Arrested and Swabbed: DNA Tests Challenged

by jeeg 11. August 2011 23:33

Serial killer Dennis Rader was caught with the help of DNA analysis. Now, laws in 25 states allow for DNA samples even before a conviction.

Cheek swabs or blood samples from those arrested for felonies offer law enforcement officials unique identifying tags, much like fingerprints or bar codes on products. These tags are recorded in state and national databases and can be used later to match samples from the scenes of crimes that haven't been solved. The practice of taking fingerprints of suspects upon arrest and storing them has been used for decades and has yet to face a serious constitutional challenge, according to David Kaye, a law professor at Penn State University and an expert on DNA evidence. And nearly every state in the union allows for DNA samples to be taken from at least some convicted felons. But privacy advocates say laws in 25 states and at the federal level allowing for DNA samples prior to conviction violate the Fourth Amendment's ban on "unreasonable searches and seizures." Moreover, even if only a tiny portion of DNA information winds up in the databases, most law enforcement agencies, including the Federal Bureau of Investigation, keep the entire sample. "That's problem number one for me in this debate," said Jules Epstein, a law professor at Widener University in Wilmington, Del. "The information sent to [the databases] is just a bar code, but if the police still have the Q-tip from the cheek swab, well, that Q-tip has a lot more information about you. Why should the police have that?"

In recent months, conflicting rulings have been handed down by judges across the country. Last week, a state appellate court in San Francisco struck down California's law requiring law enforcement to take a DNA sample from anyone arrested for a felony. Ten days earlier, a closely divided federal appellate court in Philadelphia upheld the constitutionality of a similar federal law, reversing a 2009 decision striking down a part of the law on Fourth Amendment grounds. Next up is a separate case in San Francisco next month, addressing whether someone can be required to give a DNA sample prior to being released on bail. The case will be heard by a panel of 11 federal appellate judges. A federal appellate court in New York state will take up similar issues in a case from Rochester this year or next. "It's impossible to predict exactly what [the Supreme Court] is going to hear, but it's starting to feel like one" the justices would weigh in on, said Erin Murphy, a law professor at NYU. Many advocates of the laws, including law enforcement officials and families of crime victims, say that the DNA profiles sent to the databases are like fingerprints, simple markers used for identification purposes.

"The privacy intrusion here is really minimal," said Jayann Sepich, the co-founder of DNA Saves, a New Mexico-based organization that advocates arrestee-sampling laws.

It's the retention of the entire sample that stirs suspicions. Some fear that gene technologies will be developed down the road to unearth even more private information, like whether someone has a predilection for violence. The DNA "profiles" sent to the databases contain only about a dozen "genetic locations," a tiny percentage of all of an individual's DNA. Authorities keep the full sample chiefly for quality control, in case a DNA profile gets lost or deleted or they need to confirm a match with a crime scene profile.

Others object to the timing of the sampling, at arrest rather than after conviction. In 2009, one-third of those arrested for felonies in California weren't convicted of a crime, according to Michael Risher, a lawyer with the American Civil Liberties Union in San Francisco.

"What's the governmental interest in taking DNA from those who are arrested but not convicted?" he said. "The guys whose DNA you want are the guilty ones."

NYU's Ms. Murphy worries that if the police can take DNA merely upon arrest, there may be little to stop government from requiring samples in other contexts—to receive federal benefits, for example. "We're on a trajectory toward allowing DNA sampling in more and more contexts," she said. "It might be that someday you need to give DNA to get a student loan."

Law enforcement experts say DNA sampling can be of great value in fighting crime. According to a study conducted by the city of Chicago in 2005, if DNA samples had been demanded of arrestees in Illinois since the early 1990s, some 60 violent crimes could have been prevented, including more than 50 murders and rapes, although such contingencies can never be proved.

DNA sampling upon arrest "is very effective, and we have studies to show that," said Mitchell Morrissey, Denver's district attorney and a leading proponent of arrestee sampling.

Mr. Morrissey referred to a recent study in Denver, similar to the Chicago study, which showed that arrestee sampling of five suspects probably would have prevented 52 violent crimes, including three murders and 19 sexual assaults.

"It again proved the importance of knowing who you have when you arrest somebody," he said.

Ashby Jones, Wall St. Journal


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