DNA and the Supreme Court

Human DNA

In an interesting voting split, the U.S. Supreme Court this week narrowly upheld a Maryland law allowing police to collect DNA samples when booking individuals accused of serious crimes. The usual swing vote, Justice Anthony Kennedy, wrote the opinion for the majority, which included Justices John Roberts, Stephen Breyer, Clarence Thomas and Samuel Alito.

The dissenters, including Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, were led by Justice Antonin Scalia. Strange bedfellows, indeed. Their argument was that the act of swabbing a suspect’s cheek lining for DNA constitutes illegal search and seizure under the Fourth Amendment definition.

We believe the court made the correct decision and that no constitutional rights were compromised.

Steven R. Shapiro, legal director of the American Civil Liberties Union, said that the ruling “creates a gaping new exception to the Fourth Amendment,” because it goes against the principle that “police cannot search for evidence of a crime . . . without individualized suspicion.”

In our opinion, however, the only thing that is new is the means of identifying and keeping track of an individual. In criminal investigative terms, DNA sampling is merely an evolution of fingerprinting, made possibly by advances in science. The Maryland law even mandates destruction of the sample if the suspect is later found not guilty or the charges are dropped.

Yes, technically, DNA sampling involves “seizure” – a few cells, as opposed to fingerprinting, which simply involves ink residue and doesn’t actually “take” anything. But this is an extremely technical distinction, and we don’t see that is poses a threat to anyone other than those who do not wish to have their identity established. For example, if through DNA testing, you are identified as a prior felon who has committed crimes in multiple jurisdictions, you might be denied bail. Or you might be tied to previous cases. Those who are innocent are in no greater legal jeopardy than they would be without a DNA sample.

There is no question that an extensive DNA database will make crime-solving much more efficient, particularly with respect to rape and other sex crimes. As Justice Kennedy wrote, “By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one.”

Frankly, we see it as only slightly more intrusive than taking a booking photo as a means of identification, with the advantage that a DNA profile is unique to an individual. The only people who should object to it are those who, for whatever reason, don’t wish to be identified or tied to a specific crime.

There are always going to be arguments about the camel’s nose under the tent, and that once the government has our DNA info, they can use it for nefarious purposes, such as identifying preexisting medical conditions and denying health insurance. But there is a slippery slope objection to almost everything, including information collected on driver’s licenses. The point is, we all live in a society and that society has certain compelling interests in solving crime.

With all of the often draconian measures we seem willing to endure to prevent extremely infrequent instances of terrorism, accepting this one act with profound benefits seems to us a small price to pay for the sake of safety and justice.

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