Maryland Will Violate Rights to Get DNA
Jan 30, 2008 Political
The Governor of Maryland is proposing that the state allow DNA to be collected from people who have been arrested for a crime but have not yet been convicted. As it stands now, a person must first be convicted before DNA may be collected and this is how it should remain. Scott D. Shellenberger, the state’s attorney for Baltimore County, has written a piece in the Baltimore Sun indicating that the Governor’s proposal should be passed. He states that this legislation could prevent crime and he cites a case where a man raped a woman and then raped a young girl. It turns out this guy had been arrested but not convicted in the past so there was no DNA on file. Shellenberger contends that if we had collected his DNA the first time he would have been identified after the first rape and the young girl would not have been the victim. This is obviously true but it does not negate the fact that collecting the DNA of people who have not been convicted of a crime violates their Constitutional rights. I submit that state’s attorneys failing to do their jobs are more dangerous than not collecting DNA and I will address that later.
People have an expectation of privacy and the Fourth Amendment protects people from unreasonable searches. Taking DNA from a person who is presumed innocent until proven guilty is a violation of the Fourth Amendment. In fact, Minnesota’s Court of Appeals held that taking DNA from juveniles and adults who have had a probable cause determination on a charged offense but who have not been convicted violates state and federal constitutional prohibitions against unreasonable searches and seizures.[1] It is also important to note that nothing would stop the state and its law enforcement agencies from using DNA for DNA dragnets or from deeper analysis to determine what maladies might affect people. Mr. Shellenberger contends that they don’t need to look at all parts of the DNA, just the parts used to identify. Just because they don’t need to does not mean they will not. The Governor will eventually try to force universal health care on us. What would stop the state from passing a law allowing them to use the DNA to determine eligibility or fee schedules or to see if a person would be a liability in a job? Once they have it, they can pass laws to abuse it in any manner they wish.
It is terrible that the young girl was raped. I am willing to bet that the offender had more than a few brushes with the law and was probably incarcerated at one time. It seems that they could have collected what they needed at that time but let’s assume this guy had never been convicted. Should the state be allowed to conduct a search for DNA without probable cause from a person who is presumed innocent? They cannot be collecting the DNA to connect him with the current crime because they have already arrested him which means sufficient evidence existed for the arrest. Therefore, they are trying to collect (and search as determined by our courts) for evidence linking the suspect to other crimes (or for that use in the future) though no probable cause exists for the collection. Attorney Shellenberger is advocating violating the Fourth Amendment in order to catch criminals. It is a shame that the young girl was raped and that others are victims of crime but violating the rights of people to catch them makes the people in our legal system no better than the criminals.
Now, I contend that state’s attorneys are more of a danger than the failure to collect DNA. It is the people who run our legal systems who allow criminals to go free instead of putting them in jail. Shellenberger used the case of the young girl but how about the case of Maryland State Trooper Theodore Wolf? He was the state police officer killed by two men who were out on bond awaiting sentencing after being found guilty of assault and weapons charges (in New York). How about Baltimore City police Detective Troy Lamont Chesley who was shot and killed in a robbery attempt by a 21 year old with at least 17 arrests on his record and who was due in court the day after the murder on a past gun charge? If he had been in jail Chesley would be alive. How many arrests does it take for state’s attorneys to get the picture? Of course judges play into this picture so the entire legal system is to blame.
The recidivism rate for violent offenders is well over 50% and yet state’s attorney’s and judges let these people out of jail all the time. If we kept them in jail we could reduce violent crime by at least 50%. While Mr. Shellenberger is advocating violating our rights perhaps he can tell us why it is that child sex offenders (who have a near 100% recidivism rate) are continually released so that they can sexually abuse and murder young children. One thing is likely in all the cases I cite, the people had already been convicted so their DNA was probably on file and yet it did not prevent them from committing other crimes. What allowed them to do so was a legal system that let them out of jail and state’s attorneys that accept plea deals which put violent people back on the street.
Collecting DNA from people who have not been convicted of a crime is a violation of their rights just as it would be to start collecting DNA from newborns to establish a database for the future. As Americans we have a certain expectation of privacy and we expect that our rights will not be violated. It is unfortunate that the very same state’s attorneys and judges who let people go free when their rights are violated would violate the rights of people presumed innocent in order to do their jobs.
Mr. Shellenberger, the Governor is wrong on this issue and you are wrong to support it. Violating a person’s rights is never appropriate.
If you want to prevent crime how about doing your job?
[1]American Constitution Society
Tags: dna, fourth amendment, legal abuses, rights