Friday Interview: Mandatory DNA Collection from Arrestees Panned

One of the fundamental tenets of our justice system is that each of us is innocent until proven guilty. But a new state law approved this summer turns that premise on its head when it comes to the collection of DNA. Before the legislation’s final approval, Daren Bakst, director of legal and regulatory studies for the John Locke Foundation, discussed mandatory DNA collection from arrestees during a conservation with Donna Martinez for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

Martinez: So right now, if I’m arrested, do they collect my DNA?

Bakst: No, not with you, Donna. They wouldn’t collect your DNA. … Now if you were a convicted felon, they can collect the DNA. But if you’re just an arrestee — they just arrested you — then no, they can’t.

Martinez: So right now you have to be convicted of particular felonies for the state essentially to come and take your DNA. Then what do they do with it?

Bakst: They put it into a state database, and they also share it with a national database so that other states can access it, and the federal government has access to that DNA information.

Martinez: So does that mean if, for example, I’m convicted of a felony, they run my DNA, and they find out that I’m a match to, let’s say, a bank robbery in Ohio, suddenly they’ve got me for that?

Bakst: They could, most likely. That assumes that that DNA evidence by itself would convict you. But yes, it would be a good indication that you probably robbed that bank, Donna.

Martinez: OK, so that’s how it works right now. But House Bill 1403 would really turn this on its head. What would it do?

Bakst: The concern is that it would collect DNA for people that are just arrested. It doesn’t distinguish between being somebody who’s convicted of a crime; you can be innocent of something if you’re arrested. A lot of people that get arrested are going to wind up being innocent or found innocent. The charges are dropped, or they are not convicted. And that’s the problem — that you have a lot of innocent people whose DNA is going to be in the state database and also shared with the federal government. You know, it flips the concept of innocent before proven guilty on its head because there’s no reason why somebody who is arrested should have less protection than you and I who are not arrested. And getting arrested is not some type of event that signals that I’m guilty of something. It simply means I’ve been arrested.

Martinez: Well, wouldn’t that be the same, or would it not — you’re an attorney, maybe you can enlighten us — would it be the same as a government official, law enforcement, stopping me on the street and taking my DNA?

Bakst: Well, I hope that law enforcement is not stopping anybody in the street and collecting DNA. That would be disturbing if they are doing that. If you know about that, you ought to report that.

Martinez: But my point being [that] I would be innocent if I was walking on the street. If I’ve been arrested but not convicted, I’m still legally innocent.

Bakst: Yes, right. I mean it’s the same thing. For people to think, “Oh, but you got arrested, and somehow you’re a worse person, therefore you have less expectation of privacy, therefore we should be able to collect your DNA,” is incorrect because so many people, first of all, are found out — we find that they’re innocent. Not to mention, again, the fundamental tenet of our criminal justice system is that you are innocent. You’re just as innocent as that person who is just being randomly searched in the car.

Martinez: Attorney General Roy Cooper is the primary advocate for this, and a lot of folks are saying this is a law-and-order issue. And then I’ve heard and read a number of people say, “You know what, this is really no different from, say, an employer requiring a drug test, and if you don’t have anything to hide, you shouldn’t be worried about this.” Civil libertarians like yourself are disagreeing.

Bakst: Well, boy, where do I start? On the employer issue, one, the employer doesn’t have the guns to force you to do anything. So that’s a clear distinction. And in terms of, if you don’t do anything wrong, you have nothing to be concerned about, well, again, people that are arrested are law-abiding, honest citizens. Sometimes they find themselves with some bad luck, and they get arrested. It doesn’t mean they did anything wrong. … You do have something to be concerned about. And it doesn’t matter if those people — once the government has the DNA, they should never have that information for innocent people.

Martinez: I have also heard and read the argument that, “Well, you know, if you’re arrested, apparently you get fingerprinted.” Would that be any different from having your DNA sample taken?

Bakst: A fingerprint just simply says that Donna Martinez is Donna Martinez. It doesn’t let me know what diseases you’re susceptible to, what type of behaviors you’re prone to engage in, etc. Almost everything about you, I’d be able to learn from a DNA sample. I can’t learn that from a fingerprint. So it’s completely different.

Martinez: Can North Carolinians be assured that if their DNA then goes into these databases, that it’s going to be kept private — only law enforcement would be able to access this?

Bakst: Look, there’s no way to assure that the government won’t abuse information — misuse it. In the past, the United States government has used census data to help with the Japanese internment, for example, to round up 110,000 Japanese. But it’s not simply government misuse that we’re worried about. It’s also the government protecting the information from people trying to access it improperly, or the government employee being sloppy with the information. For example, in 2006, a Department of Veterans Affairs employee took a diskette home with data on 26.5 million veterans [and] put the diskette into the laptop. The laptop contained sensitive information on the veterans. The laptop gets stolen from the person’s house. So then you’ve got personal information on 26 million veterans that are at risk because of the sloppy behavior by the government. That is a common theme throughout the federal government. They lose data all the time. Imagine having this DNA data out there in the public.

Martinez: Daren, you have been writing about this, and you also have been working with the ACLU. They have concerns about this as well. What do you share in common?

Bakst: Well, basically, we’re on the same page on this issue. We’re concerned. Both organizations, well, me personally and the ACLU agree that this would flip the whole idea of presumed innocent before being proven guilty on its head. It’s inappropriate. It’s likely unconstitutional. And, where we can kind of work together on issues of mutual interest, we’re going to. And that’s what we did.

Martinez: [Could there be] court challenges to this?

Bakst: I’d imagine so. I think so. It is one of those issues where there’s not a lot of precedent on whether or not the government can do this. There is precedent that the government can collect DNA from felons. But as it relates to just people being arrested, it’s not as clear. There are two appellate courts, federal circuit courts of appeal, that are reviewing this right now, and we’ll see what happens.