In yesterday's exchange Christine wrote, re: the
Ninth Circuit's decision in U.S. v. Kincade,
"It would be easy to assume that the ruling was
another example of Ninth Circuit judicial activism,
but that would be a mistake." Given that the
majority opinion was written by the famously left-leaning
Stephen Reinhardt, and joined by the like-minded Richard
A. Paez, such an assumption does indeed leap quickly
to mind. But it is an assumption manifestly shared
by Judge Diarmuid F. O'Scannlain in his dissent, and
one very likely to be shared by a majority of the
Supreme Court if the case is brought before it. In
ruling as it has, the Kincade majority overturns
the holding of a different three-judge panel of the
Ninth Circuit, who in Rise v. Oregon
ruled that an Oregon statute requiring convicted murderers
and sex offenders to submit blood samples for inclusion
in a DNA database did not violate the Fourth Amendment.
To reach the conclusion it has, the Kincade
majority relies on two Supreme Court cases, Indianapolis
v. Edmond and Ferguson v. City of
Charleston, both of which, it claims, undermine
the Ninth Circuit's decision in Rise. But,
writes Judge O'Scannlain, "even if one concedes
the contention . . . that Edmond and Ferguson
cast doubt on our holding in Rise, it is clear
that they have not done so to such a degree as to
allow one three-judge panel of this court to overrule
the holding of another three-judge panel."
By embracing the Kincade decision as she has,
Christine falls into the trap most famously exemplified
by Roe v. Wade, which is to say that
if one welcomes a given outcome he must therefore
endorse the avenue by which it is reached. Even some
abortion advocates concede that Roe is bad
law, in that it removes from political discourse a
matter on which the Framers were silent. I fear that
Christine, who has written persuasively here on NRO
and elsewhere on the threats to liberty inherent in
DNA databanks, welcomes the Kincade decision
not for the soundness of its legal underpinnings,
but for its success, however momentary, in slowing
what she sees as a DNA juggernaut outpacing all rational
restraints.
The legal question is a simple one: Does a convicted
criminal, one on whom no individualized suspicion
for a new crime has fallen, have the right to refuse
a lawfully ordered search? In his Kincade dissent,
Judge O'Scannlain writes that the question remains
open. But even if one accepts the view that the collection
of a blood sample requires at least some level of
articulable suspicion, what then to make of those
jurisdictions in which DNA samples are collected by
means of inner-cheek swabs? Surely this technique
is less intrusive than a blood sample. And less intrusive
still are methods of collecting DNA from articles
touched or worn by the person from whom the sample
is sought. Should these methods be governed by the
same Fourth Amendment considerations imposed on blood
samples?
Christine argues for a "go-slow approach"
in the advance of DNA databanks, and in this there
is nothing to dispute. But she goes too far in commending
the Massachusetts legislature, which has postponed
action that would have expanded its DNA database to
include all convicted felons. The people of Massachusetts
can legislate as they wish, but there is ample reason
to question the judgment of a state that has sent
Ted Kennedy to the Senate for more than 40 years.
— Jack Dunphy is an officer
in the Los Angeles Police Department. "Jack Dunphy"
is the author's nom de cyber. The opinions expressed
are his own and almost certainly do not reflect those
of the LAPD management.
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On most issues regarding law enforcement, I am an
unrepentant Dunphyite. But on the matter of the Ninth
Circuit's recent decision about compulsory DNA sampling
of criminals on parole, our otherwise reliable sage
has allowed his contempt for the Ninth Circuit to
cloud his judgment about the issue.
First, although Dunphy is correct that the question
of compulsory DNA sampling is a matter for legislators — both
in the states and in Congress — to decide, he ignores
the broader challenge this fact poses. Currently,
there are no uniform standards or regulations for
state DNA databases — some states include only violent
felons, others include all convicted felons, and still
others even log the DNA of juvenile offenders. The
federal database, CODIS, reflects this fact and is
a patchwork of these different approaches.
What both the state and federal DNA databases lack
are uniform protections against abuses of sensitive
genetic information. At the very least, state legislators
and members of Congress should consider, as part of
this debate, some guidelines (endorsed by civil-liberties
advocates) which would limit the potential for abuse
of these databases. First, we should insist on the
destruction of the original samples taken to avoid
future misuse of genetic information; there is no
reason for law enforcement to maintain vaults of cheek
swabs and blood samples — all of which contain revelatory
information beyond merely unique genetic identification,
even for convicted felons. Second, the information
stored in the federal CODIS database should be limited
to convicted violent felons only. And third, these
databases should be made available to individuals,
especially those who did not have access to DNA testing
when they were convicted, for purposes of exoneration.
Law enforcement should encourage these reforms; after
all, it would take only one or two high-profile episodes
of abuse for the public to turn on this technology — and
the law-enforcement authorities that use it.
Second, and contrary to Dunphy's suggestion, there
is indeed a constitutional question at stake here
that is squarely within the purview of "our robed
masters," as Dunphy refers to the Ninth Circuit.
The way we eventually answer this question has implications
for law-abiding citizens as well as convicted felons.
This particular constitutional question, like all
unsettled questions related to public policy, has
no immediately obvious answer. But there is certainly
a plausible case to be made that these databases do
violate the Fourth Amendment as the U.S. Supreme Court
has construed it. It's difficult to make confident
predictions about what the Supreme Court would say
in this particular case, but to suggest that the courts
have no role at all willfully ignores the broader
issues at stake here. Ultimately, we need to examine
not only the practical challenges posed by existing
DNA databases, but also to ask if we want to live
in a society where we've created the architecture
for genetic surveillance so vast that, eventually,
we might all be subject to its relentless scrutiny.
— Christine Rosen is a
fellow at the Ethics
& Public Policy Center. She
wrote about DNA databases in the Spring 2003 issue
of The New Atlantis: A Journal of Technology &
Society.
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