Is The 9th Circuit Wrong Again On Dna?, Part Ii

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.

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.