Wednesday, February 13, 2013

Supreme Court to decide constitutionality of DNA laws that make even innocent people automatic suspects for future crimes

Aaron Tobey (see below)
This is a critically important issue that every reader of this blog needs to know about.

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, or without individualized suspicion. Police aren’t supposed to “round up the usual suspects,” all due apologies to Captain Renault.

DNA testing is the ultimate search and seizure method. 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 ordinary citizens. 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.

Round up the Usual Suspects

All that is rapidly changing. In state after state, the Fourth Amendment rights of persons merely arrested are being sacrificed in the interest of nabbing more violent criminals. Politicians sell the change by saying it’s for the benefit of women and children. The federal government and more than half the states now have laws allowing DNA collection from some or all arrestees. The DNA profiles of even innocent people are entered into enormous databases accessible by numerous law enforcement agencies across the country.

Later this month, the Supreme Court will hear oral argument in a case where Maryland collected DNA evidence of a man who was arrested but not convicted. It could be a very important precedent for the wrongly accused.

The Problem

What's the problem with collecting DNA evidence from persons merely arrested but not convicted? The problem is that it's a legal high-tech fishing expedition, unprecedented in our history, much worse than allowing the police to go rummaging through your house without your permission or a warrant looking for anything they might use against you, both now and in the future. Law enforcement is using the DNA profiles of presumptively innocent persons, arrested but not convicted, in the hopes of “getting lucky" and linking the arrestee to some crime completely unrelated to the one it is supposed to be investigating -- crimes committed anywhere in the United States, and even crimes that haven't been committed yet. An innocent man or boy wrongly arrested for a rape he didn’t commit, who is never convicted, will find his DNA being examined for every unresolved rape and violent crime that occurs thereafter, anywhere in the United States, until the day he dies. He will be an automatic suspect and an unwitting, and unwilling, participant in high-tech DNA police line ups every time the government wants to “round up the usual suspects.”  Some states even use DNA databases to find not only people in the database, but also their family members.

Make no mistake, states have a financial interest in doing this. 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 FBI's DNA database CODIS at least once, can receive Federal bonus money. In fact, some states receive millions of dollars in Federal grants each year.

Some Sane and Rational Voices

Some voices crying in the wilderness recognize the threats to the innocent. “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.” 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." The ACLU has said that CODIS 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.” 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.”

DNA Collection Hurts Criminal Investigations

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.

Not so fast, say Professors Brandon Garrett and Erin Murphy. They've blown the lid off that argument. It is a myth that it helps solve more crimes. In fact, it is hurting crime investigations: "The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes." And: "taking DNA from a lot of arrestees slows the testing in active criminal investigations."

Threats to the Wrongly Accused

In addition, Garrett and Murphy say, DNA collection from people merely arrested, not convicted, can hurt innocent people:
Putting DNA from arrestees into databanks also exposes more innocent people to the risk of false accusation or conviction. Interpretation of DNA evidence from known offenders is straightforward, but crime scene samples often require subjective judgments that may lead to errors. What is more, cross-contamination and accidental sample switches have occurred in labs across the country. In one case in Nevada, a man spent four years in jail because an analyst accidentally switched his sample. In three more cases, erroneous DNA testing led to wrongful convictions that were overturned by subsequent DNA tests. A 2009 National Academy of Science report criticized the current lack of quality control in the forensic testing system. But improvement seems less likely if crime labs are inundated with DNA from arrestees. The FBI has also opposed confidential access for researchers who could independently assess government assertions about the accuracy of DNA databases.
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.”

In addition, there is the opportunity not just for more error but for enormous mischief. It is "much easier . . . to plant DNA than fingerprints, [so] the potential for misconduct is troubling."

Racial Disparities

Professors Garrett and Murphy also point out the racial disparities created by collected of DNA from arrestees:
In addition, arrestee testing exacerbates the racial disparities in DNA databases. Because African-Americans and Hispanics make up a disproportionate share of convicts, they are overrepresented in databases. Racial disparities in arrest rates, particularly for minor crimes like drug possession, can be even starker. Allowing states to bank DNA of arrestees will mean including disproportionate amounts of genetic information from African-Americans and Hispanics as compared to other groups.
Even if a state allows you to have your DNA expunged if your arrest was mistaken, Professors Garrett and Murphy explain: ". . . in some states it is up to you to petition the court, and needless to say there is no right to counsel or easy online way to carry out such a request."

In the Public Discourse, No Room for Concern for Innocents

In our literally hysterical law-and-order 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. Even whispering about the need to insure that the innocent aren't punished with the guilty is greeted with mouth frothing, profane rebukes, and accusations from snarky bloggers that we are trying to help rapists beat the rap.

If innocent men and boys who are wrongly arrested for rapes they didn't commit 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 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."

Aaron Tobey

We conclude with the story of Aaron Tobey. Aaron was a 21-year-old college student in December 2010 who was set to fly to his grandfather's funeral. Aaron believed that the Transportation Security Administration’s enhanced airport screening procedures violate the Fourth Amendment's prohibition against unreasonable searches and seizures and wanted to protest it. He suspected that he might be randomly selected for enhanced secondary screening at the airport, so before he left for the airport, he took a black marker and wrote words on his chest that he thought would be an apt protest. Sure enough, Aaron was selected for secondary screening, so 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; it didn't advocate overthrowing the government.

It was the Fourth Amendment of the United States Constitution. Aaron had written: “The right of the people to be secure … against unreasonable searches and seizures shall not be violated.”

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

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