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Thursday, March 07, 2013

Universal swabbing?

The provocative Eric Posner, in Slate:

If we really care about rights, we should mandate DNA testing, and not only of arrestees, but of everyone. A universal DNA database would greatly increase the number of convictions—vindicating the rights of rape victims and protecting others from serial rapists. It would also, of course, help police solve other crimes in which criminals leave behind hair, blood, flakes of skin, and so on. Such a database would greatly reduce the incidence of false convictions, thus protecting the rights of innocent people who are wrongly accused. And a higher hit rate would cause police to spend more resources collecting DNA evidence at crime scenes, giving them more ammunition for solving cold cases—just because the higher payoff in terms of convictions would justify the higher costs.

What would be the realistic threat to civil liberties of a society-wide DNA database? Keep in mind that we like to ask the same question of gun-rights enthusiasts who recoil at the idea of universal gun registration. 



And the left worries about an individual's right to privacy?

Who says Eric is left?

ZORN REPLY -- A question that could only come from one who is accustomed to and offended by any challenge to liberal orthodoxy, like the idea that the Trayvon Martin case isn't a simple case of racist assassination or that we need to read Miranda rights to terrorist warriors hiding out in desert. I'm just not as left as you, Dienne.

Since I don't want to be labeled as a tin foil hat wearing conspiracy theorist (and therefore be lumped in with the Red Dawn, anti drone right wing extremists), I will state I think this is a good idea.

Anyone who doesn't understand the risks of mislabeling samples hasn't worked in a lab. (Could such mislabeling happen without mandated swabbing? Yes. Will it involve my DNA? No.)

-- MrJM

And the author offers ZERO support for his claim that, "A universal DNA database would greatly increase the number of convictions".

The article is simply too insubstantial to be refuted.

-- MrJM

ZORN REPLY -- It's conjectural, but why do you think it would be false.


That's funny.

There are several ways that criminals can make a mess out of any DNA left at a crime scene.
One is chlorine bleach, that destroys DNA, but I know of a few other ways & I won't mention them, because I don't want to give stupid crooks any ideas.


If you're going to commit a crime, be sure to leave that Starbucks cup that EZ was drinking from.

-- MrJM


Good idea. Hey EZ, cup of coffee? My treat!

If the stated justifications for requiring every person in the US to give a DNA sample are the best Posner has, I'm not convinced. He mentions "unreasonable" searches and why the police can't search the house of someone accused of drunk driving as an example of such an unreasonable search. This plan would take the entire question of guilt out of the Fourth Amendment. At that point, why not just fingerprint everyone while getting the cheek swab? After all, fingerprinting isn't *that* intrusive either.

Since neither I nor Posner seem to have statistics at hand, I can't definitely refute his argument regarding a greater incentive to collect DNA-testable evidence, but I'm curious what percentage of crimes nationwide go unsolved because the police can't justify the cost of collecting and/or testing evidence for DNA. That feels like a pretty flimsy argument.

EZ, I know you want to be a delightful provocateur in gun-related matters, but this is dumb. The human body can do and be used for many things. Guns can only be used for one thing: shooting.

Of course, there's always that minor little problem of the Fourth Amendment. Y'know, the part about being secure in their *persons*.... But, hey, it's just a piece of paper, right?

I think Dienne was serious.


Who decides which hair, blood, flakes of skin, and so on belong to the criminal as opposed to samples left behind at the scene by the innocent?

ZORN REPLY -- It's a fairly common evidentiary issue...of course my client's fingerprints were on the vase...he was a dinner guest at that house a month earlier...
Who decides? Juries or judges.

Eric I am having a crisis of conscience about this Rand Paul drone thing going on.

Can you do a post declaring him a kook, backed up by some quotes from the Salon, Slate and The Atlantic crowd?

That would go a long way to putting it in perspective for me....


I think excessive DNA evidence helps the criminal, while needlessly involving the innocent.

It's an interesting question, but to focus just on Eric's last sentence:

People have 4th amendment rights. Property (guns, cars, etc) do not. This is the legal distinct between demanding gun registration and tracking vs requiring people to provide genetic material.

