The General Assembly is currently considering HB1403, "Collecting DNA Sample on Arrest," sponsored by Reps. Wil Neumann (R-Gaston), Pearl Burris-Floyd (R-Gaston), Darrell McCormick (R-Yadkin) and Thom Tillis (R-Mecklenburg). The bill would establish a database of DNA samples - the unique, identifying genetic make-up of an individual - collected at the time suspected felons are arrested. This legislation must be considered philosophically with careful examination of the struggle between liberty and security.
Inevitably, this legislation will cause debate within the conservative movement. Libertarian-leaning conservatives will note potential civil liberties violations while other conservatives will highlight the crime and punishment aspects of the legislation. The debate within the movement is mirrored within the walls of the Civitas Institute and is highlighted in an exchange about HB1403 below.
Security: The legislation offers the potential to close cold cases, which have no hope of being solved without additional DNA evidence. This database will be a highly effective way to identify those who may have escaped justice previously. Civitas polled the issue in February 2010 and 60 percent said they supported the legislation.
Liberty: HB1403 collects DNA samples at the time of arrest prior to indictment or conviction. This legislation, as written, appears to violate the Fourth Amendment, which prohibits unreasonable searches and seizures. Collecting the DNA of an individual who is arrested and not indicted is unreasonable and should require a warrant.
Security: Collecting the DNA of an individual who is arrested and not yet indicted could very well be reasonable if the collected DNA led to the rightful prosecution of the individual for an unsolved crime. The fact that an innocent person's DNA is collected may be worrisome but if the person in question is innocent then he has nothing to fear.
Liberty: Should the state decide to collect DNA samples at the time of arrest, it will tear down a wall of separation between the individual and his government that our Founding Fathers thought important to protect. Criminals may lose their Fourth Amendment rights upon conviction but individuals are innocent until proven guilty and, until convicted, suspects retain those rights.
Security: The average citizen has nothing to fear from this legislation; how many citizens have been arrested for the commission of a crime? This is not to belittle the importance of the rights of the accused, but the advantage this legislation is that it would provide for the preservation of a safe and just society thus it outweighs the possible encroachment on civil liberties.
Liberty: In addition to the $3.6 million price tag on the legislation, the encroachment on civil liberties is unacceptable. The Constitution was not meant to be applied only to the vast majority citizens while others are marginalized at the expense of safety and security. The Bill of Rights protects us all from excessive state power. Benjamin Franklin astutely declared that "those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."
Solving cold cases is a reasonable security argument, but only if it is done right. Unfortunately, that is typically not the case. Rather than using these databases to take a second look at past suspects, they search through trawls of millions of records, then make instant suspects out of whoever happens to match. That may not be such a problem with full DNA matches, where the odds of anyone falsely matching to any non-relative are staggering, but it is quite problematic indeed in older cases where only partial matches can be made. A few years back, a guy in California named John Puckett was convicted of a murder he probably didn't commit, and wasn't even suspected of until a partial DNA match was found in a trawl of over 330,000 convicted sex offenders. Based on that partial match, the odds of any given record falsely matching were a million to one, but since we bought 330,000 lottery tickets, the real odds that *somebody* would falsely match (and that Puckett just happened to be that unlucky somebody) were 1 in 3. But the jury was never told this; in fact, they were not even allowed to know that the database existed at all!
Most would agree that one in three has reasonable doubt written all over it, but the actual odds of Puckett's guilt vs. innocence are likely worse still. After all, given the history of the database, which was relatively new at the time of trial and would not even exist until years after the murder, the odds of a *true* match (i.e., the chances that the killer was in the database to begin with) are probably *worse* than 1 in 3. Meaning, that even if we convicted criminals based on a preponderance of evidence, the jury was very likely hoodwinked into believing the less probable outcome of the match (that the killer was in the database and had therefore registered a true match) rather than the more probable outcome (that someone had falsely matched and charged with a crime he did not commit).
The lame excuse prosecutors and judges typically give for not letting juries know about these huge databases, often with the complicity of innumerate defense attorneys, is that a defendant's mere presence in such a database is so inherently prejudicial (albeit a tad less prejudicial than falsely passing off 1 in 3 odds as though they were a million to one) that juries cannot know about it or they'll falsely convict him of the charged crime. Not so if the database includes everyone who has ever been arrested for anything. Once the database itself loses its incriminating potential, there's no excuse whatsoever not to tell the jury about it.