Much has been made of the recent U.S. Supreme Court opinion, Maryland v. King, which upholds a Maryland state law that 26 other states already utilize in one form or another (another state has passed the bill since the Court's decision). The law at issue is one that allows law enforcement to take a DNA sample by buccal swab (a simple swab on the inside of the mouth) when someone is arrested for a "serious" offense. During the 2013 Regular Session I filed Senate Bill 47 which required such samples be taken during booking following a felony arrest.
Here are a couple of points to remember about the DNA sample:
- The sample taken is not available for use as direct evidence at trial. The record created following the felony arrest is added to the CODIS database and remains there unknown to anyone until a "hit" is made with a pending/cold case investigation. Only then is that law enforcement agency notified of the potential match. That law enforcement agency with the pending/cold case must still produce sufficient cause through an affidavit for a search warrant, which must as always be approved by a judge. If the search warrant is granted, and if a subsequent sample is properly taken and indicates a match between the suspect and the case, then that second sample (obtained by the warrant) can be used at trial.
- The DNA sample contained in the database cannot personally identify anyone - the only physical trait it shows is gender. "Through a forensic DNA profile, it is impossible to obtain medical information and genetic indicators. Forensic analysts only analyze the 13 markers that make identification possible. And, unlike fingerprints, the DNA profile is stored in CODIS as a numeric file, with absolutely no access to personal information (not even the person's name) or criminal background. Crime scene evidence matching this profile will lead police to the right suspect, regardless of race or economic status, thereby reducing the incidence of racial profiling and other objectionable means of developing suspects." [emphasis mine] I couldn't explain it better myself. Its also important to note that the physical sample is not retained after the record is logged in the database - only the record itself remains. Learn more from DNA Saves here.
- The DNA record can be expunged from the database if the underlying arrest is dismissed or results in an acquittal.
The opposition has valid fears, to an extent. In sum, the concern involves the continued encroachment of big brother upon our personal privacy. I completely agree that the ability of the government, local, state or federal, to "snoop" should be limited. The 4th Amendment's guarantee against unreasonable searches and seizures is a bedrock principal of criminal jurisprudence and I'm not at all prepared to weaken it. I believe abuse of DNA information, especially if the DNA record actually could contain personally identifiable information, is absolutely impermissible.
The fear of abuse is all the more real in light of current revelations of such abuse at the highest levels of government. I have yet to find someone outside of MSNBC that condones the behavior of the IRS. Its reprehensible.
But I also know that the intrusion into privacy of the legislation I propose is slight. On the other hand, the benefit to our safety, security, and ability to obtain justice for victims of horrendous crimes is enormous. A swab on the inside of the cheek is not on par with Japanese internment camps or domestic drone use - both used at different times in our nation's history in the name of security. Incrementalism is a legitimate beef, but the only argument I can offer is that today the invasion of privacy is slight, the safety to life is immense, and that the balance of what is "reasonable" currently strongly favors the use of DNA. We must continue to guard our privacy against unreasonable intrusions, but we must also not be blind to the need to equip law enforcement with the tools of today.
I'll close with this thought, which is the one that motivates me more than any other in the argument for this legislation. JayAnn Sepich, the mother of Katie Sepich after whom the recent federal law ("Katie's Law") was named, has traveled the country championing this legislation in every state possible, including Kentucky in 2013. During her testimony Mrs. Sepich described the states where she had to try more than once to get the bill passed. In each of those jurisdictions she was able to produce a list of names of victims that could have been saved had the bill been passed the first time. As Kentucky has already missed its first chance, should we ever eventually pass the measure, I fear the Commonwealth will have its own list of lives we could have saved. Those lives are worth a two-second mouth swab to me.