The Free Press, Mankato, MN

June 7, 2013

DNA ruling can guide state law

Why it matters: There can be a balance between privacy and effective law enforcement -- if we are careful

The Mankato Free Press

---- — In a controversial decision, the U.S. Supreme Court rulef 5-4, that police can take DNA samples for people under arrest in hopes to connecting them to other crimes. With some safeguards, this can be an appropriate use of new crime-solving technology.

Previously, law enforcement could take such samples from convicted felons who have limited privacy rights. The case before the High Court was the question of whether people who have only been arrested – not convicted – also must submit to a cheek swab for testing against a nationwide database of DNA involving unsolved crimes.

In the case before the court, a Maryland suspect was arrested on an arms charge and a subsequent DNA match tied him to an unsolved rape six years earlier. The state’s Court of Appeals voided the rape conviction holding such search was a violation of the Fourth Amendment. In such cases, there has to be probable cause before a search can occur.

Prosecutors argued – and the Supreme Court majority agreed – that such sampling is yet another tool to identify an arrestee’s identity just as fingerprinting.

A notable exception came from conservative Justice Antonin Scalia who compared the practice to the colonial British use of blanket searches of the public. “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection,” he said.

“Make no mistake about it” he wrote, “your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Barry Scheck, one of the directors of the Innocence Project, an organization that helps wrongfully convicted people clear their names through DNA analysis, presented a different slant.

“We’re all in favor of DNA databanks, and using them to exonerate the innocent and apprehend the guilty,” he told the Washington Post. But Scheck disagreed with the ruling, saying he worried the court’s reasoning could open the way for large numbers of minor offenders’ DNA profiles to be pointlessly added to databases.

Without the proper protections, there is that possibility and we need to guard against it.

The Maryland law had some limitations that should be considered the bare minimum of requirements for any state law using DNA in such a manner to protect privacy.

In Maryland, the law applies only to those arrested on charges involving violent crimes or burglary. The samples may not be processed without suspects’ consent until they are arraigned, must be destroyed if charges are dismissed or the suspect is acquitted, pardoned or has a conviction reversed on appeal, and can only be used for “identification” purposes.

This prevents a “database” of DNA which would be a huge privacy problem. Not all states have such safeguards. Fortunately, in Minnesota, the Court of Appeals ruled in 2006 on a similar case and found the practice unconstitutional.

The only time it’s allowed in Minnesota is if the person has been arrested for a very violent crime like murder or sexual assault, and then only with a judge’s permission.

The matter may sit with the Legislature, says Ramsey County Attorney John Choi. He told MinnPost that “for states like Minnesota where we have a little bit of a different process than the majority of states, it provides a really important opportunity from a policy standpoint to think through whether the state wishes do something like this.”

It is important we protect the privacy of suspects on the firm belief that people are innocent until proven guilty. However, the populace has long indicated its desire to provide law enforcement with adequate tools to combat crime and there must be a balance.

The safeguards provided by Maryland’s law seem reasonable and should be considered by the Minnesota Legislature. And oversight on how this law is administered is equally as important to ensure we have no further erosion of privacy and due process protections afforded by the Constitution.