Endgame for DNA Collection Debate?

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

DNA Collection

For five years, the ACLU of Pennsylvania has fought legislation to collect and store DNA from people who have not been convicted of a crime. The varying forms of the legislation demanded DNA collection from people who had been arrested for or charged with certain crimes, flipping the idea of “innocent until proven guilty” on its head.

In each of the last two sessions, a bipartisan coalition of state representatives has turned back the legislation when it has reached the House. If you follow the personalities of state politics, check out this amendment vote from 2012. Those voting “yea” voted to remove the preconviction collection provision from that bill. Yes, Rep. Daryl Metcalfe (R-Butler County) and Rep. Dan Frankel (D-Pittsburgh) voted together, along with a host of liberals and conservatives and moderates.

On Tuesday, the House Judiciary Committee took up yet another version of this legislation. But instead of moving the bill along with the offending language, as the committee has done in the past, Chairman Ron Marsico (R-Dauphin County) offered an amendment to remove the language that requires DNA collection from people who have been arrested. His amendment replaced it with expansion of the current postconviction collection to include all first-degree misdemeanors and some second-degree misdemeanors.

While some civil libertarians won’t like expanding the post-conviction practice, which is currently for all felonies and a few misdemeanors, stopping across-the-board, blanket DNA collection from people who have not been convicted is, in the words of Vice President Biden, a big (frickin’) deal. Twenty eight states and the federal government collect DNA from people who have been arrested or charged but not convicted, and in 2013, a divided Supreme Court upheld the practice.

The privacy implications of preconviction DNA collection are huge. First, the government must jam a swab into your mouth or pluck a hair from your head or take blood to get a DNA sample. (The swab is the most common form of the practice.) In that practice alone, the government is in choppy privacy grounds in invading the person of someone who is still considered innocent under the law and in doing so without a warrant approved by a court.

Then, the government takes that very personal, very private information and uploads it to a database at the Pennsylvania State Police, which is linked to a query system at the FBI called the Combined DNA Index System, or CODIS. Remember, our DNA contains more than 1,000 identifying characteristics about us. And while the profile created for these databases only contain the markers that identify a person, don’t kid yourself. The infrastructure is in place to store more. If you’re acquitted or never charged or exonerated, you have to go back to court to get your DNA profile out of the database.

Of course, every win comes at a cost. The Marsico amendment maintained and actually worsened language in the bill on “modified DNA searches,” or what are more commonly known as familial searches. You and your family members share DNA. The more distant the relative, the less DNA you share. If this language becomes law, a law enforcement agency can go to the state police and ask for a modified search. PSP would then determine if the evidentiary sample is a close enough match to someone in their database that it could be linked to a family member of that person. If your troublemaker cousin is in the DNA database, you’re in the DNA database.

(If any of my cousins are reading this, apologies for throwing you under the bus.)

Senate Bill 683 contains all sorts of requirements before a familial search can be conducted, but the Marsico amendment added language that prohibits a person from challenging an arrest, conviction, search, or any other investigatory action because the law enforcement agency did not follow the requirements. So the limitations on familial searches are, essentially, meaningless.

This will probably be a contentious issue if and when this bill makes it to the House floor. Familial searches are highly controversial. And in its opinion upholding Maryland’s arrestee DNA law, the Supreme Court suggested that familial searches may be unconstitutional.

This bill still has several steps to go before it is finished, so no one is declaring victory. But the House Judiciary Committee, for the first time in three tries, recognized that the will of the legislature- and, specifically, Republicans and Democrats in the House- wasn’t there to pass a bill to collect DNA from people who have not been convicted of a crime. That’s a BFD.

Read more about Senate Bill 683

Why We Used To Run

By Dennis Henderson, M.Ed., ACLU of Pennsylvania Client

Dennis Henderson, an African-American teacher who was wrongfully arrested and jailed for 12 hours. photo credit: Larry Roberts/Post-Gazette

ACLU of Pennsylvania attorney Sara Rose and Dennis Henderson, an African-American teacher who was wrongfully arrested and jailed for 12 hours. photo credit: Larry Roberts/Post-Gazette 

Growing up in a public housing complex, my friends and I were conditioned to run when we saw a patrol car coming our way.

Between the ages of 6 and 10, we weren’t breaking any laws while walking home from school or playing in our neighborhood, but we knew we’re supposed to run when we saw a police car.

Every now and then, one would sneak up on us. Shock, anxiety, and fear would grip us. During those times, we just stood still not knowing how to respond while the patrolling officers drove past us slowly staring us down with a look of suspicion.

Between the ages of 11 and13, I figured that I shouldn’t have to run from the police if I didn’t do anything wrong. I stopped running. Looking back, I stopped at a good age, because that’s when the police started chasing. Many of my friends were caught and placed in the juvenile to prison pipeline system for reasons that would be considered “typical adolescent male behavior,” if they were from white middle class families.

Because of the detainment of many of my peers and witnessing the arrest of many of the adults in my neighborhood, as a teenager I still retained the emotions of anxiety and fear when encountered by a police officer.

It was also during this time that I encountered great mentors that taught me black history. I was educated about numerous African Americans who contributed their work, ideas, talents and lives to enrich the quality of life for all Americans.

While in college and as a young adult, I learned that in 1619, Africans were brought to the shores of North America in bondage, recognized as only 3/5th of a person under the ensuing U.S. Constitution, and subsequently, the Supreme Court unanimously ruled blacks had no rights in the Dred Scott decision.

Today, as an adult, I now mentor youth. As a middle school history teacher, I share with them what I’ve learned and teach them that the very same Constitution that restricted our rights eventually outlawed slavery and granted full citizenship and equal rights! So I thought.

On June 26, 2013, while standing next to my truck exchanging contact information with another individual, a police car sped across the intersection towards us. We assumed he was responding to a call, however, as he got closer, the patrol car continued to veer closer to where we were standing. As he passed, both of us pressed ourselves against my truck to avoid being struck by the police car.

His actions were unprovoked and shocking. The officer then made an abrupt u-turn and came back to enquire if I had a problem with what he did. I had no reason to run.

Now educated about my constitutional rights, I was no longer afraid. I choose to exercise my rights by requesting his name and badge number. This request prompted him to get out his car and demand our IDs. Concerned for my safety because of his erratic behavior and questionable intentions, I informed him that I was documenting the remainder of our conversation on my smart phone. He told me I had no rights to record him.

At that moment I realized that he didn’t agree with me having the audacity to believe I had rights [Dred Scott Decision].

He used his car to endanger me and treated me with no dignity or respect during our encounter [3/5th of a person].

I was handcuffed, slammed to the ground, arrested and locked in a cell [since 1619].

According to a recent article published in the “Crime &Delinquency” journal, a study indicated nearly 50 per cent of black males are arrested before the age of 23. I have no doubt that at least half of those arrests were unwarranted such as mine.

A harsh reminder as to why we used to run when we saw a patrol car coming our way.

Dennis Henderson is a middle school teacher at Manchester Academic Charter School in Pittsburgh. Read more about Mr. Henderson’s case

This post is part of a series in honor of Black History Month.