OKLAHOMA has crept toward the practice of compelling DNA samples from people who are arrested for crimes. The U.S. Supreme Court may allow the state to sprint there instead.
In an opinion early this month, Chief Justice John Roberts said there was “a reasonable probability” the high court would grant a hearing to the state of Maryland, which wants clarity on whether its law allowing DNA samples to be taken from arrestees is constitutional. About two dozen other states have similar laws.
The challenge to Maryland's law came from a man arrested for assault in 2009. His DNA sample matched crime scene evidence from a home invasion and rape several years earlier. The state subsequently charged the man with rape, convicted him and sentenced him to life in prison.
A Maryland appeals court overturned the conviction, saying the man's right to privacy as an arrestee outweighed the state's need to collect his DNA. That ruling has been appealed to the Supreme Court, which could hear the case later this year.
In Oklahoma, DNA samples are taken from convicted felons. Three years ago, lawmakers broadened the scope of the law to include those convicted of various misdemeanors such as driving under the influence, resisting arrest and peeping Tom. Efforts to require that DNA samples are taken for men and women arrested for certain crimes have been unsuccessful.
The 2009 law expanding the list of crimes that compel a DNA sample was often called Juli's Law, in reference to Juli Busken, a University of Oklahoma ballet student who was abducted and murdered in 1996. Years later, a DNA match identified her killer as someone who was in prison for another crime.
The Busken case provided handy political hay for proponents of expanding Oklahoma's law. In signing the bill into law, then-Gov. Brad Henry noted that misdemeanors often lead to violent crimes. “This measure will be a powerful tool in solving such horrific crimes like murder and rape,” he said.
No doubt, DNA testing can help solve, and has, many crimes. It's revolutionized forensic work. Yet we're uncomfortable with compelling someone to provide a DNA sample before guilt has been established.
The argument can be made that if you haven't done anything wrong, you shouldn't have a problem with an officer running a swab along the inside of your cheek. On the other hand, isn't this a country that believes in innocence until proven otherwise?
Supporters of taking DNA from arrestees highlight its successes. Since 2003, Stateline.org reports, DNA samples from arrestees in Virginia have matched forensic evidence in 755 open cases. In New Mexico, arrestee DNA has helped with 200 felony cold cases since 2007. Yet defense attorneys in the Maryland case noted that of the 10,666 samples the state took in 2011, only 19 led to arrests, and nine of those arrested were later convicted.
Bob Ravitz, Oklahoma County's chief public defender, voiced his concern in 2009 to the widening DNA net. “The end result is I guess you could take almost anybody's DNA,” Ravitz said. Eventually, he said, the only issue becomes “at what time does it invade our privacy sufficiently that we're going to get upset about it? Is it where somebody's arrested? Is it where somebody goes to school? Or where somebody's born?”
The Supreme Court may soon help answer some of those questions.