As Though They Were Not Children: DNA Collection from Juveniles

Abstract

The federal government and every state but Hawaii mandate DNA collection from juveniles as a result of some contact with the criminal justice system. A conviction in criminal court, a delinquency adjudication in juvenile court, and even a mere arrest can trigger compulsory DNA collection. Law enforcement also seeks DNA from juveniles based on their consent. This Article provides a comprehensive accounting of current juvenile DNA collection legislation and case law. It situates DNA collection from juveniles within the law’s long-standing and renewed emphasis on special treatment of children both generally and with particular attention to criminal law and juvenile justice. Bringing to bear Supreme Court jurisprudence, neuroscientific and psychosocial research, juvenile court history, and the critical lens of childhood studies, it argues that compulsory DNA collection from juveniles is not reasonable under the Fourth Amendment and cannot withstand scrutiny. The government interests served by DNA profiling are reduced with respect to juveniles, and the privacy interests are enhanced. Many of its benefits, including deterrence, are lost with regard to juveniles. The Article calls for restrictions on the practice will protect children, and their childhood, while preserving law enforcement’s ability to exploit genetic databasing and aggregate data collection where its rationale justifies its application.

Keywords: Juvenile, Juvenile Justice, Children, Youth, Adolescents, Crime, Criminal Law, Criminal Procedure, Fourth Amendment, Warrantless Searches, DNA, DNA Collection, DNA Profiling, Juvenile Court, Childhood

JEL Classification: K14, K42