In the fingerprinting post on Monday, will writes:
I’m still not clear on how the police having my fingerprints — or my DNA — on file could be used to oppress me.
Abandoning the dire fantasies of totalitarian government – for that is what they largely are – we can find the idea of oppression in harm inflicted on the citizen that is, by and large, unintentional. I’m not talking here about the Glenn Beck school of “I have to pay taxes and so I am oppressed.” I’m talking about mistake.
Like I said before: I’m not anti-cop. Cops do a hard job and most of the time they get it mostly right. But they never get it entirely right. There are always people who slip through the cracks of proper procedure. I spent a year working for the Innocence Project at Osgoode, helping people challenge convictions they argued to be unjust, and in every case where I think there was someone genuinely innocent convicted of a crime, there was a common thread: the police had already decided that this person was guilty.
Again: the police are right, most of the time, when somebody is guilty. But not always. And it’s the not-alwayses that become the horror stories of the justice system. The spouse isn’t always the person who murders their partner, regardless of how common it is for that to be the case (and it is common, believe me). The black drug dealer might be a drug dealer, but it turns out he didn’t kill anybody. And so on and so forth.
And so this is how having your fingerprints on file can be used to oppress you: you are a suspect in a murder that you did not commit. The police regard you as the likely culprit. They look for evidence to tie you to the crime, and because you knew the guy, hey what do you know your fingerprints are all over the place. The police have your fingerprints already, which paints you in the eyes of a jury as a shady individual. That combination of circumstantial evidence and worsening of your image is enough to get you sent away to a lengthy jail term for a crime you did not commit. And you can’t appeal based on the evidence being wrong – the justice system doesn’t work like that. You can only appeal on points of law, not points of fact (IE, you can argue that your fingerprints were wrongly introduced as evidence because the potential for creating bias outweighed the probative value of the evidence – but, in all seriousness, good luck with that approach).
The police have a tough job. Sometimes they take shortcuts. It happens, we shouldn’t really judge them for it, and most of the time it doesn’t hurt anybody – except when it does. That’s why we need institutional safeguards built into the system to make sure that poor evidence collection methods aren’t abused. And that’s why de facto fingerprinting of individuals who haven’t even been arrested for a crime is wrong.