Barred from Freedom: The Potential Role of DNA Samples in Pretrial Detention Policy

Categories: Law & Order

Anthony Freda
This week, the U.S. Supreme Court is hearing oral arguments over whether law enforcement should be allowed to take DNA samples from people arrested for serious crimes.

Michael Dreeben, one of the lawyers arguing for the government, stated that the samples serve two purposes: "crime solution and facilitating the release/custody determination."The latter purpose touches on the idea of using risk assessment tools to improve the nation's flawed pretrial detention system, which was the subject of our November feature story, Barred from Freedom.

The value of DNA samples in pretrial detention decisions is obvious: judges would have a better idea if the defendant may have been involved in any other crimes and, consequently, was a significant danger to the public if released before trial.

See Also: Barred from Freedom: How Pretrial Detention Ruins Lives

For now, it would take weeks before the DNA results came back. So a judge could only use the swabs to revoke or adjust bail that had already been ordered. As technology advances, though, DNA sample turnaround times will continue to speed up. Law enforcement officials envision a near-future where a judge can see the results within a couple of hours, and so can factor it into the initial pretrial detain-or-release decision.

This, of course, strikes right at the heart of Maryland v. King -- whether it is constitutional for a person to get convicted of a crime based on a DNA swab taken after an unrelated arrest for a charge that doesn't stick. Those in favor of the samples liken it to taking fingerprints, and those against liken it to illegal searches and seizures. Like many criminal justice policy debates, this one is about striking the Fourth Amendment balance between civil liberty and public safety.

Pretrial detention policy is no different. The more people you lock up before trial, the less chance that a dangerous defendant will commit a crime and the greater the chance that an innocent person gets locked up for months.

DNA samples address the public safety part. But the real problem with pretrial detention policy is the locking-up-innocent-people part. Currently we're locking up many people before trial -- more than 60 percent of America's jail population is unconvicted. Most of them are in there because they can't afford to pay bail. Usually, a judge sets the amount based on a bail schedule, which lists suggested figures for each charge. As a result, pretrial freedom is often tied to a defendant's wealth.

Reform advocates see deeper risk assessments as a possible fix. By looking at the risk factors in a defendant's life (is he employed? Does he have people looking out for him? Does he have a stable residence? Does he have a family he provides for? Does the victim fear his release?), they believe that they can offer some defendant alternatives to pretrial detention, from electronic monitoring to drug counseling. In Santa Cruz County, for instance, the jail population has dropped by 25 percent in the seven years since officials installed this sort of evidence-based method.

So if the Supreme Court rules in favor of the government, there may be a silver lining for civil liberties advocates: With DNA samples potentially keeping more dangerous defendants off the streets, there would be less excuse to ignore the other half of pretrial detention policy.

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