As for the merits of a universal registry, we could also reduce crime or increase convictions by allowing police to randomly inspect our houses, require people to carry documentation, or monitor peoples movement via gps. Our constitution and general hertitage makes us very cautious in sacrificing privacy.

ZORN REPLY -- What's the principled privacy interest? You can be photographed any time you leave the house. You can be followed. Police can take your DNA off your coffee cup if you leave it behind. Facial recognition software is getting better and better....DNA which would only be processed at crime scenes and matched to crime databases sacrifices your privacy how? I'm serious. I'm trying to imagine a realistic situation where this violates your privacy...comparing it facilely to a intrusive search of your home and person is not an apt argument....what's closer is a system that compares photos of convenience-store stick-up crooks with the database of state ID card photos. Would that be an invasion of privacy?

@MR JayEm:
That's one of the ways!
Just pick up someone else's food from a fast food restaurant.
If that person is in the database, the cops will go nuts trying to prove that person is "the one" & ignore everything else.

I agree with the two Erics. I can't come up with a strong argument against universal swabbing. I'm having trouble even coming up with how the government could misuse the information in some outrageous dystopic fashion that wouldn't happen anyway. My only problem with Eric P.'s argument about the benefits to the innocent is that, although DNA evidence is taken as conclusive proof of guilt (because it is), its absence (or presence of someone else's) is not necessarily taken as a demonstration of innocence, or even as reasonable doubt. We saw that with the Rivera rape and murder case, where the DNA wasn't his but the prosecution moved forward anyway and got a conviction anyway on the basis of an absurd (only overturned for the last time a gazillion years later by the Illinois Supreme Court). We saw that in the Central Park Five brutal rape case -- an excellent documentary -- where the prosecutor described the DNA results (no connection to any of the suspects) as a "punch to the gut," but went ahead anyway and got convictions anyway based on false confessions. Eric P. is assuming that police and prosecutors are always fair-minded rational creatures. Yes, as Eric Z. says, it's up to judges and juries to sort through defenses, but they often do a piss-poor job in the face of horrific crimes. If we are to institute the Eric P. regime, I want some sort of legal reform that will make sure DNA evidence actually works for the innocent when it should.

If they had our DNA they could test us for disease and kill those who are going to get ill. Why? To keep down the cost of ObamaCare.

PS: Soylent green is people.

What if they use the DNA database to start cloning people and harvesting their organs to sell on the international black market? Come on people - let's move from "realistic" and into "fear-crazed, black helicoptor" territory. Just for funsies.

"...I want some sort of legal reform that will make sure DNA evidence actually works for the innocent when it should."

Exactly. I don't think prosecutors should be able to refuse DNA evidence on trumped up charges that it was improperly collected, collected or certified by the wrong authority, and whatever other nonsense they can come up with.

Holy Cow! I didn't even think about the organ harvesting! Put me in the "NO!" category.

PS: A national fingerprint database would eliminate the cloning possibility so maybe that's what we need. I'd also like it if they gathered some of the person's scent at the same time so we could use it with bloodhounds if needed.

Eric Z,

For the record, I'm not sure where I land on this debate, but I think it requires a very careful debate.

There is a big difference between evidence that you might leave behind in public and a proactive universal collection of DNA.

My preliminary argument against would be something like this:

People knowing sacrifice a degree of privacy by going out in public and this is well accepted. You can be photographed, police can watch you, and you need to provide identification to enter certain areas. You also sacrifice a degree of privacy for certain privileges (driving a car or owning a gun).

However, you have a right to privacy within your own body that you should only surrender in exchange for some other social/civic interaction.

The most obvious potential slippery slope is the use of DNA data in profiling. The government could identify markers that they believe are common in a type of criminal and use it as an excuse to monitor individuals with that marker. Once universal DNA registries become common does this information become more widely available for pricing and other discrimination such as insurance pricing. We would need to vastly expanded the protected cases under civil rights laws in order to counteract the potential abuse.

