When the Supreme Court decided on Monday, in Maryland v. King, that persons arrested but not yet convicted for serious crimes could be required to give a DNA sample, some reacted with concern. Justice Antonin Scalia filed an angry dissent.
DNA sampling is the modern fingerprint.
The similarity between arrest DNA sampling and fingerprinting is so obvious that Justice Scalia spent much of his melodramatic opinion trying to undermine the analogy. He insists fingerprints are taken more for identification than crime investigation, ignoring the FBI's statement that one of the purposes for its national fingerprint database is to solve and prevent crime. Nationwide, the FBI system matches crime scene fingerprints to its database of arrest fingerprints 50,000 times every year.
The Fourth Amendment protects against "unreasonable searches and seizures." How is crime solving with arrest DNA samples more unreasonable than doing the same with arrest fingerprints, or mugshots?
A DNA sample provides more accurate identification than photographs, fingerprints, or any other system, without any greater intrusion. It is less of a physical imposition than taking fingerprints, requires less time, and causes no pain. A cotton swab (or a device similar to a Popsicle stick) is rubbed on the inside of the cheek for a few seconds, collecting cells that slough off naturally. One police training video shows the process taking eight seconds far less time than dentists recommend you spend brushing your teeth. Private companies market DNA tests for family or genealogy research with videos of children smiling during cheek swab sampling.
We accept that arrested persons booked in jail are subject to a variety of privacy invasions not just fingerprinting and photographing, but also disrobing and strip searching, far more intrusive and demeaning than a few seconds with a cotton swab.
Opponents claim that with a DNA sample, you are giving over not just identity, but your whole genetic makeup private information about inherited traits, diseases and so on. But arrest DNA samples are only tested for 13 specific genes with no known biological purpose or effect. DNA collection laws make it a crime to use the sample for any other purpose.
In spite of these protections, some fret there might still be misuse of the DNA data. Yet no responsible person suggests that we take away all guns from police officers because of the rare incidents when they are misused.
In over 15 years of arrestee DNA sampling, extending now to 28 states, with more than 1.4 million samples taken, opponents cannot cite a single documented case of misuse of the data.
So is the minor intrusion of arrest DNA sampling worth it? Ask seven women in the Tacoma area, victims of serial rapist Anthony Dias. In July 2005, Dias was arrested on suspicion a felony, then released on bail. One month later he committed his first rape. If a DNA sample had been on file from the July arrest, he could have been identified as a rapist with that August attack, and arrested at that point. But Washington had no arrest DNA collection law, so no DNA sample was on file. For more than two months, Dias continued, entering homes and raping more victims, the last a pair of sisters, 13 and 15 years old, attacked while their mother was tied up, unable to help.
Consider a study conducted by the city of Chicago in 2005, analyzing the records of eight felons during a time when Illinois did not have arrest DNA sampling. The study found that if there had been arrest DNA sampling for those eight offenders, 60 violent crimes, including 22 murders and 30 rapes, could have been prevented.
DNA saves victims and saves lives. A few painless seconds with a cotton swab are worth it.
Jan Scully is the Sacramento County district attorney.