Local police departments across the country have begun collecting DNA from people in custody and entering the samples into a database. Sometimes they tell suspects they are sampling their DNA, and other times they do it without the suspect’s knowledge.
On June 3, the Supreme Court ruled to uphold the DNA swabbing of arrestees without a warrant. The practice is currently used in 26 states.
The New York Times recently reported that New York City currently has a criminal database of 11,000 suspects. The district attorney’s office in Orange County, Calif., has collected 90,000 DNA profiles, many of which belong to low-level defendants who handed over their DNA as part of a plea agreement.
Some justices have argued about the practice violating the Fourth Amendment protection against unreasonable search.
"Make no mistake about it: because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason," Justice Antonin Scalia wrote. "This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane."
The Supreme Court decision upheld a statute that allowed Maryland to collect DNA samples from those arrested for serious crimes. The case in question involved a man arrested for assault in 2009. Once he was crosschecked in the database, he was also charged and convicted of a 2003 rape. An appelate court which threw out his conviction argued that the police had no warrant and no reason to suspect Alonzo Jay King of committing another crime when they collecting his DNA.
Typically being entered into a state or federal database would require conviction or arrest. However, law enforcement agencies no longer have to follow and state and federal regulations on DNA databasing. Frustrated with waiting for DNA to be processed by state crime laboratories or hoping to profile low-level suspects before they commit serious crime, local law enforcement is now free to run databases however they want.
Their policies often include taking DNA from people suspected of a crime, but not actually arrested. They keep the DNA, the Times reported, even if the suspect is cleared of any wrongdoing.
“Unfortunately, what goes into the national database are mostly reference swabs of people who are going to prison,” said Jay Whitt of DNA:SI Labs, which sells DNA testing and database services to police departments, to the Times. “They’re not the ones we’re dealing with day in day out, the ones still on the street just slipping under the radar.”
“We have been warning law enforcement that when public attention began to focus on these rogue, unregulated databases, people would be disturbed,” said co-director Barry Scheck of the Innocence Project, which helps exonerate those wrongfully convicted. “Law enforcement has just gone ahead and started collecting DNA samples from suspects in an unregulated fashion.”
Richard Lempert of the Brookings Institute points out that minorities will be particularly vulnerable because they are more likely to be arrested. A recent study found that black people are four times more likely to be arrested for marijuana possession than a white person.