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.
Related Articles
16 users responded in this post
Then there’s always the possiblity that the cop just has it out for you. It could be that you looked at him wrong, but it wouldn’t take much to make your life into a living hell if you piss off a police officer.
Take the Tritter arc of House. All it took was House being his usual assholish self to piss of a detective who makes it his mission to bring him in.
Personally, my approach to privacy issues avoids the notion of “How can a ruler use this to micro-manage your life?” and heads more towards “How can some asshole abuse this personally?” Let’s run with the issue of fingerprints. One of the main utilities of fingerprinting the accused is that it connects them to the evidence previously collected. But pre-emptive fingerprinting creates occasions in which evidence can be planted, easily. All it takes is one corrupt cop. Safeguards exist not because abuse happens, but because the possibility of abuse exists.
That said, I can be split on issues like this. I do, for one, think DNA registries can have all manner of useful applications. Unfortunately, I can see where the potential abuse also exists, not only for the same reasons as the fingerprint issue, but because there’s a lot of room for abuse by misunderstanding. An unscrupulous technician, for example, could sell the names of people who are “known” to have the “lazy” gene to area employers. (To take an extreme example.)
There there are the real-life asshole cops like this:
http://articles.latimes.com/2009/mar/11/nation/na-texas-profiling11
Now, I don’t know about you guys, but I sure as shit don’t want these assclowns having my DNA or fingerprints on file for their abuse.
I live in a state where issues like this have come up a few times, and I always see it as an institutional method (since it’s always a bill sponsored by a republican) to weaken the procedural protections of Probable Cause. Probable Cause is a slippery concept by its nature, but it exists to require a state actor to articulate his suspicion sufficiently to exercise his coercive authority against another. In short, there must be a good reason to arrest someone, or detain someone, or to “take” someone. This causes cops to “play fair” or the evidence collected can’t be admitted. The reason is simple: Arbitrary arrests and detainments might lower the crime rate statistically (if everyone is in jail, no one’s breaking the law), but they do violence to the fabric of a democratic society. Because a just society of laws puts a higher value on personal liberty than on a vague concept of general public safety.
MGK has it right when he says police work is hard. It’s hard for a reason: it very directly impacts people’s lives. This is why it’s important to have HIGH INFLEXABLE standards when dealing with evidence. This is why it’s important to require the office to be able to justify and articulate the very good reasons for imposing himself or herself on someone else.
This is why the weakening of these civil protections oppresses you.
Now when I read the article, my understanding is that they were fingerprinted prior to being charged, but were being lawfully detained? Is that not correct?
It’s been a bit since I did law classes, but I am pretty sure in the US that meets the standard for arrest. So is there a difference in Canadian/US law that I’m missing here?
The fundamental issue is that the act of putting a person on a List has consequences, whether it’s a fingerprint database or a no-fly list, even if the reasons for the list are legitimate.
It also creates a perverse incentive against transparency by rewarding anyone who takes steps to stay off of a List.
This is really the same as “I don’t care if they read my mail…I’m doing nothing wrong!”
Which is fine as long as you get to decided what “wrong” is.
The old “only wrongdoers need fear this” argument is almost as messed up as “anyone who ever criticizes anything any cop ever does, and doesn’t uncritically back everything the cops do at all times automatically wants raging anarchy and for everyone’s babies and grandmothers to be murdered in their beds” argument (which shows up depressingly often in the comments for the Globe And Mail’s Dziekanski incident articles).
Don’t they already have stuff like this? I mean, when I was a kid, my parents had my brothers and me get fingerprints taken and kept by some people who were collecting them from all kinds of kids. There was a real rash of child abductions at the time in Ontario; maybe they destroyed that stuff later.
Andrew – me, too. I made my dad promise me that there was some kind of option you could check that meant they would erase your fingerprints from their files when you became a legal adult. I’m pretty sure he lied when he said yes.
Anyway, this issue is concerning to me on a number of levels, not the least of which being in combination with all of the tension between cops and anti-Olympics activists here in BC. Pretty much everyone in my immediate circle is on wary if not outright bad terms with the cops in our community right now due to Olympics-related tension, and the last thing we all need is for the cops to have the right to MORE information about us (just about everyone I know has been “interviewed” by cops looking for info on all our personal relationships, how we’re connected, blah blah blah).
