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
reasoning.
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
Amendment.
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
case.
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 &
Society.
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