There is an old adage that "bad cases" make "bad law." In the past week, Illinois residents have seen the media analog to this adage -- "bad cases" create editorials calling for "bad public policy." The recent news coverage of the decision by prosecutors in Lake County, Illinois to drop charges against Jerry Hobbs, five years after he was arrested and charged with the murder of his daughter and her friend, closes a sad chapter for this family. The story is a tragedy at every level -- two young girls brutally slain, a father "confesses" after hours of endless questioning, DNA excludes the father, and the prosecutors in the case hold the father for up to two years after they know that the DNA evidence is present. It is a sad tale about false, coerced confessions and a rush to judgment -- the type of case that has caused so many Americans to question the criminal justice system and oppose the application of the death penalty, lest an innocent person be put to death.
But these lessons are not the ones being drawn in some quarters. In an amazing leap of logic, some law enforcement officials and others spoke to the Chicago Tribune as prosecutors moved toward freeing Mr. Hobbs, suggesting that the case suggested the need for another change in policy -- collecting DNA from all persons arrested for a crime in Illinois, instead of waiting until conviction (as currently required).
Remarkably, a few days later the Tribune editorial board used its pages to make the same call for a change to the law. So, the failure of prosecutors to test DNA found at the murder scene in the Hobbs case and to use the results of that test to exclude the father is now a reason to collect DNA from hundreds and thousands of Illinoisans who have never been convicted of wrongdoing- placing their most intimate, sensitive medical and genetic information into a government database.
One should not be surprised by the call for more DNA collection. Many Americans today embrace the current social phenomenon -- dubbed the "CSI Effect." The allure of television programs about police investigators using forensic evidence to facilely solve murder mysteries has made Americans amenable to the notion that science can provide easy answers for fighting crime. The collection of DNA from all arrestees, the argument goes, is a "sensible" step to make our neighborhoods more secure. This argument sadly understates both the constitutional and the practical implications of collecting DNA from all arrestees.
Those who support the collection and permanent retention of DNA samples are summarily dismissing important constitutional concerns. Conducting DNA testing solely on the basis of an arrest would violate the right to privacy under the U.S. and the Illinois State Constitutions. Indeed, Illinois' more modern constitution contains even more explicit privacy protections than the federal Constitution. Proponents of creating a massive DNA database attempt to evade this constitutional problem by suggesting that DNA is nothing more than an enhanced fingerprint. DNA, however, is not the modern equivalent of a fingerprint. A fingerprint is used for a single purpose -- to identify someone; DNA contains our entire genetic make up, with sensitive information about health issues, susceptibility to particular diseases or conditions as well as information about close family members. In the future, we may find out that DNA discloses other personal information as well. This is the information that some suggest all arrestees share with the government.
Who, then, are these arrestees? Hundreds of thousands of people are arrested each year. Many of these people are arrested solely on the basis of a police officer's discretion. Ultimately, many of those arrested are not prosecuted at all, and others are found innocent of any wrongdoing.
The intimate, sensitive nature of the information contained in a DNA sample demands that a high standard be set before police collect and permanently retain such personal information in a massive database. State law currently allows the collection and permanent retention of DNA from all persons convicted in Illinois. Before a conviction, prosecutors can seek -- and a judge can order -- a DNA sample from a suspect. And, of course, any can offer a DNA sample voluntarily in order to exclude themselves in a particular criminal investigation. That is where we should draw the line.
Imposing a requirement for the collection and storage of DNA merely on the basis of an arrest is an intolerably low threshold that violates the important principle of presumed innocence. Indeed, there is legal recognition of the important distinction between "arrest" and "conviction." Because arrests disproportionately target minority communities, the Illinois Human Rights Act prohibits an employer in the state from inquiring about the fact of an arrest record when recruiting or hiring employees. Courts have interpreted federal law similarly to bar the use of arrest records in employment decisions.
If we are not going to require a conviction -- a better index of criminality -- before compelling someone to place one's DNA is a massive and permanent criminal database, there simply is no limit on what might trigger collection of a sample. DNA testing, under this theory, could be made part of gaining access to government employment, enrolling in a public university or even receiving a state-issued identification card of driver's license.
As a practical matter, proponents never explain how state and local entities will pay the exorbitant costs for DNA testing all persons arrested. Such a test often costs more than $100 for each individual. When one considers the number of persons arrested each year the cost is astronomical. In discussion over a California initiative to collect, process and store DNA samples from all persons arrested, for example, estimates are that the annual cost to taxpayers could be as much as $174 million. Estimates for the annual cost of implementing DNA collection of all persons arrested nationwide extend into the billions of dollars. Still, these cost estimates do not contemplate the resources necessary to create the infrastructure to store, maintain and analyze all the DNA samples.
In recent years, there has been a lack of resources for handling existing DNA samples in Illinois -- a lack of resources for testing DNA gathered from actual crimes. The Illinois State Police and the Chicago Police Department once reported more than 1,000 DNA samples -- gathered as a result of a reported rape -- sitting in a vault untested. This backlog was addressed only after the State appropriated $2 million in emergency funds and secured a private grant of more than $1.5 million. Responding to this, the General Assembly approved a law earlier this year mandating the testing of DNA samples in these cases in a timely fashion. This record hardly indicates a capacity for the State of Illinois to collect and permanently retain DNA samples from every person arrested.
The resources required to create and maintain the massive DNA database of all persons arrested could force already strained governmental entities to divert resources from other important criminal justice activities in order to bear these costs. Sadly, the money would likely be shifted away from support for law enforcement tools required to investigate and capture criminals in the majority of crimes (burglary, assault, armed robbery) where DNA is not typically gathered.
The Hollywood appeal of the CSI team is understandable. After all, they are able to use science each week to solve complex crimes in sixty minutes. Real life is not like television. Indeed, one cannot help but wish that Jerry Hobbs would have been cleared in sixty minutes, not after spending five years in jail. There are costs -- costs to our constitutional values and fiscal costs - that must be weighed when considering a proposal such as DNA collection for all arrestees. When examined against those costs, these proposals do not stand up.