Cut the DNA dragnet

Give state Sen. Debbie Smith, D-Sparks, and Assemblyman Pat Hickey, R-Reno, credit for good intentions: They want to catch criminals.

And who doesn’t? The idea that a person guilty of a crime — especially a heinous crime such as murder or rape — might be free to roam the streets because of a bureaucratic hurdle is infuriating. For the families of the victims of those crimes, it’s agonizing.

That’s why Smith reintroduced a bill that failed during the 2011 session, Senate Bill 243. It would, among other things, create a state DNA database under the purview of the Washoe County Sheriff’s Office, and require that any person arrested on suspicion of a felony be required to give a DNA sample.

That’s arrested, mind you, not convicted. It’s an important distinction.

Why? Because, legally speaking, there is no difference between a person arrested for a felony crime and the rest of us: We are all innocent until such time as we plead guilty or are found guilty.

And while the bill provides that DNA samples taken from people who are not ultimately convicted of a crime be destroyed, the fact remains that taking such a sample from all people arrested on a felony count is improper.

For many, that’s going to sound stupid. Why wouldn’t we take a DNA sample from an accused criminal and use that sample to see if he or she has committed any other crimes for which there’s DNA evidence? (The bill would apparently allow such testing from the time of arrest, at least until the case is adjudicated, a process that can take years.)

One of the reasons: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” or so says the Fourth Amendment to the U.S. Constitution. There is literally nothing more personal than one’s DNA.

There is a way around the Fourth Amendment, of course: a warrant. But “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That means a law-enforcement officer has to describe to a judge why he thinks you committed a specific crime, and that judge must decide whether there’s probable cause to violate your otherwise inviolable Fourth Amendment rights.

But under SB243, all felony arrestees would be forced to give a DNA sample, which could be run against all other samples in the state’s DNA database in a global search to connect a suspect to any unsolved crime. Instead of an individualized suspicion against a particular suspect, a dragnet would take in all arrestees, even if they’re later proved innocent of the offense that got them jailed in the first place.

There will be those who say if a person is innocent of committing any other crime, there is nothing to worry about. Under that logic, why aren’t we all required to give a DNA sample, which can then be used to “clear” us of committing a crime? Precisely because this gets the criminal justice system exactly backward. Yes, it makes things easier for police, but as the saying goes, a policeman’s job is only easy in a police state.

It’s understandable why Smith, Hickey and the parents of crime victims don’t agree. They can cite cases in which — if DNA samples had been available and the system worked without flaws — potential future victims might have been spared. Sacrificing those lives on the cold altar of the Bill of Rights makes no sense.

But for our system to work, the rules must be followed. It doesn’t make it any easier to understand or accept. But to do less jeopardizes the rights of everyone, the guilty and the innocent alike.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.