We Have to Ask: Should We, Just Because We May?

This month the Supreme Court ruled that police may continue to take DNA from all arrested persons.  This is the latest in a long series of rulings in which the Court has granted police wide legal latitude in operations.  Two examples come immediately to mind:

  • The Court has set essentially unlimited parameters on motorized pursuits.
  • It upheld the authority of police to thermal-image homes at random and then obtain search warrants for pot growing based on probable cause created in the random imaging effort.

Now, comes DNA.  We have to ask the question: Should we, just because we can?

The question is a classic “right v. right” situation.  Prof. Joseph Badaracco writes about such situations in his book, Defining Moments.  Badarraco’s is a common sense understanding of the nature of most decisions.  Police officers and police executives easily make right v. wrong decisions.  The hard ones are the questions that demand both legal and moral consideration. The decision could go in two or more directions and still be right.  It is right to choose option A, but it is also right to choose option B, and maybe C, D and E.  Police make these sorts of choices constantly, at the individual level on the street and at the meta level of big policies such as search and seizure.  Most frequently, police have to consider questions of legality and morality.  It may be legal to do something, but is is the best choice morally?

For example, it may be legal to do blanket stop-and-frisk operations in identified red-hot spots.  But is it moral?  And moral dimensions influence effectiveness.  If we build up bad faith in the longer term, what is the actual value of a tactic in the short term?

This moral dimension will only become more important.  As institution after institution in our society surrenders its moral authority to expedience, greed or other self-centered interest it becomes more important for police executives to safeguard the legitimacy of the police.  A functioning republican democracy needs a police service seen as legitimate in the eyes of an increasingly diverse community.

On the question of DNA gathering, we have to weigh the moral dimensions of privacy and legality.  Clearly, a person in police custody in a police building has zero expectations of privacy in terms of maintaining his anonymity and anything he has on his person.  But taking DNA is invasive, in a way that fingerprinting is not.  Even a body cavity search, as repugnant as it must be subject and searcher alike,  is not as invasive as DNA collecting.  The invasion, though legal, raises the moral bar.

The difficulty of processing DNA also raises the effectiveness question.

I don’t believe there is an open and shut case on either side of this question.   Police executives in my opinion should take the opportunity think about this in consultation with other stakeholders.  It’s an opportunity to talk seriously with community leaders and professional colleagues about a serious moral question.


After the Supreme Court’s DNA decision, what is the future of criminal justice?
By Max Ehrenfreund, Updated: June 4, 2013 Washington Post

“Technological innovation, from photography to fingerprinting, has long made identifying suspects easier for law enforcement. DNA testing is no more than the latest development in that progression, according to a decision by the Supreme Court on Monday (June 3).

As The Post’s Robert Barnes reports, the Court’s decision will allow police to continue what has become a routine in many states: using cheek swabs to take DNA from the people they arrest.

‘Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees,’ Justice Anthony Kennedy wrote for the majority.

DNA testing has led to the exoneration of more than 300 people wrongly convicted of crimes. Yet the technology is far from fulfilling its promise of aiding law enforcement to identify criminals and letting the innocent go free. A Department of Justice study estimated that around 900,000 requests for biological screening, mostly DNA testing, were backlogged nationally at the end of 2009, the most recent year for which data is available. Meanwhile, large numbers of kits from routine arrests may be making the problem worse, argued Brandon Garrett, a professor at University of Virginia School of Law.

‘As taking more DNA from arrestees has increased, the backlogs have increased at the expense of testing DNA from actual crime scenes,’ he said.

Garrett also said that simply adding a DNA sample from everyone who is arrested might even make it harder for police to identify criminals, increasing the likelihood of false positives without adding any perpetrators to the system.

‘A lot of innocent people will have their DNA in these databases,’ he said. ‘That dilutes the databases and weakens their power.’ He argued that since many criminals have prior convictions, taking samples only from convicts would be more efficient. The state’s constitutional authority to take samples from convicts is not disputed.

Barry Scheck, one of the directors of the Innocence Project, agreed. The organization helps wrongfully convicted people clear their names through DNA analysis.

‘We’re all in favor of DNA databanks, and using them to exonerate the innocent and apprehend the guilty,’ he said. Scheck and two coauthors wrote a book on the subject, and Kennedy quoted them on the value of DNA testing in his opinion.

But Scheck, who disagrees with the ruling, said he worried the court’s reasoning could open the way for large numbers of minor offenders’ DNA profiles to be pointlessly added to databases.

‘What’s most important is that when you have an unsolved crime, within 7-10 days of the commission of that crime, it [DNA evidence] should be uploaded to the forensic database,’ he said.

In a friend-of-the-court brief he filed with Erin Murphy of New York University School of Law, UVA’s Garrett argued that for these reasons, the government’s interest in acquiring DNA from arrestees is not strong enough to outweigh their protection under the Fourth Amendment.

The court disagreed, but states are still free to decide whether they’ll use the authority that Monday’s decision secured for them. The ruling is not the end of the discussion about how DNA testing can make law enforcement fairer and more effective.”

© The Washington Post Company


About stephenomeara

My name is Jim Jordan. I have had the privilege of working with the Boston Police Department and hundreds more departments over my nearly 30-year career in police administration and city government. I am now teaching and consulting independently at www.sergeantsleadership.org. I have learned the best of what I know from the thousands of smart, dedicated and ethical police personnel and scholars who have guided me along the way. My address is named for the great Reform commissioner of the Boston Police at the turn of the 20th century. Commissioner O'Meara died just a short while before the Strike in 1919. He was replaced by a vicious puppet (of Gov. Coolidge) named Edwin U. Curtis. Had O'Meara lived events may have turned out quite differently.
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