On February 26 the Supreme Court will hear arguments to determine the constitutionality of Maryland’s DNA collection law. The DNA Collection Act (2009) allows law enforcement to obtain and analyze genetic information from individuals without a search warrant who have not been convicted of any crime and have merely been arrested.
Strongly supported by the Governor, the Attorney General and prosecutors and law enforcement across the state, the case has troubling implications if upheld by the Supreme Court. In short, Maryland’s DNA Collection Act is a case study in how our fear of crime facilitates the extraordinary expansion of law enforcement power at the expense of constitutional rights and how race continues to be inextricably woven into the fabric of American criminal justice.
Some things to consider:
The law fundamentally upends a presumption of innocence, while it “fails to contribute substantially to the states’ efforts to solve more crime.” The ACLU, which is challenging a similar DNA collection law in California, makes this point most clearly in their argument against the Maryland law:
[E]ven if the government’s general interest in solving crimes were adequate cause for an exception to the warrant requirement, taking DNA from people who are innocent before the law does not substantially serve this purpose. Although neither the federal government nor the states have been willing to release the data that would be needed to conduct a definitive analysis of databank efficacy, research from the RAND Corporation and the United Kingdom shows it is primarily the size of the crime-scene database that controls the efficacy of DNA databanks, so long as the known-offender database is populated with a sufficient number of persons who are actually involved in criminal activity. Thus, taking DNA from mere arrestees … fails to contribute substantially to the states’ efforts to solve more crimes.
The Rand Corporation research mentioned, which looked at forensic DNA collection in the United Kingdom and the United States, says it like this:
In assessing how DNA analysis is used to aid investigations in the U.S. system, we found that database matches are more strongly related to the number of crime-scene samples than to the number of offender profiles in the database. This suggests that “widening the net,” which research indicates has only a minimal deterrent effect, might be less cost-effective than allocating more effort to samples from crime scenes.
As the Electronic Frontier Foundation points out in their argument against Maryland’s law, even if you are not convicted of anything and released, your DNA stays in the police database. This means that your DNA is used more broadly for investigation and not mere identification as the the state claims:
Maryland officials claim that DNA is necessary for definitive identification, but they do not use the sample to “identify” the arrestee. Instead, they use the sample for other investigatory purposes – retaining and repeatedly accessing the wealth of personal information disclosed by an individual’s genetic material despite lacking individualized suspicion connecting the arrestee to another crime. This violates the Fourth Amendment. …
“Let’s say you were picked up by police at a political protest and arrested, but then released and never convicted of a crime. Under these laws, your genetic material is held in a law enforcement database, often indefinitely,” said EFF Senior Staff Attorney Lee Tien. “This is an unconstitutional search and seizure.”
Both the Center For Genetics and Society (CGS) and the Council for Responsible Genetics (CRG) make the compelling case that law enforcement’s “collection and databank of genetic information will disproportionately affect minorities” and have the potential to revive biological arguments about racial superiority and inferiority.
CRG makes the point directly to the Maryland law:
Maryland’s DNA Collection Act is representative of a growing trend in which government collects DNA samples not just from those convicted of crimes, but from those who are merely arrested. Because only a fraction of those who are arrested are ultimately charged and convicted, however, this practice necessarily will permit the government to collect DNA from innocent people.
That the government would obtain DNA from any innocent person is disturbing, but the practice visits a special and severe harm upon minorities. Members of minority groups are arrested in disproportionate numbers, and a disproportionate percentage of innocent arrestees are therefore likely to be minorities. This brief seeks to bring to the Court’s attention the wealth of social science evidence documenting the harms to minorities from this practice. In particular, innocent minority arrestees (and increasingly their blood relatives) are especially likely to experience stigmatization and unwarranted law enforcement surveillance from being included in the DNA database.
And CGS asks that we take the broader, more cautious view in giving such tools to law enforcement:
Yet, given our unfortunate history of linking biological understandings of racial difference to notions of racial superiority and inferiority, it would be unwise to ignore the possibility that 21st century technologies may be used to revive long discredited 19th century theories of race.
Advances in human biotechnology hold great promise. But if they are to benefit all of us, closer attention should be paid to the social risks they entail and their particular impacts on minority communities.
Over 70 thousand people go through Baltimore’s Central Booking and Intake Center each year. Baltimore has “one of the largest municipal jails in the nation.” Nine out of ten people in the Baltimore jail are African-American. Here is the genetic material that will substantially fill Maryland’s DNA database all in the name of public safety.