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DNA databases: another layer of discrimination in criminal law?

This week, the 9th Circuit Court of Appeals is holding a rare re-hearing on the constitutionality of collecting the DNA profiles of arrestees into databases intended to solve future crimes. The appellate court has heard the case before but decided to rehear it in light of a U.S. Supreme Court ruling on a similar Maryland law this June.

This case involves a California law allowing law enforcement to collect and keep DNA samples from anyone arrested for felonies or certain other crimes. After a peace protestor was arrested in 2009 for allegedly obstructing a police officer, she challenged the collection of her DNA as an unconstitutionally unreasonable search and seizure.

“A person's entire genetic makeup,” according to a friend-of-the-court brief by San Francisco’s Electronic Frontier Foundation, “…can reveal where our ancestors came from, who we are related to, whether we are likely to suffer from genetically-determined diseases, and possibly even our behavioral tendencies and sexual orientation."

Yet in June, the Supreme Court voted 5 to 4 that the process was no more invasive than fingerprinting and isn’t unconstitutional as long as it is limited to those accused of “serious crimes.” In his dissent, Justice Scalia accused the majority of falsely promising that “entry into a national DNA registry will not befall thee and me” when it will actually mean the massive collection of DNA profiles from countless innocent people.

Facing long odds, the plaintiff and civil liberties groups have brought several new arguments forward to challenge the law’s constitutionality. Among them is that it disproportionately subjects African Americans to false arrest.

Even if the law is constitutional in theory, the groups argue, poor police practices and systemic problems with crime labs across the nation have demonstrably resulted in numerous false arrests based on DNA profiles.

Moreover, the rapidly-changing science of DNA can now identify the family members of those in the database. Should that be done widely, some 17 percent of African Americans would be potentially subject to false arrests, versus only 4 percent of whites.

If true, the database would represent just one more way in which the justice system magnifies the chance that minorities will be drawn into the justice system at far higher rates than whites who engage in identical behavior.

Do you think collection of people’s DNA by the government is a powerful law enforcement tool or a potentially dangerous and discriminatory practice?

Source: Courthouse News Service, “Digital Rights Gives Warning on DNA Law,” Tim Hull, Oct. 31, 2013

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