9th Circuit, ACLU, Civil Rights, Constitutional Law, Crime, Privacy

A Brave New Genetic Database

While in journalism school, one of my “assignments” was to hang out at New York’s night court (open until 1 a.m. every night), observe the proceedings, and then write about them. It was less exciting than Judge Harry had led me to believe, but was an interesting night replete with drug addicts, prostitutes, and a cheap-date-loving couple who had stopped in to observe as free post-Chinatown-dinner entertainment.

It also introduced me to a 2006 New York law that requires felons to submit a genetic sample to the state DNA database. When informed of the law, one defendant arraigned on burglary charges resisted giving up his double helixes. “Are you willing to issue a court order to make me do it, sir?” he asked the judge.

“Is my saying it to you not enough?” the judge replied. The defendant said: “If you sign a court order, I’ll do it.” The judge asked for a piece of paper, and the defendant objected, “No, I want an official court order.”

The assistant district attorney then explained, in an annoyed tone, that any paper written and signed by the judge qualifies as a “court order.” The judge issued the order, but the man returned 15 minutes later, still refusing to give the DNA sample. The judge set bail and again reminded the dude that the DNA sample was required by law.

Many states have criminal genetic databases these days. As noted by the Genomics Law Report, the LAPD’s using theirs to catch the “Grim Sleeper” serial killer has resulted in a lot of media attention for these databases, despite the fact that they’ve been around for awhile. That’s because, according to GLR, “the case marks the first time in the United States that a DNA search technique known as familial searching has led to an arrest in a homicide case.” The LAPD nabbed the Grim Sleeper after DNA samples from the murders were found to be genetically similar to those of the Sleeper’s son, who had given up his DNA after a felony weapons charge. (Apparently, criminal genes run in that family.)

The attention being paid to the databases is not all positive, though. The ACLU, which has a problem with the way that California compiles its database, filed a lawsuit against Attorney General Jerry Brown last year. It’s now before the Ninth Circuit. What’s the ACLU’s problem with California’s compiling genetic information for felons and suspected felons?

It doesn’t like the “suspected felons” part. From the San Francisco Chronicle:

Challenging a California law that requires police to collect the DNA of all suspected felons, an American Civil Liberties Union lawyer told a federal appeals court Tuesday that the government should not be allowed to take the “genetic blueprint” of someone who hasn’t been convicted of a crime.

One-third of the 300,000 Californians arrested on felony charges each year are never convicted, but the state now can “seize, search and analyze the DNA of everyone,” attorney Michael Risher told the Ninth U.S. Circuit Court of Appeals in San Francisco.

He said the voter-approved law allowing DNA testing after all felony arrests sacrifices privacy in exchange for questionable gains in identifying criminals.

The ACLU’s lead plaintiff, Elizabeth Haskell of Oakland, was arrested in March 2009 and released without charges, but not before the police lifted her genetic prints. She has to wait three years from the time of her arrest before requesting the removal of her sample from the database. Even then, she may get a “No way, Jose” from a judge or prosecutor.

One federal judge seems to have a hazy grasp of exactly what it means to have someone’s genetic material on file:

Judge Milan Smith said DNA testing, taken with a swab from the inner cheek, is no more intrusive than fingerprinting and is “a really good way of identifying people.” He said Risher was asking government officials to be “Luddites (who) can’t use modern technology.”

The Luddite criticism may be fair, but the comparison to fingerprinting isn’t. It certainly is more intrusive, in that blood is taken or a swab is stuck in your mouth. And it’s intrusive for the whole family: your fingerprint doesn’t lead to the potential fingering of your loved — or at least related — ones. More discussion of familial searching here.

Asked why it keeps the samples from those never charged, the prosecutor gave a creepy answer:

Asked by Judge William Fletcher why the state keeps the DNA of people who were not convicted, Powell said those who know their samples are in the database are “less likely to commit future crimes.”

Nice. That makes the collection of newborns’ DNA samples at hospitals an even better idea and the world a safer place! The NIH and the DOJ need to hook up.

Attorney General Jerry Brown calls genetic samples “the fingerprint of the 21st century.” The Court indicated that it might like to give its stamp of approval to the genetic collection, but that precedent might prevent it from doing so:

Smith said the court is bound by the precedent of its June 2009 ruling in a case from Las Vegas. That 2-1 decision said police violated the constitutional ban on unreasonable searches when they extracted DNA from a man who was under arrest — but was not suspected of any other crimes — so they could enter it into a criminal database.

As Wired notes, no matter how the Ninth Circuit rules, this case is likely to make it to the Supreme Court. (And given the Court’s last term, how the Ninth rules might actually matter.)

ACLU says California DNA law violates privacy [San Francisco Chronicle]
Haskell v. Brown [ACLU]
Grim Sleeper Awakens Attention to Familial Searching of DNA Databases [Genomics Law Report]
The Cost of Making Crime Not Pay: Obama, CODIS and Forensic DNA [Genomics Law Report]
Court Mixed on Constitutionality of Taking DNA From Arrestees [Threat Level/Wired]

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