@ChrisH: I believe there's already a law that prohibits discrimination due to DNA.

A couple people have touched on this -- if this is a good and/or constitutional idea, why have we not mandated universal fingerprinting a long time ago? The possibilities with regard to "black helicopter territory" abuses with fingerprints would be much lower, and the benefits would be similar, with regard to solving crimes. I'm not sure which side of this issue I'd come down on, but the POTENTIAL misuses of DNA are certainly provocative enough to make this a rather scary proposition.

Obviously, the gummint isn't going to be interfering with Garry's ongoing crime spree, as he will thwart this DNA mandate effort with his bleach and other tactics. ; ) I don't think that the abilities of smart crooks to dodge the law need necessarily be a determining factor in whether a regulation would be advisable, however.

As for MrJM's concern with potentially mislabeled samples, there would be plenty of opportunity to confirm that the DNA is actually from the correct suspect once he was arrested, it would seem.

All that being said, I'm of the opinion that the ubiquitous filming and photographing that goes on every day (by regular folks, not the government) is unacceptable to begin with. If I were King, you'd not be allowed to post a YouTube video of some poor sap inadvertently doing something stupid and/or funny in public unless they gave consent.

I'm not particularly against this--just like I am not spooked by the idea of a "national ID"--but to me the main issue would be privacy. My default assumption would be that privacy of one's DNA could not be assured. We've seen how often our passwords, SS numbers, and other private information has been leaked out by folks to whom they've been entrusted. Conceivably, your DNA could reveal information about your health.


Thanks. It would be interesting to read the details of the law because wider availability of DNA data is really going to challenge it.

Do you know if the law applies to government use also?

Icarus, I love that movie.

"This is how I beat you. I never saved anything for the swim back."

You know....not that I WANT Garry to commit a crime or anything, but can we all agree one of the best parts would be watching the forensic witnesses presenting the DNA evidence that Garry thought he wiped away simply by pouring some chlorine bleach around? Granted, it might make it a little more difficult to get a sample, but then there's other things like the fingerprints from inside of the gloves you used.

(BTW, message boards on this sort of thing are hilarious for statements you run across like "you can't get DNA from a blood sample since red blood cells have no nuclei.")

Jakash, noted your comment about fingerprinting. Please remember that while nuclear DNA analysis has been shown to consistently and reliably individualize trace evidence to a single source, fingerprint identification has not. See National Academy of Sciences (2009). Right now we don't know whether fingerprint individualization is junk science or not.

Dienne -- Liked your comment about the Fourth Amendment being a piece of paper. When I was in law school some of the academics said that the constitutional criminal procedure class we were taking was really a history course. When I started defending cases, I found out how true that was. The courts are remarkably reluctant to apply laws including the Constitution rigorously in favor of defendants. The crime control mode of judging seems to carry the day. There is always a reason not to disturb what the state or fed government has done.

I was unaware of that, GJO'L, but I WILL remember it. Thanks.

Not that something being considered "junk science" is necessarily a deal-breaker with a lot of folks in this country. ; )

As to your last line, I know that only too well.

In fact, take a look at Florida v. Harris (No. 11-817), decided last month. The Supreme Court says a drug dog hit is reliable enough to establish probable cause so long as a "bona fide organization" has certified the dog after reliability testing, whatever that would be.

Here's a simple response: Screw that idea. You want my retinal scan too? Good luck with that because it's all jungled up.

I gotta split now because I'm heading over to the Department of Hatcheries and Conditioning at 905 to meet this nice looking Beta Plus I've been chasing.

Sorry, late to the party - didn't see your response before. What exactly do you mean by "liberal orthodoxy"? Seems to me that I'm the one challenging that. Liberal orthodoxy seems to mean that whatever Obama says is right, and you're a lot closer to him than I am, policy-wise. What, for instance, is the "liberal orthodoxy" on drone strikes? According to most liberals, Obama is so wise and wonderful that we need not implement any restraints on him. That's certainly not the sort of "liberal orthodoxy" that I'm prone to take offence at any challenge to it. Quite the opposite, in fact.

