Politics & Policy

Dna: Is The 9th Circuit Wrong?

 

With the recall now concluded, we on the left coast

are now free to return to those more mundane forms

of entertainment that sustained us in the days before

Mr. Schwarzenegger announced his candidacy (fittingly

enough) on The Tonight Show. Fortunately,

we can always find diversion at Disneyland, the San

Diego Zoo, and, with Halloween now approaching, the

haunted house that is the United States Court of Appeals

for the Ninth Circuit.

All but lost in all the recall chatter was the news

that the Ninth Circuit, to almost no one’s surprise,

had let loose another floater. The decision came in

the case of

United States v. Kincade, which

concerned the collection of blood samples from federal

parolees and probationers for inclusion in the Combined

DNA Index System (CODIS), a national DNA database

authorized by Congress in 1994. All 50 states have

also passed legislation requiring DNA collection for

inclusion into CODIS.

In September 1993, Thomas Kincade pled guilty to

the federal crime of armed bank robbery, for which

he was sentenced to 97 months in prison followed by

three years of supervised release. During this supervised

release, he was required to “follow the instructions

of his probation officer” and refrain from committing

“another Federal, state or local crime.”

After his release, Kincade was directed to provide

a blood sample so that his DNA profile could be included

in CODIS. He refused to provide the sample, and this

was the basis for a finding by a district court judge

that he had failed to comply with the conditions of

his supervised release. He remained out of custody

pending the result of his expedited appeal, and on

October 2 a three-judge panel of the Ninth Circuit

handed down its decision.

Judges Stephen Reinhardt and Richard A. Paez accepted

Kincade’s constitutional claim as put forth by his

federal public defenders (Judge Diarmuid F. O’Scannlain,

bless his Irish heart, dissented). The opinion, authored

by Judge Reinhardt, held that “[b]lood extractions

are searches for the purposes of the Fourth Amendment,

and are subject to the normal Fourth Amendment requirements.”

In other words, authorities cannot obtain a blood

sample for DNA testing absent the subject’s consent

or a search warrant based upon probable cause, regardless

of the subject’s status as a former prisoner on supervised

release.

With this decision the majority ignores the distinctions

long recognized by the courts between the full Fourth

Amendment protections cloaking ordinary citizens and

the diminished rights enjoyed by probationers and

parolees. Just as important (and just as typical for

the Ninth Circuit), the decision puts a thumb in the

eye of Congress, whose clear intent in creating CODIS

was to aid in the solving of future crimes and to

deter such as Mr. Kincade from depositing their DNA

where it is not welcome.

The questions raised by the existence of DNA databases

such as CODIS are many, but they should be resolved

by means of informed debate and democratic processes,

not by fiats handed down from our robed masters.

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.

The U.S. Court of Appeals for the Ninth Circuit has

ruled that Thomas Kincade’s constitutional right

to protection from unreasonable searches and seizure

was violated by having to submit a sample of his DNA

to a federal database. Kincade, recently paroled after

a stint in prison for armed robbery, refused to submit

a DNA sample.

It would be easy to assume that the ruling was another

example of Ninth Circuit judicial activism, but that

would be a mistake. On the point in question–whether

people on parole should be required to submit DNA

samples to the federal Combined DNA Index System (the

DNA database called CODIS)–the decision does not

dramatically overreach, although it does, like other

cases of this kind, avoid the thornier issues related

to DNA databases.

Kincade’s protest should serve more broadly as a

warning about a technology that is popular, has expanded

rapidly and, at times, irresponsibly, and whose most

avid supporters have still not crafted adequate privacy

protections or uniform standards for its use. On the

issue of DNA databases, there are many unanswered

questions and potential dangers.

As for the question before the Ninth Circuit, the

law is clear that you can’t conduct “suspicionless”

searches for general law-enforcement purposes. Of

course, the courts have determined that prisoners

and even people on parole and probation have diminished

rights, but as the Ninth Circuit notes in its decision,

that doesn’t mean they have no

rights.

The status of DNA is far from a settled legal question.

The courts haven’t determined whether DNA is fundamentally

different than a fingerprint or a blood sample. The

invasiveness or harm of a DNA search, after all, doesn’t

occur only at the moment when blood is drawn or a

cheek is swabbed; it can happen years later, when

a DNA sample is analyzed to find evidence of a particular

genetic condition such as Alzheimer’s disease or (to

gaze further into the future) perhaps a genetic marker

for aggressiveness or violence to use as a more scientifically

savvy version of the “twinkie defense.”

Most Americans believe that the DNA at issue in these

cases is just like a fingerprint–a harmless source

of identification. But DNA is fundamentally different

from a fingerprint–it is much more revelatory. This

has led to misunderstanding about the benefits and

dangers of DNA and DNA databases. The DNA stored in

these databases is called, incorrectly, “junk”

DNA, because it is supposed to reveal only your unique

genetic identity, not the details of your entire genome.

But junk DNA does not merely serve as a unique identifier;

it can also reveal genetic predispositions for conditions

such as Type I diabetes.

As well, these databases are not institutions tested–and

tempered–by the passage of time. The first conviction

using DNA evidence came in 1987. Within a decade,

every state had established a DNA database–all with

their own rules. But although the analysis of DNA

evidence has proven to be an extraordinarily

useful addition to traditional police work, the verdict

is still out on the effectiveness of DNA databases.

Some legislators are beginning to consider these

problems. The same week the Ninth Circuit’s decision

came down, the Massachusetts legislature postponed

a vote that would have expanded its DNA database to

include every convicted felon in the state.

A go-slow approach is the right idea. In our haste

to make our streets safer, we have not taken appropriate

care to craft an effective but limited tool for law

enforcement. We risk creating a genuine threat to

liberty.

– 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.

 
 

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

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