DNA and the Fourth Amendment

Double helix Is DNA protected from illegal search and seizure by the Fourth Amendment?

If you are arrested for, say, drunk driving, do the police have the right to take a swab of your DNA and put it into police databanks?

The Supreme Court says “yes,” and that answer has set off a predictable firestorm on both sides of the civil liberties aisle.

We’ve been debating this issue most acrimoniously for several years in the Oklahoma House of Representatives. Proponents of taking DNA from people who have been arrested compare it to taking a fingerprint. Since fingerprints are routinely taken at the time of every arrest and put into databanks, why not DNA? Opponents express concerns about forced self-incrimination and illegal search and seizure.

There is no right answer to either set of arguments. Both positions have merit. Both concerns are valid.

This is the sort of disagreement that good people get into when they try to make laws. For several years running, the opponents of this legislation have carried the day. Oklahoma finally passed a weakened version of the original legislation that allowed law enforcement to take DNA samples from convicted felons.

I understand the problem with putting people’s DNA into police databanks. If it is abused, it can be tantamount to fishing expeditions where police round up “all the usual suspects” in hope that something pops us. On the other hand, I also understand that DNA is more accurate than fingerprints. I doubt that it’s foolproof. Nothing is. But if it is processed and interpreted by people who are both honest and who know what they are doing, it is more reliable than any other kind of evidence we have today.

Justice demonstrators

Crime Stoppers with photos of crime victims

DNA is particularly useful in solving violent crimes against persons such as rape and murder. It can pinpoint a rapist. It can turn around and free an innocent person who has been wrongly accused. DNA has been used to free a number of men who have been convicted of rapes they didn’t commit, as well as a several men (Everyone I know about who has been freed this way is a man.) who were convicted of murder.

Chemist t640

Joyce Gilchrist, Oklahoma City Police Department forensic chemist.

I voted for this legislation for these reasons, albeit with some trepidation. Police state fears and mis-use of evidence are not paranoia. They are a reality in much of the world and throughout history. For instance, we had a scandal here in Oklahoma in which Joyce Gilchrist, Oklahoma City Police Department forensic chemist, was convicted of falsifying evidence.

It’s difficult to balance the needs of criminal justice to gather the evidence they need to successfully prosecute criminals with the right of the populace to not be afraid of their government. Inserting DNA into this will complicate the situation and require a major re-thinking of what protections are needed.

Dna freed

Chris Rodgers, (center) wrongly convicted of murder. Freed by DNA evidence. 

When the Supreme Court ruled that law enforcement may take DNA swabs from people who have been arrested, it made this job of thinking and re-thinking both imminent and necessary. I assume that when a Supreme Court Justice votes on a ruling, he or she does it with the same awareness that I have when I vote on legislation. I know that no matter how much I try to weigh the pros and cons, I may make the wrong decision. I have made wrong decisions. No matter how hard I try to do my best, I will make wrong decisions again.

Such is the human condition.

Whether or not the Supreme Court was wrong with this ruling depends on how it’s used by law enforcement. Whether it opens the door to abuses, or it ushers in an era of much more accurate prosecutions depends on the integrity of the men and women who use it. Given that we are fallen people living in a fallen world, abuses are inevitable. That is why we need strong safeguards.

Imposing those safeguards is first of all in the hands of state legislators like me. This discussion leads directly to the reason why I pray the Rosary every day. My constant prayer is that God will protect me — and everyone else — from my own stupidity.

I expect I will vote on issues that arise concerning the enforcement of this recent Supreme Court ruling. Legislators all over the country will be doing the same thing. Congress will probably get into the act, as well.

The goal in all this is public safety. Public safety has, as it always does, two components. The first is safety from the bad guys out there who hurt people. The second is safety from the government itself.

 


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