- The Washington Times - Thursday, February 21, 2013

Science has broken the code of human composition and can read the genetic “fingerprint” unique to each person. The forensic technique of collecting DNA raises serious privacy concerns, however, especially when government demands it with the force of law. The Supreme Court has an opportunity to safeguard this most personal of information and preserve a precious right to privacy.

The high court will hear arguments Tuesday in King v. Maryland, a case challenging the constitutionality of Maryland’s DNA Collection Act. The law enables authorities to take DNA samples from suspects in crimes who have been arrested, but not yet convicted. In the instant case, Alonzo King was arrested in an assault in 2009, and police used a cheek swab to collect a DNA sample. King subsequently pleaded guilty to a lesser charge that did not require the test. Prior to the reduction in charge, however, the swab produced a genetic match with evidence gathered from a sexual-assault case from 2003. Based on further testing, King was charged with rape in the earlier case, convicted and sentenced to life without parole.

King had six prior convictions, so it’s easy to conclude he got what he deserved. Other detainees with no criminal records, however, are similarly subjected to DNA testing prior to a finding of guilt. The practice raises the fundamental question of whether the state violates the Fourth Amendment prohibition of unreasonable search without probable cause when it collects genetic information from suspects before entering them into a government database. It’s particularly troubling that a suspect cleared of wrongdoing nonetheless remains vulnerable to a DNA match in a criminal investigation years later.

While data are impartial, human beings are not. Genetic testing is not foolproof, and wrongful convictions can result from human error or malfeasance. For example, Dwayne Jackson, a Nevada resident, spent nearly four years in prison after a police laboratory technician inadvertently switched his DNA sample with that of another suspect. The act of entering genetic profiles into a data bank raises the odds of a suspect becoming the victim of a false match. Since Virginia became the first state to approve DNA sampling in 2003, 27 other states and the federal government have joined the movement to collect genetic records from detainees not yet convicted.

Genetic testing can also be abused in applications beyond law enforcement. When sampling is performed in medicine for the study of disease, the information is often stored without the names of the test subjects. A paper published in January by the magazine Science showed how anonymous DNA information can be used in some circumstances to identify the subjects. The study’s authors recommended stronger protections for genetic privacy.

When science protects the innocent from the guilty, it’s a welcome addition to our legal process. When forensic technology is applied in loose fashion, however, the innocent can be punished with the guilty. By allowing the collection of DNA samples from only those convicted of a serious crime, the Supreme Court protects a precious constitutional right.

The Washington Times