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Cook County authorities welcome U.S. Supreme Court’s DNA ruling

Cook County Sheriff Tom Dart  |  Sun-Times file photo

Cook County Sheriff Tom Dart | Sun-Times file photo

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Updated: July 11, 2013 6:10AM



Thousands of inmates at the Cook County Jail will soon line up for a buccal swab — to collect DNA from inside their cheek — in the wake of last week’s U.S. Supreme Court ruling allowing DNA testing on anyone arrested in connection with a serious offense.

And other Illinois law-enforcement agencies are pushing to expand the categories of crimes eligible for the testing.

Under the Supreme Court ruling, authorities could collect DNA as part of routine booking procedures and send the sample to the FBI’s Combined DNA Index System to check for a match.

This would be done before the person had been convicted.

Civil libertarians say it amounts to unreasonable search and seizure.

“The court has cleared the way for a great intrusion on personal privacy,” said Ed Yohnka, of the American Civil Liberties Union of Illinois.

Cook County State’s Attorney Anita Alvarez disagrees.

“We view this as a welcome ruling in terms of law enforcement and public safety,” said Alvarez’s spokeswoman, Sally Daly.

In fact, emboldened by the Supreme Court ruling, Alvarez’s office would like to see the Legislature expand existing state law — which now allows DNA testing of arrestees in five categories of crimes — to include more arrestees. Illinois law allows DNA testing of arrestees charged with first-degree murder; home invasion; predatory criminal sexual assault of a child; aggravated criminal sexual assault and criminal sexual assault. Absent formal charges, testing is allowed if a judge finds probable cause to believe that the suspect has committed one of those crimes.

The Illinois law mirrors the Maryland law at the heart of Maryland vs. King, the case the U.S. Supreme Court decided last week. So while the Illinois law has been in effect since January 2012, Cook County Sheriff Tom Dart had awaited the Supreme Court’s decision.

“Because of the similarity between Illinois and Maryland law, we elected to wait for the Constitutional question to be settled,” said Cara Smith, Dart’s policy chief.

“We have kits on hand. We’re now aggressively implementing the procedures in our jail. We expect to be collecting samples by July 1st,” she said.

Legal experts think Dart’s initiative bodes ill for the county and the nation.

“It’s admirable to want to get the bad guys, but if Tom Dart is going to start taking DNA from 10,000 inmates, magnify that by all jail inmates across the country, and we better be prepared to increase the national budget,” said IIT Chicago-Kent professor Richard Kling, a veteran criminal-defense attorney.

All 50 states mandate DNA testing of felony convicts. Like Illinois, 27 other states allow testing after arrests for particular crimes.

Maryland vs. King involved a DNA sample taken during routine booking of a man arrested in 2009 and later matched to an unsolved case from 2003.

“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote for a 5-4 majority.

“Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Antonin Scalia wrote in dissent.

Civil libertarians say the ruling opens up vast potential for abuse of police power.

“Predictably, in the hours since the court’s decision was announced, some, including the Cook County State’s attorney’s office, have called for collection of DNA for more crimes, and upon arrest,” Yohnka said. “DNA is far more than a fingerprint; it reveals sensitive, personal information about us, including making predictions about our health . . . Once massive amounts of DNA is catalogued, it might be shared with others, and lead to genetic discrimination.”

Chicago Police Supt. Garry McCarthy sees a far different potential. “The U.S. Supreme Court decision will give all parties a greater degree of certainty when police make arrests in cases where DNA evidence has been left at the scene of the crime. This ruling will help ensure we are even better able to hold the right people responsible for crimes committed,” he said in a statement.

The FBI’s DNA Index System contains more than 10 million criminal profiles, plus 1.1 million profiles of arrested individuals.

The Illinois State Police manage DNA testing for all law-enforcement agencies.

“In Illinois, we do not have an ‘all-arrestee’ law,” spokeswoman Monique Bond emphasized. But that could change.

“The court ruling enables the State of Illinois to begin to collect DNA swabs from individuals upon arrest. It would be determined by the Legislature. But this type of testing would be immensely helpful, allowing police and law enforcement to identify arrestees much earlier on in the process,” Daly said.

DNA testing also helps exonerate the innocent, she pointed out.

But legal experts say even so, the risk created by the court’s ruling is too great.

“The Fourth Amendment requires you have probable cause to conduct a search. Even the Supreme Court recognized that taking a swab from inside somebody’s mouth is a search,” Kling said. “What they said is that because it’s a so-called ‘limited’ intrusion, it’s not really that much of a violation. For lack of a better analogy, either you’re pregnant or you’re not. Either the Fourth Amendment is violated or it’s not.”



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