Earlier this month, we noted that Colorado lawmakers are considering an expansion of the state’s criminal DNA database. In addition to collecting samples from individuals convicted of felonies, Colorado may opt to collect samples from individuals convicted of misdemeanors. Many civil liberties experts believe that such a measure would infringe too greatly on the privacy of low-level offenders. And unfortunately, the next step Colorado could seek to take would be to obtain samples from individuals who have been arrested but not yet convicted of any crime.
This critical criminal defense issue is currently being considered by the Supreme Court. Though the Court supports measures designed to aid law enforcement in executing their duties effectively, the Court is also charged with upholding the protections that the Constitution provides.
The justices are currently charged with determining whether upon-arrest DNA collection practices are unconstitutional. Specifically, civil liberties experts are concerned that such practices violate the Fourth Amendment’s prohibition on unreasonable search and seizure.
DNA collection practices upon conviction are an invasion of privacy that is challenging enough to justify. Taking genetic samples from persons who have yet to be tried and convicted with adequate due process is almost unfathomable. Nevertheless, the Court may ultimately decide to allow Maryland and other states to engage in these practices.
In a narrow view of the issue, Justice Alito asked plainly during oral arguments, “Why isn’t this the fingerprinting of the 21st century?” Quite simply, because a person’s fingerprint cannot be used in the ways that a person’s DNA can. DNA is not a simple identifying marker but a blueprint of a person’s very biological being.
Source: New York Times, “Justices Wrestle Over Allowing DNA Sampling at Time of Arrest,” Adam Liptak, Feb. 26, 2013