Update on Controversial Police DNA Collection in the States

Posted by Pete Shanks April 3, 2014
Biopolitical Times
States in blue currently allow <br>DNA to be taken upon arrest<br><br>

California's Proposition 69, which was passed in 2004, expanded the police right to collect and store DNA data. Perhaps most controversially, Prop 69 required the collection of samples from anyone arrested for a felony, which can then be kept in the database even if the arrestee is never convicted of a crime. The ACLU has been challenging this all along, as unconstitutional, and will continue to press its lawsuit despite a setback on March 20.

The California case was put on hold when the U.S. Supreme Court agreed to consider a similar but not identical Maryland law, which it eventually upheld. That ruling was narrow, and referred to "serious crimes." On that basis, the Ninth Circuit Court of Appeals in San Francisco unanimously declined to declare the collection of DNA upon arrest to be absolutely unconstitutional [pdf]. However, the ruling also suggested that there could be a distinction between "serious crimes" and "all felonies" which a lower court might consider. Judge Milan D. Smith vehemently disagreed on this point with the other ten justices, and filed a separate concurrence asserting, "This case is over."

There's an analysis of the March decision by Jennifer Wagner at Genomics Law Report and by Hank Greely at the Stanford Law and Biosciences Blog (with links to more background). Wagner suggests that legislative remedies are more likely to constrain the collection of DNA than judicial ones, and notes that efforts to provide them are underway in Sacramento. Greely thinks there may be a viable distinction between "serious crimes" and "all felonies" but is understandably reluctant to predict how future courts might rule.

Similar controversies are brewing in other states, with several recent developments. Oklahoma now seems to be reluctant to take DNA upon arrest, but Georgia will probably decide to do so. Wisconsin is fine-tuning its legislation. Overall, according to Forensic Magazine, 27 states were collecting DNA samples upon arrest in February, at least in some circumstances.

The National Conference of State Legislatures' (NCSL) DNA Laws Database shows a slightly lower number, but seems to be a little out of date, as is this September 2012 article from the Department of Justice. The NCSL's remains the most convenient searchable database. It allows searches by state and various categories, including "collection of DNA samples from arrestees," that return summaries of the relevant state law as well as the statute number.

The implementation of forensic DNA databases continues to raise concerns about civil liberties, privacy and racial justice in countries around the world. Ireland is set to establish a system shortly, and South Africa is expanding DNA collection. The patchwork of laws in the United States seems likely to remain in flux for some years to come. There may still be a possibility of establishing safeguards, but we are running out of time.

Previously on Biopolitical Times: