Family DNA Matching Risks Police Abuses

Earlier this year, I criticized a new law that allows police to take DNA samples from people they arrest for a felony, absent any criminal conviction. As the Denver Post summarized, "The bill was amended to allow police to take DNA tests upon arrest but for the sample not to be processed unless a person is charged. The sample will be destroyed if no charges are filed."

As I noted, the law will "encourage police and prosecutors to arrest and charge people just to get a look at their DNA."

Now that Denver police have advanced a program to match crime-scene DNA to samples on record, it is no longer a question of whether the law will be abused, but when.

Michael Roberts writes for Westword, "Denver District Attorney Mitch Morrissey... [has] been working with colleagues in the Denver Police Department's crime lab, among others, to prove the efficacy of a method able to connect DNA not in law-enforcement databases to samples from family members..."

Morrissey told Roberts, "We're running [a sample] against the DNA of somebody else whose sample we obtained legally."

Except that obtaining somebody else's DNA legally is now trivially easy. You just come up with some plausible complaint against a person and arrest him. Voila -- a legal DNA sample.

So let's say the police suspect Joe Blow of committing some crime, but they can't easily find Joe Blow. But they know where to find Sam Blow, Joe's brother. If only we could figure out if the DNA we found belongs to Joe! All we need to do is get a look at Sam's DNA. And if Sam isn't feeling so cooperative...

I do not doubt that taking DNA samples from everybody in the population would help solve more crimes. Hell, we could get a database going with every single person's fingerprint, DNA, eye scan, special markings, and so on. We could also install every newborn with a barcode and GPS tracker. Update: CNN also carried the story on the DNA tests. Defense attorney Stephen Mercer told CNN, "If they want to drive down the street and do no-knock searches of homes, they would catch bad guys. But at what cost to our society?"

Or, we could retain our liberties. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

November 25 update: "Panel: British police arrest people just for DNA samples." Coming soon to a Colorado city near you?

Bill 1984

I had occasion to meet State Senator Morgan Carroll, who said a few words against the bill that would require DNA samples before conviction, based merely on arrest for a suspected felony.

Officially the bill is known as "Colorado Senate Bill 09-241." The more appropriate name for it is Bill 1984, in honor of the Orwellian world it would help bring about.

Previously I wrote, "I still need to think more carefully about this issue before reaching a definitive opinion..." I have thought more carefully, and I have reached the definitive opinion that Bill 1984 deserves to go down in defeat, as surely as two plus two equals four.

As one of my friends explained to me, the bill would (among other things) create a perverse incentive for the police to arrest select individuals on some pretext, just to look at their DNA. We could call this "DNA fishing."

Notably, and frighteningly, Carroll "wound up casting the lone vote against" the measure in Senate Judiciary.

The Denver Post points out (in a typically vacillating editorial):

The results will be kept in a database unless the person is found not guilty, is convicted of a misdemeanor, or charges are dropped.

However, removing the DNA sample from law-enforcement databases is not automatic. ... The person whose DNA was taken has to, in some cases, get a notarized letter from the DA saying no felony charge was filed within the statute of limitations -- which could go on for years. Or that person must get a certified copy of a court order saying the charge was dismissed.

In other words, the burden is on the accused, and it's significant.

Of course, by then the police have already run all the DNA checks they intended. Moreover, it is only a matter of time before some other legislator figures that allowing the innocent to remove their DNA information from the database is an undue burden on law enforcement.

The foundation of a just legal system is the presumption of innocence until guilt is proved. Yes, upon probable cause people may be arrested, held, and tried prior to a jury's finding of guilty or not guilty. But such restraints are justified only insofar as they are necessary for the resolution of the case. Violations of liberty beyond that are unjust.

Not everything goes in empowering law enforcement to solve crimes. No doubt the police could solve more cases if they were able to arrest people without cause, forcibly collect DNA samples of every newborn, implant everyone with computer chips, use torture, imprison people at will for any length of time, etc. But we don't allow those things, because they would corrode the very system of liberty and justice that we are trying to protect. For similar reasons, we should not allow DNA sampling prior to conviction.

"He gazed up at the enormous face. Forty years it had taken him to learn what kind of smile was hidden beneath the dark moustache. O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving breast! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother."

DNA Samples Before Conviction?

David Williams sent out the following media release, which I pass along as interesting information. I still need to think more carefully about this issue before reaching a definitive opinion, but the default position is that collecting people's DNA before they have been convicted of any crime is pretty scary territory. (Note that I do not endorse the Libertarian Party.)

Backlash against costly government DNA database builds

March 16, 2009 Denver -- Colorado Senate Bill 09-241, which would mandate the use of government force to take DNA samples from innocent citizens, made it out of the Senate Judiciary Committee by a 5-1 margin on March 11, 2009. A wide range of groups have joined together to fight this un-American bill, which would cost taxpayers over $1.7 million to implement.

The Libertarian Party of Colorado, the Colorado ACLU, the Gadsden Society, the Colorado Criminal Defense Bar and the Colorado Public Defenders Office, among others, all oppose this costly Orwellian expansion of government power over innocent Americans.

David K. Williams, Jr., Legislative Director for the Libertarian Party and President of the Gadsden Society is among those against the bill.

"The backers of this bill claim it will help law enforcement. Undoubtedly it would," Williams said. "So would the repeal of the Fourth Amendment. So would micro chipping newborns so the government knows where they are all at times, from cradle to grave. So would putting video cameras in every house.

"The point is that helping law enforcement is not the only concern Americans should have. Protecting the Constitution and preventing government abuse of power should also be a concern of all Americans."

The next stop for the bill is the Senate Appropriations Committee, where a hearing date has not yet been set. If the Appropriations Committee decides it is a good idea to spend $1.7 million of taxpayer money to implement the proposed DNA database, the bill would move to the floor of the Senate for debate.

Senator Morgan Carroll (D – Aurora) was the lone “no” vote in the Judiciary Committee.

Resources

SB 09-241 language

SB 09-241 Fiscal Impact note

SB 09-241 Senate Judiciary Committee Roll Call vote

About the Gadsden Society

The Gadsden Society is a non-partisan public advocacy group, fighting for the preservation and expansion of individual liberty throughout Colorado. The Gadsden Society monitors bills pending in the state legislature and advocates on behalf of legislation that expands individual liberty and opposes legislation that contracts individual liberty.

Contact information

David K. Williams, Jr.
President, The Gadsden Society