Mandatory DNA Sampling Threatens Constitutional Liberties
Ken Marrero
Johnia Berry was murdered in 2004. Her parents asked then state Sen. Ron Ramsey to consider working with a national DNA database to assist in a stalled investigation. He introduced a bill mandating collection of DNA samples from those arrested for violent felonies. In addition to Tennessee, 23 states have adopted similar legislation.
This year, Ramsey, now Tennessee's lieutenant governor, wants to expand mandatory collection to persons arrested for any felony via TN SB 257. Supporters contend this collection is no different from the photographing and fingerprinting to which felony arrestees are currently subject.
Detractors appeal to the Fourth and Fifth amendments to the U.S. Constitution and question requiring citizens to surrender a part of "their person" for a criminal case which might "[compel him] ... to be a witness against himself" as well as being deprived of his "property" without "due process."
If charges are dropped or the accused is not convicted, the sample is destroyed. Detractors see this as an acknowledgment of the bill's weakness. If the criteria for sample retention is a conviction, why not delay collection until then?
Additionally, there is significant distrust that samples are safe in the custody of government. Ramsey notes as many as 15 percent of the samples may be subject to destruction. Will these merely be stored until the donor's case is decided or might they be compared against other databases in the meantime for potential matches to other crimes?
Who collects, processes, stores and destroys them? Ramsey is confident the law's criminal penalties for mishandling samples are a sufficient safeguard against misuse. Others remain suspicious of government's record as a watchdog for individual rights.
Such suspicions may be downplayed until one learns of the development of a portable, high-speed DNA scanner and plans by the federal government to hand the technology over to the Transportation Security Administration. Controversies surrounding TSA's use of technology and clashes with the liberties of citizens are well publicized.
Handing over portable, high-speed DNA testing devices to TSA can only lead to an exponential increase in the potential for the disregard of individual liberties. As with backscatter scanners, implementing it in as public and high-profile an arena as our nation's airports will not improve air travel safety. It will, however, serve to further soften the resolve of citizens to resist such unwarranted infiltrations of the state into their daily lives.
Technical innovation is welcomed by the law abiding. But I cannot sanction violating one law while enforcing another. The pursuit of justice must not itself create injustices and securing the rights of the people must remain the highest priority of government.
In a rapidly changing technical environment and with the ability of multiple jurisdictions to pass laws concerning the collection and use of DNA, extreme vigilance must be maintained to ensure the rights and liberties of Americans are not trampled in the process.
A good start would be serious revisions to TN SB 257 and to halt the introduction of portable DNA scanners in our nation's airports until the ethical questions inherent in such technology have been fully asked and answered.
------------
Ken Marrero has blogged at BlueCollarMuse.com and is the founder of the Tennessee ConserVOLiance, a statewide blogger alliance in Tennessee.
Tags: DNA, DNA testing, DNA scanners,law enforcement, Constitution, liberties, Ken Marrero, Blue Collar Muse To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. Thanks!
Posted by Bill Smith at 5:31 PM - Post Link
3 Comments:
I for one thing this is a good idea. think of the missing kids/and others. When a body is found positive identification can be made. Same at crime scenes Much less chance of a wrong conviction. Please explain what is wrong with this. This would be a way of positive identification of lost kidnapped children I can think of at least 200 cases of someone spending years in prison and in a couple of cases executed, who were found to be innocent thru DNA. If one of my grand children were missing and found dead I would hope DNA was available.
Fred, Hi! Before, I comment, did you read the full article. Ken Marrero is a faithful conservative. In the article he identifies the major abuse that the the Government can use DNA sampling for. The following is not my comment but a question, do you believe, ignoring the Constitution for a moment, that the Federal and state Governments should have a complete record on all legal American citizens?
Fred -
As I mention in the post, technical innovation is welcomed by the law abiding. The uses you reference for DNA samples for identifying kids is a great example of the positive potential for the technology.
More than likely, though, any sample for comparison would have been voluntarily provided and not taken from your child by force. Further, if you had stored a DNA sample for the purposes of identification and later found it had been used for something else, you might not be as happy about either the choice you made or the people to whom you entrusted the sample.
The issue is, in criminal cases, how and when is the sample collected and how is it later used.
You are correct that the sample can prove my innocence. But what law enforcement does with a voluntarily given sample and what they do with samples obtained via a warrant are different. If you voluntarily provide a sample, you grant government permission to do with it whatever they want. If they acquire a sample from you via a warrant, they can only use it for the purposes described in the warrant and no more.
This is not an academic argument. Johnia Berry's, killer wasn't caught via traditional law enforcement methods. Nor was he caught because of mandatory DNA collection. He was arrested for an unrelated misdemeanor and volunteered a DNA sample to prove his innocence in that crime. As a voluntary sample it was run through the database and matched to the Berry case.
Many are willing to see that outcome as an example of why we should collect DNA. But basic legal process were not followed. This man was never a suspect in the Berry murder. He gave a sample to benefit himself which then was used against him. At a minimum this raises 5th amendment issues.
With a bit of revising, however, the challenges with the law as proposed can be overcome.
It should read that DNA taken after arrest and before conviction can be collected only after a warrant is issued. It must specify the sample may only be used to compare the suspect's DNA to that found at a specific crime scene. It may not be entered into or compared to existing databases out of curiosity or because it "might" turn up a match.
The default position is that you are innocent until proven guilty. It used to be we felt it better that 100 guilty men go free than 1 innocent man be convicted. We protected the rights of the accused, often to a fault. It's what makes us a nation of laws. This law is a step backwards.
Let's use technology and benefit from it. But let's not lose sight of the fact that claiming a benefit can lead to abuse if we are not vigilant.
Thanks for taking the time to comment ...
Ken
Post a Comment
<< Home