Collect DNA after conviction, not before

In a sharply divided 5-4 decision last week the U.S. Supreme Court ruled law enforcement collection of DNA samples from anyone arrested for a serious crime was not an unreasonable search or seizure as prohibited by the Fourth Amendment.

The ruling upheld a Maryland law allowing police to take a DNA swab from someone arrested for a serious crime, something 28 other states and the federal government also allow. Supporters of the decision cheered the ruling, noting DNA evidence has been used to successfully link individuals to heinous crimes such as rape.

“Taking and analyzing a cheek swab of the arrestee(s) DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote for the court’s majority.

But the court’s three liberal justices and conservative Antonin Scalia sharply disagreed, saying the decision is a major change in police powers that might someday extend beyond serious crimes.

“Make no mistake about it,” Scalia said. “Because of today’s decision your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

We agree with the minority.

Right now all 50 states and the federal government allow DNA collections from those convicted of a serious crime. In Washington, RCW 43.43.754 lists who must give up their DNA and for what offenses – with the key word being “convicted.”

That is the way it should be. DNA should only be collected upon conviction, not simply because an individual is arrested.

We acknowledge DNA has proven effective in linking individuals convicted of serious crimes with other unsolved incidents and we applaud that. But being arrested is far different from conviction, as we point out every week in our West Plains Police News disclaimer.

The Fourth Amendment guarantees security in our “persons, houses, papers and effects” and puts the burden of proof of suspicion on law enforcement and the courts, requiring those entities to follow specific procedures before information is collected. Last week’s Supreme Court ruling lessens that burden of proof.

And the minority is right in questioning the limitation of collection to only serious crimes. Even Maryland Attorney General Doug Gansler agreed there was nothing stopping his state from expanding that scope to those arrested for lesser crimes.

Furthermore, charges can be changed after an arrest. What’s to stop an officer from arresting someone with a felony in order to gather a DNA sample, and then have the prosecutor’s office reduce that to a lesser charge after?

And despite its success in helping catch perpetrators of unsolved crimes, DNA collection is still a human conducted process capable of producing incorrect results through any variety of errors. Nothing is perfect, and if wrongfully charged and later exonerated, do you get your DNA removed from the system?

Over the last decade or so we have been steadily sacrificing our personal freedoms in the name of collective security. The court’s ruling on DNA collection is one more step in that direction.

At some point in time, the freedom of being innocent until proven guilty must be reaffirmed. Limiting DNA collection until after conviction is that affirmation.