New York governor Eliot Spitzer has proposed an expansion to the State’s DNA database. In its original form, the program took DNA samples from incarcerated criminals who had been convicted of certain sexual or violent crimes. The program made sense as a way to both solve old crimes and deter new crimes – the hope being that convicted felons, especially those found guilty of rape, would think again before perpetrating another heinous act. But the expanded program goes far beyond the sensible roots.
The new program would take DNA samples from any person convicted of a misdemeanor. Been nailed for petty fraud? Or perhaps smoking a joint at that reggae show you saw in the park? Well, New York wants to take and store some of your most personal genetice code.
The Second Circuit blessed the original program under the “special needs” exception to the Fourth Amendment. While I’ll talk more about the special needs exception and how it’s being used later, the important thing to know is that it allows government searches and seizures even where there is no particularized suspicion and the government is unable to obtain a warrant (both normally required under Fourth Amendment case law). The court recognized, when looking at the original program, that the crime control interests were high in taking DNA samples from violent criminals and that the privacy interests were low for those people already incarcerated.
We should be wary whenever the government tries to expand its police powers. Mr. Spitzer’s proposed expansion would go far beyond the concerns originally addressed by the Second Circuit, and would take highly personal information from people many of us do not consider to be a real threat to society. While those who support the expansion tout not only the benefit to prosecuting crimes, but also the benefits that would be gained by people trying to prove their innocence, this argument is a red herring: nothing under current law prevents the innocent from voluntarily handing over his genetic information to help exonerate himself.
The Bill of Rights generally, and the Fourth Amendment specifically, were passed to safeguard individual privacy and autonomy before a highly powerful government. We should not idly allow the rollback of these protections under the auspices law enforcement needs.
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