Let's Not Jump Off the DNA Cliff

The General Assembly is set to begin debating House Bill 107, which would create a state database of DNA samples collected from individuals up on their arrest for felonies and certain types of burglaries.  Currently, Maryland is one of 45 states that collects DNA evidence upon conviction.

Proponents argue that Maryland has the fifth-highest number of violent crimes in the nation, and that such a database would decrease the odds of convicting and imprisoning innocent people and increase the odds of convicting the guilty. They point to the cases of Bernard Webster and Kirk Bloodsworth (both of whom were freed based on DNA evidence) as examples of how the database could work.

Unfortunately, as is usually the case with the General Assembly, their argument holds less water than a Kleenex tissue.

First, when Bloodsworth and Webster were convicted, DNA evidence testing and collection DID NOT EXIST.  They could not have possibly been exonerated – or even ruled out – at the time of their trials.  What happened to them was damnable, but the process did not exist yet to use DNA to keep them out of jail (or even court).

Second, ANY defendant in the State of Maryland has the ability to undergo DNA collection and testing to challenge the case of the prosecution.  That right already exists.  They also have the ability to challenge any piece of evidence in a court of law.  Any attorney worth the paper their license is printed on would first turn to a DNA test to challenge the case of the prosecution if such a test was warranted. HB 107 would not change this fact at all.

Proponents also argue that expanded DNA testing is not an invasion of privacy, because arrestees are already fingerprinted, and this is not considered an invasion of privacy.  Fingerprinting is considered as an acceptable investigative tool. 

That is fine.  Fingerprinting is considered as an acceptable investigative tool  But fingerprinting is not an invasive process AND fingerprints do NOT convey reams of private information about a person.  A person’s DNA can contain vast numbers of secrets that a person might not want available in a government database.  Fingerprints cannot tell the government that you are an Ashkenazi Jew, or if you have certain genes that make you susceptible to certain diseases.  Fingerprints cannot tell the government that you have certain markers the indicate you are homosexual, or if you carry the recessive trait for dwarfism, or if you higher chance of cancer.  Or Alzheimers.  Or if you are predisposed to addiction.  Or any other number of conditions we don’t even know about yet.  Fingerprints cannot tell you that you were actually adopted, when you have no clue.

DNA collection is an invasive process—it requires collection from an intact hair follicle (pulling out from the root with the root intact), a blood collection, or collection from a mucous membrane.

And DNA can identify all the things I listed above – and more.  It is a massive invasion of privacy.  Are we to trust “government” that such a collection database will only be used for law enforcement purposes?  We trusted government once upon a time that Social Security numbers would never be used for identification purposes.  Yet today, they are used just that way for everything from medical records to bank records.

Once government has a database of DNA samples, who is to say that they would not increase its use.  Want to find the cousins of a suspect?  Track them through DNA.  Want to find out which citizens are most susceptible cancer before they apply for Medicare?  Check their DNA record.  Want to find out if a potential state employee might be pre-disposed to addiction?  Check their DNA record.

Or, imagine you are arrested for a crime – say, drunk driving.  Would prosecutors be able to use a “predilection” to alcohol abuse identified in your DNA as evidence?

Why should citizens be required to submit such evidence to the police, when they are protected from having to admit such facts directly?  Why should our fourth amendment rights against self-incrimination not extend to our own bodies?

And let us look at the cost of collection, testing, and maintenance.  Collecting DNA in most jurisdictions requires either a criminalist (think CSI) or medical personnel.  Are we going to grow the expense of law enforcement even more by beefing up the staffs of criminalists? Just a few years ago, Baltimore City had over 20,000 arrests in a single year.  Who is going to collect all these samples? How are we going to preserve DNA samples until they are properly catalogued and stored under climate-controlled conditions?  How are we going to error-check entries?

Moreover, how are we going to secure such records?  The government does not have a particularly strong record of data security in this country.  Whether they are medical records, employment records, or veteran’s records, governments all across this country fail miserably to protect this data.  How can an arrestee be guaranteed that the government is properly cataloging and storing this data?

Can the government GUARANTEE that every sample and every record will be securely locked away and accessible only to those with the “need to know”?  The government cannot even secure our nuclear secrets at Los Alamos and White Sands.

Finally, the process for expungement of the DNA record is silly.  It places the burden to prove that the record should be expunged on the sample’s owner.  That is a complete contravention of our entire criminal justice system, where the burden of proof is on the prosecution.

As citizens of Maryland, we should not stand one minute and allow the government of this State to create a vast repository of private, personal information on its citizens. Proponents of this legislation try to frame it as providing an exclusionary ability.  That is called “framing the issue in the best light possible”. Unfortunately, taking this path will only lead to a great dark abyss.

We are standing on the cliff.  Let’s not all jump off.

crossposted at RedMaryland