, police aren't supposed to force innocent people to submit to searches and seizures without a warrant, without probable cause, and without individualized suspicion. Police aren’t supposed to “round up the usual suspects,” all due apologies to Captain Renault.

DNA testing is a form of search and seizure that raises Fourth Amendment implications. Courts have upheld DNA testing of prisoners and parolees, but persons who have only been arrested, not convicted, traditionally are afforded privacy rights closer to the rights of an ordinary citizen. Prior to conviction, the old rule was that the only legitimate intrusions upon a person's freedom and privacy are those that were directly relate to the prosecutorial needs of the specific case under investigation.

Katie’s Law: To Protect Women and Children

All that is rapidly changing, and the Fourth Amendment rights of persons merely arrested are being sacrificed in the interest of nabbing more violent criminals and rapists. Politicians are selling the change by saying it’s for the benefit of women and children. The federal government and about half the states now have laws allowing DNA collection from some or all arrestees. "While all states acquire DNA samples for felony convictions, the switch to collecting upon arrest has been gaining momentum and doesn’t seem to be letting up. An increasing number of people who are arrested are having their DNA profile entered into enormous databases accessible by numerous law enforcement agencies across the country." http://singularityhub.com/2011/07/20/arrested-for-a-crime-get-dna-profiled-%E2%80%94-even-more-states-now-collect-samples-at-booking/

In other words, the DNA of presumptively innocent persons is being collected and tested as part of a high tech fishing expedition where law enforcement hopes to “get lucky" and link the arrestee to some completely unrelated crime anywhere in the United States, and including crimes that haven't even been committed yet. For example, a man arrested, not convicted, for a rape he didn’t commit might find his DNA being examined for every unresolved rape and violent crime that occurs thereafter. He will be an automatic suspect and an unwitting, and unwilling, participant in DNA police line ups every time the government wants to “round up the usual suspects.”

The moving force behind  these efforts is a proposed Federal Law known as Katie's Law, or more formally, the Katie Sepich Enhanced DNA Collection Act of 2010. “Katies Law" was named after a young woman named Katie Sepich who, as a 22-year-old graduate student at New Mexico State University, died at the hands of a rapist. DNA pinpointed her killer three years later, after his conviction in a burglary. At the time, New Mexico did not collect DNA samples upon arrest.

Katie’s Law would provide funding to states to implement enhanced DNA collection processes for felony arrests. The collected samples are included in the FBI’s DNA database known as CODIS (Combined DNA Index System). Under the proposed law, those states that collect DNA from individuals arrested for certain serious crimes (murder, voluntary manslaughter, serious sexual offenses or serious kidnapping offenses), and compare the samples to those in the CODIS database at least once, receive a 5% bonus on certain federal crime prevention grants. The incentives are based on the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) that states receive. For reference, in 2009, California received about $135 million in Byrne JAG grants; New York received $67 million. A complete list for 2009 is here: http://www.ojp.usdoj.gov/BJA/funding/09RecoveryJAGStateAwards.pdf

The Web site dnasaves.org proclaims: “By passing state legislation that enables law enforcement to collect DNA from felony arrestees, at the same time as fingerprints, your state can catch criminals sooner.”

As noted above, about half of all states have laws similar to Katie’s Law. It is being sold as a protection for women and children. "Ninety percent of the victims this law will support are women," proclaimed Denver District Attorney Mitch Morrissey last year. "They're violent crimes that involve rape and homicide. The last ten percent are kids. This is a science that will help us solve crimes by male predators against women and children." (The assertion is both bizarre and sexist, given that far more innocent adult males are assaulted each year than women.)

But some politicians are sufficiently astute to realize that the interests of innocent men don’t need to be sacrificed to support women, and that it’s not a zero sum game. “Sen. Patrick Leahy, a Vermont Democrat who is chairman of the judiciary committee, believes federal DNA testing laws have gone too far. Although he strongly supports the Violence Against Women Act, he said he always had reservations about its mandate that DNA be collected from anyone arrested or detained by federal authorities. ‘This change adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent,’ Leahy said . . . when he tried, unsuccessfully, to discourage the Justice Department from implementing the policy.” http://www.geneticsandsociety.org/article.php?id=4665

Kellie Greene, a Florida rape victim, saw through the politicized effort to tramp on the rights of innocent men. She blames the rush to test DNA on “legislators acting like they're tough on crime." http://www.geneticsandsociety.org/article.php?id=4665

California Court: “Not So Fast”

The trend has hit a speed bump. A voter-approved California law requiring police to collect DNA samples from anyone arrested for a felony recently was held by a California state appeals court to violate the constitutional privacy rights of people who have not been charged with or convicted of a crime.

