The 4th Amendment of the Constitution protects everyone in the U.S. — regardless of legal status — against excessive searches and seizures by the government. In a reasonable world, that would mean that the authorities couldn’t compel you to provide a DNA sample unless they have a warrant or probable cause to believe you’ve committed a crime. And they wouldn’t be allowed to keep the sample in a permanent database unless you’ve been convicted.
But in an egregious expansion of government overreach, the Trump administration reportedly is crafting policies under which it will gather and keep DNA samples from tens of thousands of migrants held in detention centers who have not been charged with or convicted of crimes. That’s an outrageous constitutional violation that undermines our nation’s foundational commitment to personal liberty.
The decision to include detained immigrants among those who would have to give up their DNA seems to stem from President Trump’s provably false notion that immigrants include a disproportionately high number of people who commit crimes. Studies show that immigrants, both those here with permission and those without, commit crimes at lower rates than do native-born Americans. The proposed rules would even permit DNA collection from children and from people seeking asylum at legal ports of entry, among others.
Under the Obama administration, immigrant detainees had been exempt from the fingerprinting requirements of the DNA Fingerprint Act of 2005 because the cost of complying was deemed excessive. These new rules would end that exemption.
The Trump administration’s goal is apparently to take the DNA of detainees in order to find links between them and unsolved crimes, as well as to build a database to use in investigating future crimes. This won’t only affect noncitizens the government is trying to deport. Immigration sweeps have mistakenly caught up hundreds of American citizens and people living here with permission, which means that under this policy the government will likely collect DNA samples from U.S. citizens. All without the requisite court oversight. And without any crime having been alleged. It is a civil libertarian’s nightmare.
Framed broadly, the government has a valid interest in taking DNA samples from people arrested for crimes, and keeping that DNA on file if those people are convicted; that’s part of the fallout of breaking the law — a loss of certain civil liberties and privileges. But it shouldn’t keep the DNA of people who have not been convicted. Unfortunately, the U.S. Supreme Court doesn’t see it that way, however. In 2013 it upheld a Maryland law requiring police to collect DNA samples from people charged with — but not necessarily convicted of — serious crimes, which could then be saved in a database that could be used to solve unrelated crimes.
California took a similar, regrettable approach in 2004’s Proposition 69 which, among other things, allows the government to collect and keep DNA samples from adults arrested for, but not convicted of, certain felonies, including sex offenses, murder and voluntary manslaughter. Those found not found guilty can petition to have the sample destroyed, but that’s hardly a sufficient remedy for violating the privacy of people who are, in the eyes of the law, innocent.
The federal government has a legitimate interest in keeping DNA samples from people convicted of felonies. But it should not be allowed to keep DNA samples from migrants, or other people who have not been convicted as a resource to investigate crimes that might occur in the future.
It’s ironic that the administration wants to take such un-American actions against people fighting for the right to live legally in this country. Justice Antonin Scalia would be outraged; the rest of us should be too.