A panel of 11 judges from the Ninth Circuit Court of Appeals held that officers in California would be allowed to continue collecting DNA from those arrested for felonies regardless of whether they are ever formally charged with crimes. The judges upheld a lower court ruling that refused to end the practice.
Many civil rights advocates, including groups like the ACLU, had hoped the Ninth Circuit would decide differently. Instead, the current ruling appears to have fallen in line with the U.S. Supreme Court decision last year in Maryland v. King, which found that DNA swabs were similar to fingerprints and therefore an appropriate part of Maryland’s law enforcement booking process.
In this case, the Ninth Circuit found that the state’s decision to swab suspects for DNA who are arrested for felony crimes is constitutional, even if those suspects are never actually charged or eventually have their charges dropped. The Ninth Circuit also said that law enforcement officials are allowed to continue to store the genetic material in a statewide criminal database, an especially alarming decision to some.
In this case, the ACLU and others challenging the California practice argued that the program was far more intrusive than the one the U.S. Supreme Court considered in Maryland. In that case, Maryland’s system automatically destroys all samples for those who are never convicted for their crimes. In California, the samples will remain in the system unless and until the suspect files for and receives an official expungement order.
The number of people that could have their information stored into a database despite never having been convicted of a serious crime is surprisingly large. In California, more than 300,000 people are arrested each year and charged with felonies. Of this number, about a third are never convicted. That means around 100,000 people every year could have their genetic information stored in a criminal database that can be accessed by law enforcement authorities across the state.
Though California officials claim that 96 percent of all expungement requests are granted, others point out that only a tiny fraction of those that are able to apply for an expungement do so. The reality is that it is a tedious and time-consuming process that few people understand. Many would need to hire a lawyer to successfully navigate the process, something that deters many people from even trying.
The ACLU says that it is considering filing a more narrow challenge to the practice. Initially, it asked the Court for a complete injunction against the DNA swabbing of all suspects. After the Ninth Circuit rejected this request, the ACLU says it is now considering asking for an injunction against the sampling against those arrested for relatively minor crimes and who are never formally charged.
Source: “Court upholds practice of swabbing individuals for DNA upon arrest,” by Maura Dolan, published at LATimes.com.
