A DNA analyst processes evidence. (AP Photo/Marshall University, Alex Wilson)
On February 26, the Supreme Court heard oral arguments in Maryland v. King, which presents the question of whether the Fourth Amendment permits the warrantless collection of DNA from people arrested for, but not convicted of, a crime. Currently, twenty-eight states and federal law enforcement collect DNA upon arrest—when a person is still presumed innocent. During oral arguments, Justice Samuel Alito called it “perhaps the most important criminal procedure case that this Court has heard in decades.”
The case goes back to April 10, 2009, when Maryland police arrested Alonzo King on assault charges. A DNA sample was collected, and four months later, it was found to match evidence from an unsolved rape, which led to King’s conviction for the crime. The case is precisely the sort of example given by proponents of broad DNA collection: DNA has the power to identify the guilty and exonerate the innocent. But in King’s case, the Maryland Court of Appeals determined that arrestees have privacy expectations that outweigh the state’s crime-solving interest.
In its petition to the Supreme Court, Maryland argues that collecting DNA is no more invasive than its twentieth-century counterpart, the fingerprint. But King and opposing groups filing friend of the court, or amicus, briefs respond that unlike fingerprints, DNA is a trove of personal, medical and ancestral information. What’s more, DNA solves cases far less frequently than the state suggests. In 2011, Maryland police collected 10,666 DNA samples; only nineteen led to an arrest. The state’s interest is thus not identification but investigation—and the Court has never permitted suspicionless searches of suspects without a warrant. If it does in King, there will be no principle limiting when our DNA may be collected in the name of fighting crime.
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But beyond privacy concerns, there is another reason to reconsider DNA collection on arrest. Because people of color are disproportionately stopped, searched and arrested, they will disproportionately bear the burden of this genetic dragnet. And because DNA samples can be used to establish family relationships, it has the potential to widen the surveillance to entire communities.
Maryland’s petition argues in favor of further incorporating DNA “into established criminal procedure.” But this is precisely the danger. Many criminal procedures, no matter their original intent, disproportionately affect people of color. An amicus brief filed by Howard University provides three examples: the “war on drugs” and two of its symptoms, the New York Police Department’s “stop-and-frisk” policy, and pretextual traffic stops—in which police seize on minor violations for the chance to investigate “suspicious” drivers.
The latter examples show why putting the power of DNA collection in the hands of police is so risky. “The wider the discretion that law enforcement officers have in implementing policies to serve their crime control ends,” Howard’s brief argues, “the more likely that these policies will be used to harass and infringe upon the rights of people of color.” Maryland’s petition cites the National Research Council on the “objective standards of DNA comparison.” But we should not confuse the objectivity of how samples are tested with the subjectivity of how they are collected. DNA is a value-neutral biological molecule, but DNA databases are mirrors that reflect the bias in justice systems. A cautionary example: by 2008, Britain’s National Database stored DNA from 27 percent of the black population and 77 percent of young black males.