Requiring a DNA sample from persons convicted of sex crimes and other violent offenses was justified on the grounds that these offenders tend to repeat their crimes and that DNA is often found on victims of violent crimes or at the crime scene. DNA profile databases of known criminal offenders are a genetic version of physical fingerprints and mug shots of convicted offenders, and they minimize, if not eliminate, the problem of partial fingerprints or the need for witnesses to look at hundreds of pictures of suspects. And because crime victims and other witnesses are notoriously inaccurate about what and who they saw – and in many instances there are no witnesses – DNA was expected to be an objective and definitive “witness” to a crime.
There’s a certain compelling logic to the claim that collecting and storing a DNA profile is just like collecting and storing fingerprints or pictures of convicted offenders. For sex offenses and crimes where DNA is likely to be left on the victim or at the crime scene, a database of DNA profiles of convicted offenders gives the police a head start in identifying suspects. But what about felony drug offenses like illegal prescriptions for Oxycodone or Ritalin, or felonies like embezzlement or perjury? What about misdemeanor offenses? What about collecting DNA from persons who are arrested but never prosecuted, or if prosecuted never convicted of the crime? What about someone arrested for blocking traffic while picketing an abortion clinic or attending a rally against the war in Iraq?
Today, over a third of the states compel persons convicted of certain misdemeanor offenses to provide a DNA sample to law enforcement officials, and 13 states require a DNA sample at the time of arrest. At the federal level, recent laws authorize DNA to be collected from persons who are arrested for committing a federal offense, or are facing charges or have been convicted, as well as from people who are not U.S. citizens or lawful permanent resident aliens in the United States and have been detained under the authority of the United States.
If a DNA profile is nothing more than a high-tech – albeit allegedly more accurate – version of a physical fingerprint that the police take from nearly all arrestees, then what’s all the fuss about? Why do some civil liberties and privacy advocates argue that DNA collection laws violate privacy rights and federal constitutional protections against unreasonable searches and seizures? And why are they concerned about the indefinite storage, use, and sharing of DNA profiles and physical DNA samples? Recent high-profile cases of prisoners – including some who have spent nearly 20 years behind bars – being exonerated of the crime on the basis of DNA evidence show that DNA can identify the innocent as well as the guilty. Since the vast majority of criminal offenders are teenage boys and adult men, maybe every young boy and adult male should voluntarily deposit a sample of their DNA with the local police. Better yet, if none of us has anything to hide, why don’t we all drop by the local police department or FBI office and leave a sample of our DNA?
The involuntary taking of DNA from arrestees and convicted offenders has enormous implications for due process, liberty, autonomy, and privacy. So too does obtaining DNA from abandoned objects like coffee cups, cigarette butts, and gum wrappers. Even when DNA is collected with consent from crime victims and their relatives or from relatives of missing persons, these concerns are still relevant if the DNA samples and profiles are archived in searchable databases. Who has access to these genetic databases and to DNA samples, and for what purposes? For how long? Is due process – a key requirement of the rule of law – met when everyone whose DNA profile is archived is a genetic suspect, even if they’ve never been convicted of a crime? What are the implications for justice and fairness when genetic suspects are likely to be males from lower socioeconomic backgrounds and from certain racial and ethnic groups? What are the privacy and liberty implications for the genetic relatives of individuals whose DNA profile is in a law enforcement database? What are the implications for liberty and privacy when nation states share DNA profiles for law enforcement and national security purposes? Who governs these genetic databases to ensure that they are not misused?
In subsequent Forum essays, I’ll address these and a host of other questions that raise ethical, social, and legal issues about the collection, storage, and use of genetic material for law enforcement and other purposes. For instance, many of these issues also arise in the medical and research contexts, and they overlap with issues related to national governments and local law enforcement officials collecting and sharing other forms of identifiable bioinformation like fingerprints, iris patterns, and facial scans. In the meantime, think about where you leave your DNA, who has it, what they do with it, and whether any of that matters.