The rejected law expanded previous statutes that authorized law enforcement officials to take DNA from convicts and suspects with felony records. The initiative was approved by a law-and-order happy 62 percent of the voters in 2004 and became effective in 2009. It required anyone who was even arrested on suspicion of a felony to be swabbed on an inner cheek for genetic material, which would then be forwarded to a database accessible to state and local police, and by the FBI.

Not so fast, said the First District Court of Appeal in San Francisco. DNA contains "an extraordinary amount of private personal information" not available from fingerprints, the court noted. Unlike fingerprints, which are primarily used to identify suspects, DNA evidence is collected in hopes of linking arrestees to other crimes, or to crimes they might commit in the future, the court correctly explained. These searches are conducted "without individualized suspicion" of guilt for those crimes, and often before a judge has decided whether police even had grounds for the arrest in the first place, the court said.

The California court ruling was aberrational because it ran contrary to the trend that started in Virginia just eight years ago and that has been expanding swiftly under the radar and out of the headlines of mainstream newspapers.

So, What’s Wrong With Catching More Criminals?

Supporters point to the fact that collecting DNA of arrestees is a powerful police resource in unsolved "cold cases," and the more DNA on file, the more likely criminals will be caught.

So what's the problem?

Well, for one thing, there is the opportunity for enormous mischief. It is "much easier . . . to plant DNA than fingerprints, [so] the potential for misconduct is troubling." http://singularityhub.com/2011/07/20/arrested-for-a-crime-get-dna-profiled-%E2%80%94-even-more-states-now-collect-samples-at-booking/

The Duke University Institute for Genome Sciences & Policy has explained: “With an increase in CODIS profiles, a higher percentage of false hits with DNA evidence is possible.” http://www.genome.duke.edu/issues/katies-bill/issue-brief/

In addition, and most important, there are enormous privacy concerns – privacy concerns that are not being addressed in the face of politicized fear mongering. The Massachusetts office of the American Civil Liberties Union correctly says that DNA evidence is much more invasive than fingerprints, revealing confidential medical information on not only a suspect, but his or her whole family. “Many of these people will never be convicted of a crime,” said Chris Ott, director of communications for the state's ACLU office. “You're not only collecting information on the person arrested, but on all their blood relatives.” http://www.wickedlocal.com/roslindale/features/x2094011525/DA-Conley-ACLU-at-odds-over-DNA-law#axzz1UJF8HpNI

And, of course, this raises a significant concern for men wrongly arrested, a concern that hardly anyone is addressing. Their DNA would now part of the system only because of the happenstance of the wrongful arrest. The government would have evidence it never should have acquired. Every man wrongly arrested for rape or other serious crime would become an automatic suspect, and is forced to be part of a high tech DNA police line-up for all future crimes. It’s worse than having the police come rummaging through your house looking for anything they might use against you, now and in the future. Yet state after state is allowing it.

And if innocent men can have their DNA taken and included in a federal database, why not force everyone, or at least all men and boys, to do the same? And seriously, how long will it be before someone suggests that with a straight face? As one ACLU official facetiously put it: "We could solve even more crimes if we put everybody's DNA in the database."


CODIS, the ACLU said, should not become “a system that gathers personal information about innocent people just in case they someday commit a crime. Any DNA records included in the federal CODIS systems should pertain to people who have been convicted of serious violent crimes.” http://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/aclu-letter-senators-judiciary-com  The ACLU has also said this: “At its core, such an effort violates one of the fundamental principles of American law, which is that one is presumed innocent until proven guilty. Housing a person’s DNA in a criminal database renders that person an automatic suspect for any future crime – without warrant, probable cause or individualized suspicion.” http://www.aclu.org/files/assets/ACLU_Statement_for_Hearing_on_DNA_Evidence_and_Rape_Cases.pdf

Importantly, “[t]here is ample and solid evidence that collecting DNA at the point of arrest will do little if anything to make us safer. In Britain, where the national DNA database has in recent years been flooded with hundreds of thousands of arrestees, including children as young as 10, this expansion in the number of DNA samples in the database has not led to an increase in the number of crimes solved. This is because individuals who have never been convicted of a crime are unlikely to be involved in a violent crime where DNA evidence is available.” Id.

