Policymakers are increasingly coming to grips with legal issues related to taking DNA samples from people who have not been convicted of crimes.
The practice of taking DNA samples from convicted criminals is now largely uncontroversial. The courts have routinely upheld laws that authorize DNA collection from both current and former convicts, and the resulting databases of DNA have become powerful tools to analyze forensic evidence collected from crime scenes. The databases help to clear innocent suspects and redirect law enforcement officials away from unproductive investigations. They also help to convict guilty criminals and clear the wrongfully convicted.
A trend that is causing significant debate is gathering DNA samples from people who are arrested but not convicted. About 20 states and the federal government have passed legislation that requires DNA collection upon arrest. This legislation has raised concerns that crime laboratories may be unable to manage an influx of samples from a new source and that preconviction DNA collection may violate Fourth Amendment privacy guarantees.
Some people worry that collecting DNA creates the potential for abuse of genetic information stored in databases. Others point out that the federal and state privacy laws and penalties that apply to crime labs are stringent — far more stringent than the rules governing private entities that collect blood and saliva for medical or insurance purposes. Additionally, crime labs process only the DNA that applies to human identification. They do not process DNA that identifies predisposition to diseases. Indeed, most crime labs are incapable of doing that kind of DNA processing.
Proponents of laws to collect DNA from arrested persons say these laws are no different from the long-standing, routine practice of taking fingerprints of arrested suspects. Law enforcement officers run fingerprints against national databases to confirm a suspect's identity and learn of any outstanding warrants against the person. Fingerprints remain on file unless a person makes a formal request to remove them. Proponents believe that taking DNA samples should be thought of in the same way and that the process will yield similar benefits.
Preconviction DNA Sample Collection
The DNA Fingerprint Act of 2005 requires that, beginning January 1, 2009, any adult arrested for a federal crime provide a DNA sample. The law also mandates DNA collection from persons detained under the authority of the United States who are not U.S. citizens or are not lawfully in the country.
Even before passage of the act, five states — California, Louisiana, Minnesota, Texas and Virginia — had statutes that mandated collecting DNA from people arrested for various qualifying offenses. Although some states limit preconviction DNA collection to violent offenses or sex crimes, other states include all felonies, and some extend the requirement to misdemeanors as well. States' legislation requiring preconviction
DNA collection varies. Variations include the types of crimes for which samples are collected, applicability of the law to juveniles and procedures for deleting profiles. Some state laws have faced Fourth Amendment challenges in court.
After law enforcement officers collect a DNA sample, laboratory technicians translate the sample into a DNA profile (a numerical sequence). It is that profile, and not the genetic material itself, that enters the DNA database. The information contained in the DNA profile does not predict or identify physical characteristics, race, medical disorders or genetic disorders. The profile remains in the database if a court convicts the person. But what happens if the person is not convicted? That depends on the jurisdiction.