On DNA, Supreme Court goes too far

Monday's 5-4 ruling makes Americans more vulnerable to unreasonable searches.

 Taking DNA samples from individuals who have been arrested and running them through a DNA database of unsolved cases can be an effective way of connecting criminals to crimes. That is why the practice is popular with police and the public in states such as California, where voters in 2004 approved the collection of DNA from many criminal suspects. The problem is that it conflicts with the 4th Amendment's prohibition of unreasonable searches and seizures. The Supreme Court on Monday tried to wish that problem away when it upheld a Maryland DNA collection law.

The 5-4 decision affirmed the rape conviction of Alonzo King, from whom a DNA sample was drawn in 2009 after he was arrested for menacing a group of people with a shotgun. When his DNA profile was fed into a database of unsolved crimes, it matched DNA taken from the scene of a rape in 2003. He was charged and ultimately convicted of that crime.
Justice Anthony M. Kennedy's majority opinion disingenuously suggested that swabbing King's cheek for DNA was reasonable given "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody."

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This is an LA Times editorial.  Tom

Too Much Information

Supreme Court 2013: Why collecting DNA from people who are arrested won’t help solve more crimes.

In April 2009, police easily arrested Alonzo J. King, Jr. in Wicomico County, Md. After King pointed a shotgun at a group of people, one of them told the police who did it, and King readily admitted his guilt. He was originally charged with felony assault and ended up pleading guilty to a misdemeanor.

This seemingly insignificant criminal case is now before the Supreme Court, with arguments later this month. That’s because of what the authorities did next. When King was arrested, police took a cotton swab of skin cells from inside his cheek for DNA testing. They did not need his DNA to link him to the shotgun incident. Instead, the police entered King’s DNA profile into both the Maryland DNA database and the FBI’s national database, CODIS. King’s profile, like all those in the database, was then automatically compared every week to evidence from all unsolved crimes. And, in fact, King’s DNA matched DNA from an unsolved sexual assault case, for which he was later convicted and sentenced to life in prison.

If Maryland had required King to submit his DNA once he was convicted, then there would be no Supreme Court challenge. So far courts have all upheld DNA collection from felons, reasoning that convicts forfeit some of the rights of ordinary citizens. Maryland v. King is about something new: More than one-half of the 50 states (including Maryland) and the federal government authorize compulsory collection of DNA from people who have been arrested. But the Supreme Court has never held that if police have probable cause to arrest, they can also search a suspect for evidence of past or future crimes. Maryland‘s justification for this unprecedented expansion of police power? Bigger is better. Add arrestee profiles to the database, and more crimes will be solved.

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Quantifying the Specific Deterrent Effects of DNA Databases

Abstract

Re-offending patterns of a large cohort of offenders released from Florida Department of Corrections custody between 1996 and 2004 were analyzed to quantify the effects of DNA databases on offending patterns. Statistical models constructed to identify the specific deterrent effects of DNA databases distinct from their probative effects yielded mixed results. Small deterrent effects were found and for only some crime types (robbery and burglary). Strong probative effects were found for most crime types. Methods, data, results and implications are discussed in this report.

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This report is from the Urban Institute. Tom

The Hidden Cost of DNA Banking

Diary of a Mad Law Professor

In March 2009, Lily Haskell was arrested while attending an antiwar demonstration. Within hours she was released. Although she was not charged with any crime, her arrest alone was sufficient for her to be required to submit a DNA sample. The ACLU of Northern California filed a lawsuit on her behalf, challenging the constitutionality of the statute mandating police to retrieve and retain DNA from anyone arrested for a felony. As Michael Risher, Haskell's attorney, asserted, the statute subjects innocent Californians to "a lifetime of genetic surveillance" with no judicial oversight, simply because they might have wandered into the field of suspicion of a single police officer.

The collection of DNA has mushroomed in the past five years. California has the third-largest forensic DNA database of any government entity in the world (behind Britain and the US government). All three collect DNA from arrestees regardless of guilt. All three have databases highly skewed by race and class. In Britain 42 percent of black men have had their DNA sampled and stored. Until recently, however, forensic DNA samples were retained only from convicted felons who had committed violent or sexual offenses. With very little oversight or consistency, local rules for collection in criminal cases have expanded haphazardly, often including anyone who is arrested even mistakenly. People may challenge the retention of their DNA and sue to have it expunged, but that process can take years.

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