How should DNA properly be used? “Law enforcement has always had ample authority to collect DNA from an individual in cases where DNA evidence is relevant in establishing whether that individual may have been involved in the crime. That process involves obtaining a court-issued warrant supported by probable cause. DNA samples collected under these circumstances may be tested and compared with the biological evidence collected from the crime scene in question. This warrant authority strikes an appropriate balance between meeting public safety needs while ensuring that a person is not subjected to potentially lifelong genetic surveillance unless or until he or she is first convicted of a crime.”  Id.

And finally, the ACLU warned that expansion of DNA databases to include arrestees “perpetuates the racial biases that are systemic in our criminal justice system” and “would inevitably result in an increasingly skewed criminal database in which minority populations are disproportionately overrepresented.” Id.

Duke Institute for Genome Sciences & Policy

The Duke University Institute for Genome Sciences & Policy echoes the caution about the usefulness of including the DNA of persons only arrested in the nationwide database: “While the CODIS database has been a valuable tool for solving crimes, the usefulness of the expanded DNA database for preventing crimes is unknown and poorly documented. Law enforcement agencies in the United Kingdom have collected DNA samples from arrestees since 2004, but have produced little evidence as to the system’s effectiveness in attaining felony convictions. The FBI also does not keep statistics on the number of matches that lead to convictions.” http://www.genome.duke.edu/issues/katies-bill/issue-brief/

The Absence of Serious Debate

Iconoclast and auteur Michael Moore correctly noted in Bowling for Columbine: "The media, the corporations, the politicians . . . have all done such a good job of scaring the American public, it's come to the point where they don't need to give any reason at all."

In our literally hysterical times, the public discourse on crime has devolved into a monologue, and the only voice that matters is the actual, the would-be, or the putative victim's.  Counseling about the need to insure that the innocent aren't punished with the guilty is greeted with mouth frothing, profane rebukes. Anyone who would utter such a sentiment must, of course, be in favor of rape.
Wendy Murphy once took the ACLU to task for filing a lawsuit to force the return of DNA samples taken from more than 100 men in connection with the murder of Cape Cod socialite Christa Worthington. The ACLU’s position was that it was an unconstitutional invasion of privacy for the government to maintain custody of the innocent men’s DNA. Ms. Murphy asked: “How come the ACLU doesn’t care about the privacy rights of innocent rape victims?” See here.

Put aside Murphy's absurd-on-its-face suggestion that the ACLU doesn't care about rape victims, does it frighten anyone else that a nationally known commentator on sex crimes -- a woman who teaches in an accredited law school, no less -- blithely trivializes the rights of innocent people?
Is it not possible to be sensitive to the rights and interests of rape victims without, at the same time, tramping on the rights of innocent men and boys? Must it always be a zero sum game where crime victims can't be properly supported without stripping rights from the presumptively innocent?  Balancing the interests of (1) punishing the guilty and (2) protecting the rights of the innocent, is exceedingly difficult under the best of circumstances, and it most assuredly can’t be accomplished when the only people who make themselves heard trivialize either interest.

Dumping the DNA of innocent men into CODIS, without any more discussion, is not a solution that should appeal to serious-minded observers. First, let’s see the evidence, beyond the anecdotal, about what this will achieve. Second, let’s figure a way that the innocent aren’t unwitting and unwilling participants in high tech DNA police line-ups for every future unresolved crime unrelated to the one for which they were arrested, without any temporal limitation.

Is there a middle course?  For example, a course that would allow DNA to be included in CODIS only if charges are lodged, and with automatic (and by this we mean truly automatic, not just automatic in theory) expungement in the event charges are dropped for any reason? And is it naive to suggest that an automatic expungement protocol could ever work?

This is an issue that deserves a very serious public debate. Sadly, our era just doesn't seem to be up to it. One thing is for certain: a free people are ill-served by politicians who pander to lock-the-doors-hide-the-daughters hysteria that sweeps over the rights of the presumptively innocent like a high-speed train.