People often forget that not being unfairly targeted by cops is a privilege of skin colour, class, and to an extent political affiliation. (I was raised to believe in and practice peaceful resistance, but when it comes out that I’m an anarchist people tend to assume that I want to kill babies and bomb hospitals or what the fuck ever – especially cops.) I see in the denial of the problems inherent in this fingerprinting policy a denial of these privileges, and frankly, that’s kind of bullshit. Just because it’s not a problem for YOU doesn’t mean it isn’t a problem for other people.
That’s why I judge the ones who take shortcuts. And since it does result in innocent people getting imprisoned sometimes I see no reason to not judge them.
These people have got the power to destroy somebody’s life. There is absolutely no excuse for them to be going around making assumptions about that person’s innocence or guilt and then building a circumstantial case out of whatever dirt they can dig up because of what their gut tells them.
I see the point you’re making, but there are also other pragmatic reasons for fingerprinting people: Identifying missing persons and proving a person’s true identity.
In the U.S. virtually every state and federal employee (including military) is fingerprinted upon the start of their employment. Many states require first time drivers to be fingerprinted. Other states require medical professionals to be fingerprinted.
If the fingerprint data base is value neutral, (i.e., it is known by everyone to include both law abiding citizens and criminals) then no inference can be drawn by the police simply because a suspect’s or material witness’ prints turn up on file.
In the scenario you cited, the police would want to clear every fingerprint they find at a crime scene so they can eliminate suspects. If a person is known to have visited the scene of a crime, even if they aren’t a suspect, the police will take their prints in order to eliminate them from the total number of prints found.
So if the cops already have a shady character whom they think was at the scene of a crime, they’ll print him/her anyway, regardless of whether or not their prints are already on file.
Buzz, I can’t speak to the federal government, but I don’t think that’s the case for states. I’ve been a state employee in North Carolina for more than 8 years and I’ve never been fingerprinted for my job (I HAVE been, but that was unrelated to work). There are cases of fingerprint for employment, but those are all based on Licenses awarded by the state that require background checks (medical/law licenses, etc.). These are still voluntary programs a person has to submit to in order to enter a profession.
The identity theft example is one I thought about citing before, but it’s useful in such a narrow set of examples I thought it would muddy the issue (which is not the case here). And, besides, I think fingerprinting (or more likely photographing) someone is only useful when they HAVE ALREADY BEEN STOPPED for some reason and are claiming to be someone and have no means to prove otherwise (like a traffic stop when a person doesn’t have a license or photo ID. But again, an office needs to have a reason to pull that person over).
The issue at play here is police REQUIRING someone to submit fingerprints for no reason at all. If someone is arrested and charged they have a lot of important rights that automatically kick in. If a cop says “I’m not charging you, and I’m not arresting you, but I’m going to take your fingerprints because I might find something later or it might be relevant to an existing investigation, but maybe not.” that IS a civil violation (at least to my reading of the US Constitutional law. Your milage may vary).
“We’ll want to take your fingerprints to exclude you from the crime scene.” is MUCH different from “Hey, fingerprint that random guy cause I don’t like the way he looks.”
–“We’ll want to take your fingerprints to exclude you from the crime scene.” is MUCH different from “Hey, fingerprint that random guy cause I don’t like the way he looks.”
It often amounts to the same thing, the only difference being how diplomatic the officer is. Just like cops can almost always get a person to submit to a car search by saying, “You don’t have anything illegal, do you? So you don’t mind if we take a look?” or something similar, even though people ought to know cops don’t want to search their cars unless the cops expect (or hope) to find something.
(Ahem. Hit “submit” too soon.)
My point was, actually, that cops already weasel prints out of people who don’t realize they can refuse, or who understand that refusing will make them look even more guilty than the cops already think they are. The cops definitely shouldn’t have additional powers to force people to provide prints and DNA.
I still think fingerprinting kids for possible identification purposes is okay, but I think the parents should get to keep the card, rather than the police. Should the child go missing, the cops can have the card. Otherwise, they don’t need it.
In principle, I have no objection to a universal fingerprint program, because if everyone is in it for no reason in particular, then it can be neutral in a court, assuming proper jury education, which is a whole different ball of snakes.
This program, however, is automatically prejudicial. Think about jury reaction when told that the print used to ID a murder suspect came from an arrest for aggravated assault, or the like. I simply don’t think the justice system we have is impartial enough to use this wisely.