And, I dunno, as regards the issue of privacy lately, you seem to be saying that we have essentially none, except (perhaps) within the walls of our own homes. I suppose that issue doesn't break down so neatly along left/right lines, but you certainly are an authoritarian.

And, geez, you're getting to be such a crank that you can't even handle accomodations for the deaf, even if it is "political grandstanding" (yeah, because the deaf are such a large a powerful coalition), a position on which you find yourself in bed with Brian and Greg J.

The Martin case is hardly the only area where you've swerved to the right, although it does seem to be a marker, time-wise anyway.

What's the difference between having the government keep a DNA record on everybody from having a number tattooed on your skin for identification?

1) I believe that the claim that "a universal DNA database would greatly increase the number of convictions" is likely false because he presents no evidence that a significant number of unsolved crimes have DNA evidence that has been unmatched.

A universal DNA database would only ever have utility in cases of A) violent crimes, B) not involving firearms, C) where the victim doesn't know the offender. That is a remarkably small subset of offenses. And the tiny sliver of that subset that might be solved with a universal DNA database does not offset the privacy interests of innocent citizens who aren't even suspected of a crime.


The question isn't whether my sample is identified as mine, it is whether my sample is misidentified as the sample that was gathered at the scene, or that either of the samples is cross-contaminated. And no, this is not just a hypothetical concern, e.g. http://goo.gl/Uqcl4

-- MrJM

Or, as MCN so succinctly put it: "Screw that idea."

-- MrJM

@Joseph Finn:
I wouldn't use wipes with bleach, I'd pour gallons of the stuff to wreck the DNA.
As for gloves with fingerprints on the inside, I'd get rid of them at a large medical center or hospital. Good luck trying to find them.
Or even better, dumped down a fast flowing sewer. Absolutely useless.

Garry, just don't forget to not leave any bleach bottles behind.

"Guns can only be used for one thing: shooting."

Yes, this is why we buy them.

BTW, Eric, this: "or that we need to read Miranda rights to terrorist warriors hiding out in desert."

You know who else has mocked people for the same things? Bush, Rove and Palin:

"Bush in his 2004 Convention speech mocking John Kerry: "After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers";

Rove in 2005 mocking liberals: "Liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments";

Palin in her 2008 RNC Convention speech mocking Obama: "Al Qaida terrorists still plot to inflict catastrophic harm on America, and he's worried that someone won't read them their rights"."

So how does it feel to use practically the same words as Sarah Palin? So tell me again how it is that you haven't lurched to the right?

h/t to Glenn Greenwald http://www.guardian.co.uk/commentisfree/2013/mar/10/paul-filibuster-drones-progressives

ZORN REPLY -- I haven't lurched anywhere. I've always been a believer in pragmatic, efficient exercises of military and police power and averse to appeals rooted in let's just say deep distrust of government.

Steinberg has a good column today in which he notes that Rand Paul seems untroubled by the contradiction between his paranoia over the government use of drones to kill enemies without due process and his priapic enthusiasm for the right of armed American citizens to dispatch with bullets anyone they think may be threatening to their property or their rights.

I think it's naive to apply domestic Constitutional niceties and to invoke the wail of citizenship when we're talking about those who are abroad, at large, and have taken up arms literally and/or figuratively against the United States. My only real concern with that is tactical.

Sarah Palin wildly mischaracterized the position of the left/ candidate Obama in order to make one of her inane political points ... I don't see the relevance.


So you think EZ has similar views (at least on this topic) to Bush, Rove and Palin and your quote seems to back that up. And then EZ states "I've always been a believer in pragmatic, efficient exercises of military". I guess that means that Bush, Rove and Palin were pragmatic and efficient in their believes in how military power s/b used.

Glad you are on board. :)

ZORN REPLY -- But no. I think Bush & Rove were neither pragmatic nor efficient in their deployment of military power. Just because I don' t have a problem in theory with, say, invading Iraq to protect our vital interests, I have a big problem when it's done rashly, wastefully and unnecessarily.

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