By escalating DNA surveillance, the Trump administration is causing a “worrying trend” that is leading the country down a dangerous path, warn law professors Daniel I. Morales, Natalie Ram and Jessica L. Roberts in an opinion piece published on January 23 in The New York Times.
After announcing a new rule in October 2019, the federal government officially began collecting DNA from any person held in immigration custody on January 6 of this year. Prior to that, detained immigrants were only required to give fingerprints to border officials. Morales, professor at the University of Houston Law Center, Ram, associate professor of law at the University of Maryland Francis King Carey School of Law, and Roberts, director of the Health Law & Policy Institute at the University of Houston Law Center, believe “the federal government took a decisive step toward collecting and tracking large numbers of its citizens’ genetic information too.”
The authors write in The Times:
The federally administered CODIS, or Combined DNA Index System, has expanded dramatically in scope since its inception. Virginia established the first forensic DNA database in 1989, with the federal government following suit in 1994. Today, all 50 states, the District of Columbia and the federal government collect, store and share genetic information through CODIS. Initially, many states limited DNA collection to sex offenders. But today, nearly all states compel DNA from all convicted felons, while many states collect DNA from individuals convicted of mere misdemeanors. Most states also collect DNA from some individuals merely arrested on charges of, but not yet convicted of, a crime.
The Supreme Court of the United States ruled in favor of expanding CODIS to include people arrested for suspicion of committing a crime in Maryland v. King, which late Justice Antonin Scalia argued against in 2013, saying it would create dire civil rights implications.
The professors continue:
Despite these significant expansions in CODIS, one constant has remained: Until now, CODIS’s crime-solving components have contained genetic profiles only of individuals connected with criminal activity, whether accused or convicted. Now, for the first time, CODIS will warehouse the genetic data of people who have not been accused of any crime, for crime detection purposes. Noncitizens in immigration custody are not criminals as a rule. The vast majority of immigration infractions that land an immigrant in detention are civil in nature, akin to the IRS asking a citizen to pay a penalty when she fails to withhold enough money from her paycheck. And in the case of refugees seeking asylum (a large and increasing proportion of the detained noncitizen population), international and domestic law expressly allow these individuals to enter the United States to claim the right to refuge. By severing the longstanding prerequisite of prior (alleged) criminal conduct for compelled DNA collection, the government puts us all at risk.
It is a small leap from requiring immigrants to submit their DNA to verify familial relationships, or to mitigate future criminal risk (the pretexts the government has cited to justify its recent policy change) to requiring DNA screening of immigrants for health, disability, intelligence or disease.
Perhaps most importantly, Morales, Ram and Roberts push American citizens to ask what a rule change like this ultimately says about who and what we are as a country. “How we treat the people that cross our borders speaks to our identity as a nation,” the authors write. “Immigrants are Americans of the future and the criteria we use to select or bar immigrants reflect our aspirations for the society we wish to become. The new DNA collection program may yet revive darker, eugenic impulses in immigration history.”
To read the entire op-ed, click here.