Our View: No DNA samples without a conviction
Lily Haskell was arrested three years ago at a San Francisco anti-war rally and charged with a felony. While in custody, police took a DNA sample from her. The felony charges against her were dropped. Yet, authorities held onto her DNA sample, now stored in the state's DNA database.
Haskell is one of three California residents, represented by the American Civil Liberties Union, which is challenging Proposition 69, passed by voters in 2004, which empowered police to collect DNA samples not just from those actually convicted of a felony, but also those, like Haskell, merely arrested for a felony.
A three-judge panel of the 9th US Circuit Court of Appeals in San Francisco upheld Prop. 69 (on a 2-1 vote). However, a majority of the court's 24 members voted to reconsider the panel's divided ruling. So the matter is now before a special "en banc" court of 11 judges.
The ACLU argues, persuasively, that the warrantless swabbing of the cheeks of any and everyone arrested for an alleged felony tramples upon the Fourth Amendment's protection of the criminally accused against "unreasonable search and seizure." As such, the ACLU is asking the court to strike down Proposition 69 as unconstitutional.
"Testing those who are actually convicted," ACLU attorney Michael Risher argued before the court, "serves the state's legitimate interests in obtaining samples from proven criminals while avoiding the threats to privacy created by testing everyone arrested, including those who are innocent."
Indeed, California law enforcement authorities arrest some 50,000 people each year on felony charges who are never convicted of a felony. Yet the genetic samples of nonfelons are treated no different than those of felons. All are submitted to the government's DNA database where they are stored in perpetuity.
Unlike fingerprints, also taken at arrest, DNA doesn't merely identify. It reveals intimate hereditary, health and other information.
The state of California's deputy attorney general made a recent appearance before the 9th Circuit during which he expressed support for Prop. 69. Several judges voiced concern that the decision on whether taking a DNA sample is appropriate, as in the case of Haskell, rested with police officers rather than prosecutors or judges.
But from where we sit, the issue is not who decides when DNA is extracted from accused felons but when. Taking a cheek swab before the accused has had his or her day in court makes a mockery of the principle "innocent until proven guilty." After a conviction, however, collecting a genetic sample is perfectly acceptable, even to civil libertarians.