April 20, 2015 - Should the entire population of the United States be compelled to provide samples of their DNA to a government database to help prosecute guilty individuals and exonerate the innocent? That was the question posed in a recent debate at the University of Houston Law Center.
Opposing views by Professor Arnold H. Loewy, the Judge George R. Killam Jr. Chair of Criminal Law at Texas Tech University School of Law, and Melissa Hamilton, a visiting criminal law scholar at UHLC, revolved around the search and seizure provisions of the Fourth Amendment to the Constitution.
Loewy, who is spending the current semester at UHLC, made the bold assertion that a nationwide DNA database, similar to the Combined DNA Index System (CODIS) now used by the FBI, could be set up in such a way that it would not violate the principles of unwarranted search and seizure outlined in the Fourth Amendment to the U.S. Constitution.
That would mean taking DNA from all babies born after the law’s enactment, and providing a means for all residents to provide their DNA by “spitting into a cup,” Loewy said. Once such a database was in place, he said, it would make it easier for police to identify suspects with DNA evidence, and also eliminate potential suspects who are not guilty.
“In legal terms, this looks much more like a subpoena than a search,” Loewy said, likening his proposal to a summons for jury duty or military service in times of war.
Loewy acknowledged that many people would object to such a database because of the fear of an Orwellian Big Brother-style government having access to people’s most intimate information.
“It seems to me that the question is the abstract harm of allowing this versus the concrete good,” he said. “The concrete good is obvious – convicting the guilty and absolving the innocent.”
Hamilton applauded Loewy for his “provocative proposal” that allowed for a discussion about how much Americans might be willing to allow government intrusion into their lives and liberties to achieve a potential good.
Hamilton, who before becoming a lawyer served as a police officer and a corrections officer, said she is “very conservative” when it comes to criminal justice issues. But still, she said, Loewy’s proposal would go too far, especially as it relates to the Fourth Amendment.
Hamilton asserted that despite Loewy’s arguments, spitting into a cup could indeed be seen as an unreasonable search and seizure of a person’s personal property and information, since it would be compelled by the government. This would be “even more problematic” for taking DNA from newborn babies, she said.
The debate, held before an audience of Law Center students and faculty, was sponsored by the UHLC chapter of the Federalist Society.