In 2007 a Tennessee law was passed, as many bad laws are, in the aftermath of a horrific crime. Johnia Berry was violently murdered. Her parents asked State Senator Ron Ramsey to consider working with a national DNA database to assist in the investigation. Senator Ramsey introduced a bill mandating collection of DNA from those arrested for violent felonies in Tennessee. It passed and is now law in Tennessee and 23 other states.
In one of those “It’s a small world” moments, years later a misdemeanor suspect voluntarily offered up a DNA sample. It was matched to DNA from the Berry crime scene. The suspect was arrested for the crime but committed suicide before trial. He was not identified through any provision of the law, but the connection is close enough that people make the mistake of seeing it as an example of how the law benefits Tennesseans.
This year Lt Governor Ramsey, wants to expand the scope of the bill. SB 257 mandates collection of DNA from all persons arrested for any felony in Tennessee. Connected as it is to the murder of Johnia Berry, some proponents ask “Do you favor the law or do you favor letting Johnia Berry’s murderer remain free?” Others say it’s no different from photos and fingerprints. Detractors frame it via the 4th and 5th Amendments and question requiring a citizen to surrender a part of “their person” for a criminal case which might “[compel him] … to be a witness against himself …” not to mention being deprived of his “property” without “due process.”
The bill additionally requires that, in the event charges are dropped or the accused is not convicted, the DNA sample taken at his arrest would be destroyed. This would seem to be an acknowledgment of the bill’s Constitutional problems. If the true bottom line for the sample’s retention is conviction, why not simply delay collection until then? Opponents I have talked to would support the bill if that one change were to be made. I am a member of that group.
A significant number of the bill’s opponents also distrust that the samples are “safe” in the custody of the government. Once collected, it is unclear exactly what happens to them. Given they are due to be destroyed under certain circumstances, it is clear there is some reservation as to the government having them in the first place. As many as 15% of the samples taken may be subject to this later destruction. But will they be merely stored until the case against the donor is disposed of? Will the sample be processed and compared against the national database to see if the DNA matches another sample in the system? Who is responsible for collection, processing, storage, payment and final disposition of the sample? These questions remain unanswered. Lt Governor Ramsey is confident penalties for failure to destroy or for misuse of samples are sufficient safeguard. Others remain suspicious of government’s track record as a watchdog for individual rights.
Such suspicion is downplayed by supporters of the bill. Then one reads the Feds are poised to take a technological breakthrough in genetic testing and expand their ravaging of individual rights by handing it over to, of all things, TSA for implementation. The controversies surrounding TSA and its use of technology and practice to abuse and violate citizens guilty only of wanting to catch a plane is well documented.
There are many questions to be asked here, too. Chiefly, under what circumstances would a DNA sample be legally required at an airport checkpoint? It is my opinion that handing over a portable, high speed genetic testing device to TSA will lead to an exponential increase in the lawless and reckless disregard of individual liberties by this particular government agency. Further, just as with the backscatter scanners, implementing it in such a public and high profile arena will not serve to make us more secure. It will merely soften the average citizen’s resolve to resist the unlawful infiltration of the state into the lives of citizens.
Technical innovation is welcomed by the law abiding. But we don’t sanction violating one law while enforcing another. The pursuit of justice must not itself create injustices and securing the rights of the people must remain the highest priority of government. A good start would be to alter Tennessee’s SB 257 to collect samples after conviction and to completely halt the introduction of portable DNA scanners until after the ethics and problems inherent in such technology have been fully explored.