Civil rights experts and privacy advocates say the Supreme Court’s 5-4 decision to approve DNA sampling during arrests for “serious” crimes will disproportionately impact minorities.
Larry Gibson, law professor at the University Of Maryland School of Law, said he was disappointed with the Supreme Court’s decision in the ruling on Maryland’s DNA collection law. He said minorities could be negatively impacted by the ruling based on the continued use of racial profiling by law enforcement officers against people of color.
Meredith Curtis, spokesperson for American Civil Liberties Union of Maryland, agrees.
“There is a disproportionately high number of minorities who are arrested and you would have a database full of minorities,” said Curtis. “There is something intrinsically wrong with that.”
Over the first three years of implementation, the state has extracted DNA samples from more than 33,000 men in Maryland; 61 percent of those men are African American.
The Supreme Court ruling reverses a Maryland Court of Appeals ruling in Maryland v. King, which nullified the conviction and life sentence of Jay Alonzo King in a 2003 rape case. King was arrested in Wicomico County in April 2009 on assault charges. DNA evidence taken during his arrest then connected him to the 2003 rape.
The ACLU-MD, Maryland NAACP and the Legislative Black Caucus were instrumental in lobbying for a contingency in the 2009 Maryland DNA collection law, which placed limits on DNA swabbing only on those arrested for serious crimes including murder, rape, first-degree assault, kidnapping, arson sexual assault and other similar crimes.
In the majority opinion by the court, Justice Anthony Kennedy compared the DNA sampling to other methods of identifying offenders such as fingerprinting.
“DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” said Kennedy. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Justice Antonin Scalia wrote a dissent, stating the ruling will create a precedent for abuse in law enforcement powers leading to increased DNA testing in violation of the Constitution’s amendment against unreasonable searches.
“Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” said Scalia. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”
There are currently 26 states with laws allowing for the collection of DNA of those arrested for felonies and more serious crimes. In California, law enforcement agents can take DNA from anyone arrested with a felony. The samples are then uploaded to a national federal government database where they are cross-referenced with DNA in unsolved cases.
In the first three years of the program in Maryland, less than 20 percent of the DNA matches ran through the database resulted in convictions of crimes.
A. Dwight Pettit, a Baltimore attorney who specializes in constitutional law, said the Supreme Court’s ruling will have a huge impact on minorities.
“I think anytime the Supreme Court takes away or lessens constitutional protection it automatically impacts minorities,” said Pettit. “Since we’re the highest number of people being impacted by the criminal justice system, we’re the ones who need the most Constitutional protection.”
Pettit said the lessening of the protections of the fourth amendment is the beginning of the erosion of civil rights, along with other rulings which lessened the public’s Miranda Rights. He said Blacks are disproportionately stopped because of racial profiling than any other race.
“This isn’t a war or crime or a war on drugs; this is a war on us.”
Attorney General Doug Gansler said he disagrees with notions that the ruling will adversely impact people of color, calling the Supreme Court ruling a victory.
“I would think African Americans would think this is a great law,” Gansler told the AFRO following the Supreme Court ruling. “Before we were relying more on witnesses and there are inconsistencies with eyewitness testimony. Now we will be able to tell who committed the crime and who did not.”
Gansler said extracting DNA samplings is the same as cross-referencing by fingerprinting or mug shots. He said the computer analyzing the DNA would not be biased to the ethnicity or race of the person being cross-referenced. He continued that if the person is not convicted of the crime, their DNA evidence would be destroyed.
NAACP Baltimore branch President Tessa Hill-Aston said she is leery about DNA sampling, but believes it can help Blacks as long as it is not abused.
“I think DNA is a good thing in helping with freeing people who have been wrongfully accused and are facing the death penalty,” said Hill-Aston. “It has been instrumental in helping to free people of color.”
She continued that there has to be a watchdog power to ensure the rights of citizens are not abused with DNA sampling.
“We have to be watchful and pay attention. Right now they are just arresting based on serious crimes, but you have to make sure there is no abuse of power.”