Amid many recent challenges to Fourth Amendment protections against warrantless or unreasonable search and seizure, including revelations of widespread National Security Agency internet and telephone surveillance and the Department of Justice subpoena of phone records from Associated Press journalists, earlier this month the Supreme Court ruled on a case that tests the limits of personal privacy from the state.
By a 5-4 decision, the Court upheld the Maryland DNA Collection Act, a provision that allows authorities to collect a DNA sample without a warrant from individuals arrested, but not yet convicted, of burglary or a violent crime. Maryland v. King centered on the experience of Alonzo Jay King, Jr., who was originally arrested on assault charges and subsequently convicted of an unsolved rape committed 6 years prior based on his DNA sample collected as part of routine booking procedures under the Act. While 28 states and the federal government require a DNA cheek swab from arrestees for various infractions, all DNA samples in state custody are analyzed to create a basic profile and submitted to the FBI’s Combined DNA Index System (CODIS). CODIS provides no identifying information other than laboratory of origin and contains DNA indices for convicted offenders, forensic evidence, arrestees, and missing persons. It is standard procedure to test new samples against all of the indices and where arrestee profiles and forensic evidence from unsolved crimes collide is the point of contention at the center of this case: what is the purpose of DNA collection from persons presumably innocent and is this warrantless seizure of evidence for unrelated crimes constitutionally “unreasonable.”
Rather than focusing on the function of DNA in crime solving, the majority of Justices concluded DNA collection during the booking process should be permitted in order to more accurately identify suspects and their criminal records, like a 21st century version of fingerprinting. However, according to a recent poll following the Court’s decision, when it comes to police collection of personal information, Americans don’t see DNA and fingerprints as comparable entities. Half of respondents thought it unacceptable for police to collect DNA samples from arrestees without a warrant (34% acceptable, 50% unacceptable, 16% not sure) compared to a majority who accepted fingerprinting in the same situation (62% acceptable, 26% unacceptable, 12% not sure).
While most demographic groups expressed an unfavorable view of warrantless DNA collection, African Americans favored this practice the least with 60-21% finding it unacceptable compared to 50-36% for whites and 46-36% for Hispanics. Interestingly, African Americans were the only group that also showed a majority unfavorable, though ultimately split view of warrantless fingerprinting with 44-39% finding it unacceptable (compared to 67-23% of whites and 58-28% of Hispanics expressing acceptance). This attitude may not be surprising considering the various pre-existing prejudices and inequalities against people of color in our criminal justice system. These poll numbers also appeared to support findings from a 2012 study conducted by Hochschild and Sen that found African Americans to be more unwilling to submit a DNA sample or to trust public officials to properly handle DNA within the criminal justice system. This same study notes that as of 2012, roughly two fifths of DNA samples contained in the National DNA Index System (NDIS, the highest level of CODIS) come from African Americans. (Read also "Message Guidance: Media Coverage and Public Perceptions of African-American Black Men and Boys")
While the Maryland DNA Collection Act and most other states restrict arrestee DNA collection to felony offenders (some extend this to juveniles), Justice Scalia pointed out that nearly one-third of Americans will be arrested by the age of 23 and that the case creates a dangerous precedent where the courts are powerless to limit the types of crimes that could require DNA collection; “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” said Scalia. Even Barry Scheck, co-founder of the Innocence Project—a litigation and public policy organization dedicated to exonerating wrongfully convicted felons using DNA evidence—expressed disappointment with the SCOTUS ruling, noting the case was not meant to be an evaluation of the merits of DNA databases but of the warrant requirements that are supposed to protect the privacy of citizens.
The “constitutionally” expanded right of authorities to collect and access DNA evidence granted by Maryland v. King is particularly troubling given the 2009 Supreme Court decision on District Attorney’s Office v. Osborne, a case in which the Innocence Project defended the losing prisoner and the majority opinion ruled that prisoners had no constitutional right to DNA testing that could prove innocence, even at their own expense. Sadly, this latest ruling by the Supreme Court seems to be a continuation of unequal rights and practices within our criminal justice system. Though DNA may prove to be the fingerprint of the future and we may one day have a database that contains every citizen’s DNA profile, while our technology inches towards that point, the demographics that already have constant contact with the criminal justice system will be subject to near permanent surveillance and scrutiny of the most personal and irrefutable sort. To paraphrase an ACLU representative, it is with DNA collection from individuals merely charged that we truly turn a generation of young black men and boys into a list of the usual suspects.