DNA bill would turn basic criminal justice principle on its head

June 9, 2010

Click here to view and here to listen to Daren Bakst discussing this Spotlight report.

RALEIGH — A bill requiring North Carolina law enforcement agencies to collect DNA samples from people arrested for certain felonies would turn a basic principle of criminal justice on its head. That’s the conclusion the John Locke Foundation’s legal expert reaches in urging state lawmakers to reject House Bill 1403.

“The fundamental tenet of our criminal justice system is that individuals are presumed innocent until proven guilty,” said Daren Bakst, JLF Director of Legal and Regulatory Studies. “If lawmakers approve this bill, North Carolina would treat innocent people as if they’re guilty. The state would require for the first time that innocent people provide DNA to the government.”

Bakst’s latest Spotlight report spells out problems with H.B. 1403. The state would collect and maintain DNA samples, and data from those samples would go into state and national databases. “The bill runs counter to the principles of the American justice system, violates individual privacy and principles of liberty, and likely is unconstitutional,” he said.

State law already enables law enforcement agencies to collect DNA samples from convicted felons, Bakst said. “When someone has been convicted of a crime, there is a reasonable argument that the individual has lost certain expectations of privacy.”

Arrestees are different, Bakst argues in his report. “Current law requires law enforcement to have a warrant or consent to collect DNA from arrestees,” he said. “H.B. 1403 would require law enforcement to collect DNA with no warrant.”

That change should disturb lawmakers, Bakst said. “Getting arrested is not conclusive evidence of wrongdoing,” he said. “Each arrestee should be presumed as innocent as a person who never has been arrested. To assume otherwise is to believe that getting arrested is some evidence of guilt, which is exactly the opposite of how our justice system is supposed to work.”

“If we collect DNA from some innocent people, there really would be no basis for blocking government from collecting DNA from every citizen,” Bakst added. “The U.S. Department of Justice’s National Institute of Justice has warned that DNA collection from the general public was a distinct possibility.”

Some people say that those who stay out of trouble would have nothing to worry about in terms of DNA collection, Bakst said. “That’s incorrect — many honest, law-abiding citizens get arrested.”

Bakst rejects arguments comparing DNA samples to fingerprint collection. “Fingerprints are used solely for identification purposes,” he said. “DNA provides much more information. DNA can identify a person’s susceptibility to diseases, predisposition to behaviors, and other very personal insights that individuals do not even know about themselves.”

The federal government has a long history of collecting personal information from Americans and using it for “horrible purposes,” Bakst said. “One of the best examples is the Roosevelt administration using Census Bureau data on Japanese-Americans to help round them up and put them into internment camps during World War II,” he said. “Even today, critics have raised concerns about the government’s use of data mining to gather information about Americans.”

Even if the government never misuses DNA data, there’s another “more likely problem,” Bakst said. “The government has a poor record of protecting sensitive personal information,” he said. “More than 26 million veterans had their sensitive personal information placed at risk when a Department of Veterans Affairs employee put that data on a home laptop that was subsequently stolen. A congressional report identified 788 incidents in three years in which personally identifiable information was lost or stolen from a federal department or agency.”

Innocent arrestees would have a hard time getting their DNA information out of government hands, Bakst said. “An innocent citizen jumping through some hoops and navigating red tape properly could have his DNA samples destroyed and the information removed from the state database,” he said. “But nothing in the bill expressly clarifies that the data will be removed from the national database. This is just assumed, which is inappropriate when dealing with such sensitive data.”

Critics of an overly large government should not support H.B. 1403, Bakst said. “A person cannot simultaneously be against big government and in favor of Big Brother,” he said. “If information is power, which it is, the government will be far more powerful when it’s armed with DNA information.”

It’s likely that the North Carolina legislation also violates people’s Fourth Amendment rights, Bakst said. “If courts properly recognize that an arrest does not drastically lessen a person’s privacy expectations when it comes to DNA collection, and if the courts understand the difference between fingerprinting and DNA, then taking DNA from arrestees would be found unconstitutional.”

Lawmakers should resist the arguments from supporters of H.B. 1403, Bakst said. “Benjamin Franklin said, ‘Anyone who trades liberty for security deserves neither liberty nor security,'” Bakst said. “The legislature needs to remember these important words and choose liberty.”

Daren Bakst’s Spotlight report, “Taking DNA From the Innocent: A Major Step Toward Big Brother,” is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or [email protected]. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or [email protected].