(The Center Square) – Since the advent of DNA testing, law enforcement agencies have been able to prosecute crimes – and exonerate the wrongly convicted – with greater certainty than ever before.
Though not perfect, genetic technology has brought justice to scores of violent crime victims and their families, and with them has come what the American Civil Liberties Union called a “Pandora’s box” of constitutional privacy issues.
In the 2013 U.S. Supreme Court case Maryland v. King, justices narrowly ruled that it was not a violation of a person’s Fourth Amendment rights to collect a DNA sample upon their arrest. In keeping with that ruling, 34 states and the federal government now have laws on the books authorizing DNA collection upon arrest for certain crimes.
Once taken, DNA samples are processed in a laboratory where they are reduced down to a series of numbers which are then linked to a unique identifier within the Combined DNA Index System, or CODIS. That identifier contains no additional personal information.
If someone is arrested for one crime and their DNA matches the evidence from another, the justice process begins for the matching crimes, starting with a second DNA swab to confirm.
Sen. Frank Farry, R-Langhorne, would like to see Pennsylvania join other states in collecting samples from a much wider group of people with Senate Bill 912.
The legislation would require the collection of DNA samples from “persons arrested for serious violent or sexual crimes” as well as those convicted of criminal homicide. However, the bill goes well beyond felonies, enumerating a series of misdemeanors including theft and writing bad checks in its list of qualifying offenses.
Despite long odds in the House, the lower chamber’s Judiciary Committee held an informational hearing Wednesday where it heard testimony from both supporters and opponents of the Senate bill and similar legislation.
Among them was Ashley Spence of the DNA Justice Project.
While a sophomore at Arizona State University, Spence was brutally raped and beaten over the course of hours during a home invasion. Years later, a man was arrested for an attempted break-in in California, where a collection law is on the books. His DNA matched that of her attacker.
Spence wasn’t alone. The attacker’s DNA matched crimes in several other states, and police found a collection of women’s underwear and identification cards from around the world at his home.
Since justice was served in her case, Spence has pushed for legislation requiring DNA collection across the country, including the commonwealth.
“Here’s the truth as the law stands in Pennsylvania today,” said Spence. “Had my perpetrator been arrested, you would not have swabbed his cheek, and he would still be free today to rape and harm and terrorize his next victims.”
In other cases, DNA evidence has brought freedom to those wrongfully convicted.
James Tillman served more than 18 years in prison for a rape that occurred in 1988. In 2006, DNA evidence from the victim’s rape kit exonerated Tillman and led to the conviction of a man who was currently serving time for another crime.
“Every time someone is wrongfully accused, a guilty party walks free,” said Tillman. “We owe it to ourselves, to our aunts, cousins, mothers, daughters to not allow a handful of bad actors in our community to make life a living nightmare for others.”
For Tillman, giving a DNA sample is simple.
He told The Center Square, “Take my DNA because if I have nothing to hide and I know that the state is going to look after the DNA.”
That’s where the issue gets thornier for opponents to the law. They say that regardless of how many lives may be saved by DNA collection, it represents a dangerous step toward unlawful search and seizure. They say the bar for obtaining a search warrant should be maintained.
As to the Supreme Court’s ruling to the contrary, Elizabeth Randol, legislative director of the Pennsylvania ACLU, said “Just because the state is permitted to do something doesn’t mean it should,” invoking Justice Antonin Scalia who passionately dissented.
States which have DNA collection on the books have leadership that covers the political spectrum. Opposition does as well. Randol pointed to previous no votes from Republican Sens. Cris Dush of Brookville and Dawn Keefer of Dillsburg. She also asked the committee to put on their “Libertarian hats” to consider the issue.
“Our most personal and private genetic data would be available not just in Pennsylvania to state and local authorities, but also accessible to federal authorities and uploaded into federal databases, regardless of who’s at the helm,” said Randol. “And the rapid pace of technological and scientific advances makes it difficult to imagine all the ways in which the government could gather, analyze, track, categorize, and surveille us.”
Advocates say that people misunderstand the highly secure process. They highlight the security of CODIS, which began in 1990 and went national in 1998. Spence even has her DNA code printed on her business cards to demonstrate the harmlessness of the data housed by the government, distinct from DNA analysis done by medical and genealogical companies.
In fact, it’s so secure that Senior Fellow and Director at the Center on Public Safety and Justice, NORC at the University of Chicago, Dr. John Roman said “Law enforcement and labs all around the country are forever pushing the FBI to loosen their restrictions and regulations on the way evidence is processed in the system because it is so tightly regulated and so restricted.”
That the FBI has fended off those pushes in the past, however, does not influence whether technologies, uses, and policies may change in the future. As an example, Radol pointed to DNA collection by Immigrations and Customs Enforcement on children as young as four.
“It’s absolutely a concern that the Trump administration or future administrations could seek to loosen FBI restrictions, which is why our state legislature must strengthen safeguards around the most potent private information of Pennsylvanians — our genetic information,” Rep. Chris Rabb, D-Philadelphia, told The Center Square.
To that end, attorney and Rep. Emily Kinkead, D-Bellevue, pointed to her HB 1179, which would give individuals ownership rights to their DNA, preventing overreach in the private sector. She is among a growing body of legislators showing concern for where new technologies – and the potential to abuse them – may take us.
“I think one person wrongly convicted for a crime is one too many,” said Kinkead. “But we have to balance that with the inherent privacy rights that we are guaranteed under the Fourth Amendment.”
For Tillman, the future is bright and progress inevitable, thanks to DNA collection and technological innovations.
“It’s a tool,” said Tillman. “Times are changing. Technology is changing. AI is here.”
