The Fourth Amendment must prevail

Senate Bill 988 would transform law enforcement agencies into a genetic surveillance force, a veritable “23andme" with a badge

Like much of our Bill of Rights, the Fourth Amendment’s prescription against unreasonable searches and seizures by the state was born from our early experience with the British Crown when suspicionless searches were commonplace. But in recent decades, the foundational protections guaranteed by the Fourth Amendment have been steadily eroded, especially when crime is at issue.

Cloaked in hackneyed “tough on crime” claims, state and federal legislators alike have rushed to immolate one constitutional right after another—usually at the expense of the poor, the sick, and always people of color. The unfortunate truth is that it is far simpler for politicians to say they are "tough on crime" than to actually solve it, and legislative efforts designed to punish and incarcerate are easier to sell than solutions intended to heal.

The latest attempt to “improve” our criminal justice system is Senate Bill 988. SB 988 purports to “enhance public safety” and “bring closure to crime victims.” These are, of course, laudable goals supported by every legislator ever elected. But as is often the case, the devil is the details, and upon a cursory review, it is difficult to imagine 14 pages more destructive to constitutional protections than SB 988.

While Pennsylvania currently collects DNA samples from people convicted of hundreds of crimes, SB 988 would expand collection to anyone arrested for those offenses. This bill transforms law enforcement agencies into a genetic surveillance force, a veritable “23andme" with a badge, uploading your most personal information into state and federal databases—all while you are supposedly presumed innocent and still retain an expectation of privacy. Despite its promise to focus on those “arrested for serious violent or sexual crimes,” SB 988 would not only require DNA samples from anyone arrested for a felony, but also for every first-degree misdemeanor offense. Write a bad check to pay your rent? Submit a DNA sample. Pull a false alarm? Surrender a sample. Arrested but not charged? Hand over your DNA. Under 18? Irrelevant. Don’t want to provide a sample? The bill allows law enforcement to either forcibly take it from you or detain you until you submit—even when you might have otherwise been released on your own recognizance.

SB 988 accomplishes nothing that a warrant couldn’t currently provide. But by erasing any meaningful distinction between those arrested and those convicted, it succeeds in undermining pesky constitutional rights to due process, counsel, and the presumption of innocence. It entrusts an unprecedented expansion of mass genetic surveillance to a system built by mass incarceration. And good luck getting your DNA expunged. In every instance, the burden falls on individuals to petition the court for its removal, including those who were arrested but not charged, charged but acquitted, had charges dismissed, or even had their DNA taken “by mistake.” Even if the legality behind the government taking your DNA upon arrest doesn’t raise alarms, how confident are we that it would not be used for other purposes or that it would be held securely? A DNA database breach or hack would be catastrophic, because unlike changing your password, no one can change their DNA. 

Pre-conviction DNA collection was narrowly upheld by the U.S. Supreme Court in its 5-4 decision in Maryland v. King. But just because the state is permitted to do something, doesn’t mean it should. Indeed, Justice Scalia, interjecting mere seconds into oral argument, exposed the absurdity of using a distant promise of closing cold cases to justify gutting a foundational constitutional protection. In responding to the boasts of the Maryland solicitor that arrestee DNA matches led to several convictions, he quipped, “Well, that's really good. I'll bet if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too”—concerns he expanded upon in his scathing dissent.

Resources would be better spent on eliminating forensic backlogs or preventing crime by tackling issues of poverty, substance use disorder, and mental health. SB 988 will burden the system with an unfunded mandate to needlessly collect, analyze, and warehouse DNA from those whose allegations do not warrant it and from others who will be found innocent. This is hardly a pathway to public safety, much less justice. 

Perhaps those who believe that warrantless, suspicionless collection of people’s most private information is a fair trade for the mere possibility of an uncertain conviction—like those who champion the passage of SB 988—should be the first in line to surrender their DNA to the state.

State Rep. Dan Miller represents the 42nd Legislative District in Allegheny County and serves as the House Majority Whip