Does the Presumption of Innocence Justify Different Fourth-Amendment Treatment for Pre-Trial Detainees?
Judge Cercone suggests that one important fact that distinguishes a pre-trial detainee — whom he regards as holding the right not to have DNA routinely taken — and the convict, who does not hold this right, is the presumption of innocence. The judge calls this “the moral polestar of our criminal justice system.” Prior to being convicted of a crime, in other words, a person must be treated as innocent. And there is no reason to keep the DNA of an innocent person in a national database of criminals’ DNA. But is the presumption of innocence relevant to the issue of whether the government may routinely sample and analyze pre-trial detainees’ DNA? On one hand, it is true that arrestees do not relinquish all of their constitutional rights as they await trial in jail. The reason that their body cavities and rooms may be searched without suspicion has to do with the needs of the institution, rather than the arrestee’s status as a person charged with a crime. On the other hand, a person charg
