Innocent people could soon be forced to submit DNA samples to the state. If a bill (H.B. 1403) the state legislature is considering becomes law, law enforcement would be required to collect DNA from anyone arrested for certain felonies.
Under existing law, law enforcement can collect DNA from convicted felons. This DNA information is stored in both a state and national database. The new law would take DNA collection to a whole new level.
The fundamental tenet of our criminal justice system is that individuals are presumed innocent until proven guilty. Taking DNA from arrestees would turn this principle on its head.
If someone has been convicted of a crime, there's a reasonable argument that the person has lost certain expectations of privacy. However, the same argument doesn't apply to arrestees.
An arrested person is presumed to be as innocent as someone who hasn't been arrested. To assume that being arrested is a triggering event that signifies some level of guilt is the exact opposite of how the criminal justice system works.
It's incorrect to argue that people have nothing to worry about if they don't do anything wrong. Many people lead law-abiding lives and still are arrested. There's also a major difference between fingerprints and DNA. Fingerprints are used for identification purposes -- to know that John Doe really is John Doe.
DNA samples can be used for far more than identification. As the federal government's Human Genome Project explains, "DNA can provide insights into many aspects of people and their families including susceptibility to particular diseases, legitimacy of birth, and perhaps predisposition to certain behaviors and sexual orientation." A Pennsylvania federal District Court argued "to compare the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling is pure folly."
The bill does allow arrestees who are never charged or convicted to have the DNA evidence destroyed, but this isn't much protection. The state never should possess DNA information of innocent people. The information also can be misused or inadequately protected.
Further, these innocent people would have to jump through hoops to have the DNA destroyed. Many individuals won't have the time, resources, or knowledge to navigate their way through the system. As a result, the state would possess a significant amount of private information about innocent people.
Proponents of collecting DNA from arrestees presume that the government can simply be trusted with this highly sensitive information. One doesn't have to be paranoid to believe that we must be vigilant when it comes to government intrusions into personal privacy. The country was founded on this principle. The checks and balances and separation of powers exist because the Founders understood that power can be abused.
Government misuse of data, while a concern, isn't as likely as poor protection of the DNA information. In 2006, an employee at the Department of Veterans Affairs had a laptop computer stolen from his home. On that computer was the personal information of 26.5 million veterans. This sloppiness isn't isolated. A 2006 House report found that all the federal departments and agencies surveyed had at least one incident where personal information had been lost or stolen.
Finally, the bill likely is unconstitutional. The Fourth Amendment to the Constitution protects against unreasonable searches and seizures. A court would have to believe that the governmental interest in obtaining DNA from arrestees without a search warrant or consent of the arrestee is greater than the privacy interests of innocent people.
Given the distinction between an individual being arrested compared to being convicted, and the unique nature of DNA, most courts could easily find collecting DNA from arrestees is an unconstitutional search.
Benjamin Franklin said, "Anyone who trades liberty for security deserves neither liberty nor security."
This often-referenced quote is also an often-ignored quote. The North Carolina legislature needs to remember these words and choose liberty.
Daren Bakst is director of Legal and Regulatory Studies for the John Locke Foundation. Sarah Preston is policy director of the ACLU of North Carolina.
