If you put a frog in a pot of boiling water, it will leap out right away to escape the danger. But if you put a frog in a pot of water that is cool and gradually heat until boiling, the frog will not be aware of the danger until it is too late. Often, the same holds true when we are faced with creeping encroachments on our constitutional rights.
This principle was most recently evident as the House and Senate were considering the Debbie Smith Reauthorization Act, legislation designed to help eliminate the nationwide backlog of rape evidence kits and bolster DNA testing of criminals and crime scene evidence.
In early summer, the House passed an amendment that would have brought the pot to a boil with cash incentives expanding the scope of state DNA collection efforts to anyone merely arrested for a violent or sex crime, including a misdemeanor sex offense. In addition to eroding the fundamental constitutional principle of innocent until proven guilty, this amendment would have thwarted the goal of the underlying legislation — to reduce the ever mounting backlog of unprocessed DNA evidence from rape crime scenes.
The ACLU has continually supported the use of DNA testing as an important crime fighting tool when used appropriately. So we were pleased when last week Senator Joe Biden (D-Del.) came up with an alternative way to reauthorize the Debbie Smith Act without the amendment. The Biden bill will move us closer to realizing a reduction in rape kit backlogs without the heedless expansion of DNA testing to non-convicted arrestees.
What that bill shows is there needn’t have been a choice between safety and long-held constitutional rights. We urge the president to support this constitutionally sound approach. The Biden bill will enable us to bring criminals to justice and provide closure to victims — without jettisoning our fundamental constitutional rights.