Politics & Policy

Is The 9th Circuit Wrong On Dna?

Previously: Part I and Part



On this much Christine and I are in full agreement:

The use of DNA in law enforcement has advanced beyond

the safeguards currently in place to prevent misuse

of the information stored in government databanks.

Unlike fingerprints and conventional serology, heretofore

the most reliable techniques used in criminal identification,

DNA is something of a biological crystal ball into

a person’s future, offering a reliable forecast of

susceptibility to certain diseases, and even, in some

cases, of likely behavior. As the science progresses

these predictive powers will surely progress accordingly.

One need not be a member of the ACLU–or even sympathetic

to it–to be concerned that such information is in

the hands of the government.

Where Christine and I part company is the degree

to which we would entrust the judiciary to resolve

the questions that arise from the use of DNA identification.

She laments the fact that there is no uniform standard

regulating whose DNA is collected for inclusion into

CODIS, the federal DNA databank. Some states collect

samples from all adult felons, others from only those

convicted of certain violent crimes. Some states include

juvenile offenders. I infer from her argument that

she would look to the courts for guidance in the quest

for a national standard, but I would prefer to leave

the establishment of such a standard to Congress.

The Constitution does not demand uniformity across

the states in most criminal-law matters, and the states

should be allowed to collect DNA samples from whomever

their legislatures choose, provided, of course, constitutional

rights are observed. Those samples collected outside

the bounds of the national standard should not be

included in CODIS, but the states should be free to

catalog them in accordance with their laws. The varied

results across the country will instruct the states

on modifying their policies, including or excluding

classes of offenders as experience dictates.

In my criticism of the Ninth Circuit’s decision in

U.S. v. Kincade,

I did not mean to suggest, as Christine claims, that

the courts have no role in the resolution of the constitutional

questions arising from the use of DNA in law enforcement.

I fully expect to see cases similar to Kincade

filling the dockets for years to come. But when those

cases come before the courts, it is my hope that the

judges hearing them adhere more to the line of jurisprudence

exemplified by Diarmuid O’Scannlain’s Kincade

dissent than that of Stephen Reinhardt’s majority

opinion. Indeed, the Kincade decision

vividly illustrates the competing ideologies on the

proper role of the judiciary. O’Scannlain distills

this clash of ideologies in an article he wrote for

Open Spaces Quarterly, “On

Judicial Activism,” available online here.

An excerpt:

When a judge is swayed by his own

sentiment rather than considerations of deference,

predictability, and uniformity, he fails by definition

to apply the law faithfully. This is the essence of

judicial activism . . . The remedy for a bad law is

to change the law through legislative action, not

to depart from it one way or the other in the courts.

The solution, in short, is democracy–the political

process–and not judicial activism.

Judge O’Scannlain is a shining beacon of reason on

an activist court. I’ll bet he eats his lunch alone

most days.

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.

In yesterday’s exchange, Jack suggested that my support

for the result of the Ninth Circuit’s DNA decision–a

brake on law enforcement’s ability to take DNA samples

as a condition of parole or probation–led me to embrace

a legal decision that, like Roe

v. Wade, is of questionable constitutional


In fact, on both of the questions before the Ninth

Circuit in this case–whether “suspicionless

searches” for general law-enforcement purposes

violate the Fourth Amendment and whether convicted

criminals have none of the rights of law-abiding citizens–the

Kincade decision is a plausible

ruling about a still-unsettled area of law. Even though

the decision was authored by one of the country’s

most liberal federal judges, it nevertheless rests

well within the framework of existing law on the Fourth


As well, Jack’s question about the intrusiveness

of the search depending on how DNA specimens are collected

(blood sample, cheek swabs, or even cross-transfer

of skin cells from a handshake) misses the larger

point: the intrusiveness of a DNA sample does not

depend on how the sample is collected, but on how

much more potentially revelatory it is compared to

older methods of categorization such as fingerprints.

Unlike a fingerprint, DNA does much more than merely

identify you–it can, potentially, tell you–and the

police, and the government, and your employer, and

your insurance company–something about your future.

The U.S. Supreme Court might or might not overturn

this decision; but given its prior rulings in this

area and the novel issues raised by law enforcement’s

use of genetic information, it would be foolhardy

to make a confident prediction of the outcome of this


As for the broader issues at stake, many questions

remain. When I asked Dennis Kenney, a former police

officer and now a criminal-justice professor at John

Jay College in New York, what he thought about DNA

databases, he raised two important points. First,

he noted, in the vast majority of crime scenes that

do not involve violence or sexual assault, criminals

don’t leave DNA behind for collection. This means

that insisting on the collection of DNA from burglars,

car thieves, and other nonviolent felons upon probation

has little law-enforcement use unless those felons

graduate to more violent crimes. For people, like

me, who want these new technologies used more responsibly,

this suggests that limiting the databases to convicted

violent felons might make sense.

Second, as someone who has spent years teaching and

training police officers in former Soviet bloc countries–places

where “rule of law” effectively meant “bribe

the official”–Kenney noted that the difference

between them and us, in terms of how law enforcement

works, is smaller than we might like to think. “Part

of the reason we as a society tend to trust law enforcement,”

Kenney said, “is that we make their job so difficult

in the first place.” By insisting that police

officers’ methods of arrest, investigation, evidence

collection, and analysis, pass constitutional muster,

we reinforce the notion that the law applies to everyone.

Without that sense, it is impossible to maintain order

and public trust in state institutions such as law

enforcement. Given the revelatory power of genetic

information, it is even more important for us to protect

these boundaries.

The broader dangers lie ahead. So far it has proven

popular to argue for the continued expansion of these

DNA databases by claiming greater public-safety benefits.

Eventually, of course, that argument could lead to

claims that all citizens should submit samples to

a universal database. Already, several prominent scientists

and legal theorists have suggested just that–a universal

genetic database that would protect the innocent and

punish the guilty, and other countries such as the

U.K. are seriously considering logging the DNA of

every citizen at birth. Whether or not the Kincade

decision is eventually overturned, one can only hope

that it sparks broader public debate about whether

or not we want to travel down the path toward a universal

database. In my view, we should resist this temptation

at all costs.

– 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 &



Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”


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