The Supreme Court next year will weigh in on the growing national debate over the collection and use of genetic material from criminal suspects when it considers a case involving Maryland’s DNA law, the justices announced earlier this month.

More than half of U.S. states have laws that allow police to cull DNA from persons who are suspected of violent crime, to search for potential matches to other criminal offenses.

But the laws are controversial. Law enforcement officials argue that DNA sampling is an invaluable crime-fighting tool. According to Maryland officials, in the first two years of the program’s implementation, matches from arrestee swabs resulted in 58 criminal prosecutions.

“We applaud the decision by the Supreme Court to review Maryland’s case regarding DNA collection,” said Gov. Martin O’Malley in a prepared statement. “Allowing law enforcement to collect DNA samples from offenders charged with serious crimes is absolutely critical to our efforts to continue driving down crime in Maryland and bolsters our efforts to resolve open investigations and bring them to a resolution — providing victims long-deserved closure.”

But some in the legal community, along with civil rights activists, contend that the practice violates the accused’s right to privacy and constitutes a warrantless search and seizure. And, according to groups like the ACLU and the NAACP, minorities are disproportionately represented in such DNA databases, creating occasion for further disparity in the justice system.

“Suspects are supposed to be innocent until proven guilty, and we are concerned that this collection of DNA is unconstitutional and a human rights violation,” said Jeremy Gruber, president of the Massachusetts-based nonprofit Council for Responsible Genetics, which plans to file a petition in the Supreme Court hearing. “The Supreme Court has taken too long to review these practices.”

Meanwhile, jurists across the country remain divided on the laws’ legality.
The issue is over a Maryland case Maryland v. King, which the high court is expected to review early next year. The DNA Collection Act, Gov. Martin O’Malley’s marquee anti-crime initiative that became effective in 2009, sanctioned police to take DNA samples not only from convicted criminals—as preceding law dictated—but also those accused, even if not convicted, of violent crime and burglary.

Alonzo Jay King Jr., now 29, challenged that law when police used a DNA swab taken from him during his April 2009 arrest on an assault charge to tie him to a 2003 rape case in Salisbury. King, who was represented by the Maryland Public Defender’s office, was convicted and sentenced to life without parole. Then in April of this year, the Maryland Court of Appeals overturned his 2010 conviction, saying the use of his DNA violated his constitutional rights.

“Under a balancing test that weighs an individual’s expectation of privacy against government interests, an arrestee’s expectation of privacy to be free from warrantless, suspicionless searches of his/her biological material outweighed, on the facts of this case, the government’s purported interest in using a secondary method to identify King, when, in actuality, the of the biological material was intended by the State to be used for general investigatory purposes,” the opinion read.

But, in late July, Chief Justice John Roberts issued a temporary stay of the April 24 state appellate court ruling decision, which had overturned King’s conviction and sent the case back to trial court.

In his opinion, Roberts noted that the state appeals court ruling clashed with decisions made by other courts, including the federal appeals courts for the third and ninth circuits and the Virginia Supreme Court, which had upheld statutes similar to Maryland’s DNA Collection Act.
The chief justice also championed the crime-fighting benefits of the law.

“Collecting DNA from individuals arrested for violent felonies provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population,” Roberts wrote. “Crimes for which DNA evidence is implicated tend to be serious, and serious crimes cause serious injuries. That Maryland may not employ a duly enacted statute to help prevent these injuries constitutes irreparable harm.”

The statement seems to suggest what side Roberts may take when the Supreme Court hears Maryland v. King next year. But that, by no means, predicts the case’s outcome. And advocates on both sides seem confident that their arguments will prevail.

“We are pleased by this decision and look forward to the opportunity to defend this important crime-fighting tool before the nation’s highest court,” Maryland Attorney General Douglas F. Gansler said in a prepared statement on Nov. 9.

The Maryland Office of the Public Defender will offer opposing arguments before the Supreme Court. And Stephen B. Mercer, who heads the public defender’s forensics division, said he, too, is looking forward to having the justices consider the case.

“We are confident that when the court examines the merits of the case, it will agree that persons who are presumed to be innocent should not be subject to the warrantless seizure and indefinite retention of their intensely personal genetic information,” Mercer told Reuters. 

Zenitha Prince

Special to the AFRO