By LONNIE RANDOLPH | In early July, Gov. Mark Sanford vetoed a bill that would have required the state to collect DNA samples from people simply arrested for – but not convicted of – felonies and certain other crimes, and add their DNA profiles to state and national databases. The NAACP could not have agreed more with the veto.
As Gov. Sanford pointed out in his veto letter, fewer than half of all felony arrests in our state lead to felony convictions. Had he signed the bill into law, tens of thousands of DNA samples would have been collected from innocent South Carolinians each year.
The Fourth Amendment to the U.S. Constitution, as well as Article I, Section 10 of the S.C. Constitution, protects people from unreasonable searches and seizures, and ensures due process procedures are followed when searches are conducted. The U.S. Supreme Court has long held that taking tissue or fluid samples from individuals constitutes a search. This is why South Carolina, along with many other states, has limited DNA profiling to individuals who have been convicted of felonies. South Carolina law also allows for the collection of DNA samples from an accused suspect, but only with a court order.
Due to the overwhelming disparities that already exist in the criminal justice system, this legislation would have had a disparate impact on racial and ethnic minorities. Minorities are far more likely than whites to be arrested on unsustainable grounds. Collecting DNA samples at the point of arrest would have resulted in the DNA database becoming increasingly skewed with minority profiles. This assault on equal treatment under the law would have been aggravated by the inadequate expungement procedures contained in the bill.
During debate, some lawmakers claimed that DNA is just like a fingerprint. But unlike fingerprints, DNA samples (which are retained by the state alongside the more limited DNA profiles they generate) can provide insights into disease predispositions, physical attributes and ancestry. Repeated claims that human behaviors such as aggression, addiction, criminal tendency and sexual orientation can be explained by genetics render such databases especially prone to abuse. Our state already has a tainted history concerning genetic information: Until 1985, state law allowed for the forced sterilization of people – mostly African-Americans – having presumed genetic “defects.” Imagine how these DNA samples, with the wealth of genetic information they provide, could be misused by the government, business or law enforcement.
And unlike fingerprints, DNA can identify biological relationships, often referred to as “familial searching.” In some states, law enforcement has started to mine the DNA database looking for partial DNA matches. Those innocent individuals with a partial match are then investigated in the hopes that they might be related to the real culprit. Familial searches can yield thousands of partial matches, which translates into significant time and money spent investigating and intruding on the lives of innocent people.
In addition to concerns about privacy and racial biases, flooding our already-backlogged DNA labs with tens of thousands of unnecessary samples could have undermined law enforcement’s efforts to catch criminals. Around the country, there have been reports of delays of several months and even years in analyzing rape kits as crime labs face overwhelming DNA testing demands brought on by database expansions. These backlogs not only allow attackers to roam free, but also can contribute to errors in DNA analysis, labeling and interpretation, resulting in serious miscarriages of justice.
While DNA testing is an important tool that can and should be used for solving crimes, collecting DNA samples from those not yet convicted or even charged with a crime would lead us down a dangerous and expensive slippery slope. Despite our differences with the governor on other issues, we believe in this case he deserves our thanks.
Dr. Randolph, a Columbia optometrist, is president of the S.C. NAACP.