United States

 

  • State Rules on Partial/Familial Searching
  • States Collecting DNA Samples from Arrestees
  • National Report
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The Federal Bureau of Investigation’s (FBI) Combined DNA Index System program (CODIS) enables federal, state and local laboratories to store and compare DNA profiles electronically and thereby link serial crimes to each other and identify suspects by matching DNA from crime scenes to convicted offenders or arrestees (where state legislation allows this).  All 50 states and the FBI now collect DNA samples, retain the profiles generated from those samples in the databases, and compare the database entries against DNA profiles of biological evidence. There are obviously differences amongst the states as to collection criteria, sample retention and removal of entries from the databases.  It is impossible to give a complete overview of the position in each state in this paper and the aim is merely to briefly summarise the contents of the main pieces of legislation and to highlight trends amongst states.

 

Legislation: 

·                     The DNA Identification Act, 1994, allows for DNA identification records to be kept of: (a) Persons convicted of crimes, this will vary from State to State in accordance with the DNA database laws of each State; (b) DNA samples recovered from crime scenes;  (c) DNA samples recovered from unidentified human remains; and (d) DNA samples voluntarily contributed from relatives of missing persons. (Refer to See 42 U.S.C.S. §14132(a).).

·                     The Justice for All Act, 2004, allows for the retention in the National DNA Index System (NDIS) of DNA profiles from persons who have been charged in an indictment, even if the charges are eventually dropped or not pursued.  The Act affects the qualifying offences for entry onto the National DNA database. Previously these were limited to sexual offences and other serious violent crimes, but have been amended to include "any felony".  In terms of the Act, DNA profiles may not be uploaded to the NDIS if:  (a) The arrestee has not been charged; or (b) DNA samples have been submitted voluntarily for the purposes of elimination from a crime sample.

·                     The Violence Against Women Act, 2005, allows for the uploading of an arrestee's DNA profile into the NDIS at the same time that their fingerprints are taken and uploaded onto the national fingerprint database. Previously DNA could not be uploaded until the arrestee was charged or indicted.  The Act removes the burden from the State to remove an arrestee sample from the NDIS if the arrestee was later acquitted or if the charges were dismissed. The burden shifts onto the arrestee, who will be required to file a certified copy of a final court order establishing that all indexable charges have been dismissed, resulted in acquittal or that no charges were filed.  The Act allows the Federal Government to take and retain DNA samples from Federal arrestees and from non-U.S. citizens or permanent residents who are detained under Federal authority. The Act gives the Attorney General the authority to issue regulations requiring the collection of such DNA profiles including requiring other Federal agencies to collect these: e.g. immigration agencies.

 

Who must provide a sample:[1]

·                     Twelve states:  Alaska, Arizona, California, Kansas, Louisiana, Minnesota, New Mexico, North Dakota, South Dakota, Tennessee, Texas and Virginia – now have laws authorizing arrestee sampling.

·                     All 50 states require that convicted sex offenders provide a DNA sample, and states are increasingly expanding these policies to include all felons or many serious felony offenders.  To date (July 2008), 46 states require that all convicted felons provide a DNA sample to the state’s database.

·                     Eleven states to date specify certain misdemeanors among those who must provide a sample. 

·                     There are 28 states that include DNA from delinquent juveniles in the database, of these there are 12 states that restrict the scope of qualifying offences with regard to juveniles.  For example, California provides that qualifying offences are the same for adult convicts and juvenile delinquents, but juvenile arrestees, unlike adults, are excluded from the database.

 

Retention of information and samples:[2]

·                     Thirty-eight states contain statutes that detail expungement criteria and procedure.  DNA samples and records are expunged upon a change in the disposition of the case in the convict’s favor, provided that the offender has not been convicted of a separate qualifying offence.  The state statutes differ, however, in the extent to which the disposition of the case must change before expungement proceedings begin.  Some states only require that the defendant’s conviction be reversed, whereas others require that the conviction be reversed and the case dismissed.  Of the 38 statutes that detail the expungement procedure, 33 require the offender to initiate the process.  Of these 33 it is only Texas that contains a statutory provision requiring the defendant to be advised after his acquittal of his right to expungement. 

·                     The criteria for retention vary from immediate removal, if a sample is not used, to retention of a sample for at least 35 years, to permanent retention for certain specified offences.

 

In general, the statutes authorize use of DNA and the database for law enforcement purposes, and for purposes of maintaining and improving the database.  However, in certain states the creation of population statistical databases, tools which allow for the statistical analysis and interpretation of anonymous DNA profiles collected from convicted offenders, are established.  DNA databases in the US typically authorize certain uses of offender’s genetic information and prohibit unauthorized uses and are therefore usually exempted from genetic privacy laws.  The DNA statutes of the states also differ with regard to the criminal and civil liabilities provided therein for the misuse of the DNA database.  Typically criminal penalties are imposed for: a) tampering with the DNA samples or records; b) improper entry of DNA samples and records into the database; c) improper access to and use of DNA samples and records; and d) improper disclosure of DNA samples and records.  Only seven states provide for a private cause of action for individuals aggrieved by the misuse of the database and four states explicitly provide immunity from civil and / or criminal liability for misuse of the database.


 


 



[1] See http://www.ncsl.org/programs/cj/dnadatabanks.htm “State Laws on DNA Data Banks Qualifying Offenses, Others Who must provide sample” (July 2008).

[2] See Survey of State DNA Database Statutes (2004) available at www.aslme.org/dna_04/grid/guide.pdf.