The Constitutionality of DNA Sampling on Arrest

Abstract

Every state now collects DNA from people convicted of certain offenses. Law enforcement authorities promote offender DNA databanking on the theory that it will identify offenders who commit additional crimes while or probation or parole, or after they have finished serving their sentences. Even relatively small databases have yielded such dividends. As these database searches uncover the perpetrators of rapes, murders, and other offenses, the pressure builds to expand the coverage of the databases.

Recent proposals call for extending not merely the scope of crimes for which DNA databanking would be used, but also the point at which the samples would be collected. The United Kingdom and most European countries already collect and store DNA from all persons arrested for a wide range of offenses. More than one state in this country has enacted legislation enabling DNA sampling on arrest. In other states, legislators have introduced bills that would authorize or require DNA databanking for arrestees. Although the backlog of existing DNA samples from convicted offenders awaiting analysis makes these proposals unappealing, the situation will change as more resources are applied to reduce the backlog and the technology for analyzing the samples advances. At that point, the constitutional questions will spill out of the editorial pages and into legislative chambers and courthouses throughout the country.

This article examines the constitutionality of taking, analyzing, and storing DNA samples and data from individuals who are arrested. The most salient constitutional protections are the Reasonableness and Warrant Clauses of the Fourth Amendment, the Self-incrimination Clause of the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment. The analysis here shows that these protections do not foreclose a carefully constructed system for compelling individuals subject to custodial arrest to supply samples of their DNA.

Keywords: DNA databases, databanks, arrest, search and seizure, self-incrimination, due process, privacy

JEL Classification: K4, K42