There is no big DNA database containing the DNA sequence of every American. What little DNA database their is was mostly collected from convicts and parolees. So while police may collect an unknown DNA sample from a crime scene, they often can't link it to any specific person, unless that specific person has already committed a crime and is already in the database.
People who are convicted of felonies often have to give DNA samples following conviction, but what about people who are merely arrested? Should someone have their DNA sampled just because they were arrested for a crime? That's the question in Maryland v. King. The Supreme Court has the case now, and Justices on the right and left are skeptical about Maryland's policy of pre-conviction DNA sampling.
From the ABA Journal:
Justice Antonin Scalia appeared unimpressed with the statistics on Tuesday when the U.S. Supreme Court debated the constitutionality of collecting DNA samples from those arrested for serious crimes.
Scalia commented after Maryland’s chief deputy attorney general, Katherine Winfree, offered some statistics, report the National Law Journal, the New York Times and the Washington Post. Winfree said that, since 2009, the state’s DNA collection law had resulted in in 225 matches, 75 prosecutions and 42 convictions. The law, like those on the books in about half the states, does not require a search warrant before DNA is collected from arrestees.
At that point, “Scalia pounced,” according to the Post account. “Well, that's really good," Scalia said. "I'll bet if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. That proves absolutely nothing."
The argument produced unusual coalitions among justices of differing ideologies, the Post says. Scalia and Justice Elena Kagan were most critical of the Maryland statute, while Justices Samuel A. Alito Jr. and Justice Stephen G. Breyer were most supportive. Alito called the case “perhaps the most important criminal procedure case that this court has heard in decades.”
Let's not lose sight of the incentive system created when the government can get your DNA (or fingerprint, or some other biometric sample) into a database if only it can find a reason to arrest you. That creates an incentive to arrest for reasons other than that because the officer thinks you commited a crime. Sure, the case may later be dismissed, but the data remains. Anyone who has tried to expunge their name from court records knows all too well how difficult it is to ever really wipe out the past.
Will "DNA expungements" become an issue years from now? Thousands or millions of people may want their DNA removed from government databases after the criminal charges against them were dismissed. Call me cynical, but just because the government says they removed your sample from a database that you're not allowed to see, will you really believe them?
DNA technology rocked the criminal justice system twenty years ago, and it is still a hot-button issue.
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