A few weeks back, we posted a discussion of the issues surrounding the current system of forensic DNA profiling, with an emphasis on the Combined DNA Index System (CODIS). In that post, we noted that the federal government had enacted a policy of taking DNA samples from individuals arrested for certain crimes and retaining the samples in CODIS. To date, 23 states have enacted similar laws, and the federal government may soon give the other 27 states incentives to follow suit.
On May 18, the House of Representatives passed the Katie Sepich Enhanced DNA Collection Act of 2010, informally known as Katie’s Law.1 Under the bill, those states that collect DNA from individuals arrested for certain serious crimes (murder, voluntary manslaughter, serious sexual offenses or serious kidnapping offenses) and compare the samples to those in the CODIS database at least once receive a 5% bonus on certain federal crime prevention grants.2 States that also collect samples from individuals arrested for less serious crimes and submit all profiles collected from arrestees for inclusion in CODIS would instead receive a 10% bonus. The bill is now with the Senate Committee on the Judiciary.
Weighing the Constitutionality of Arrestee Collection. But is the practice of compulsory arrestee DNA collection constitutional? To date, most challenges to DNA collection have involved convicts, not arrestees. The few cases dealing with arrestees have not reached consistent results—the federal law has been both upheld and struck down, and state courts in Minnesota and Virginia have also reached opposite results.3 A brief look at the methodology accepted by four courts illustrates how these disparate results occur.
In these four cases, the courts employed a balancing test that weighs the government’s interests in collecting DNA from arrestees against the privacy interests of those arrestees. The different outcomes can be attributed to the weight that the courts give the individual factors. The courts that have upheld arrestee DNA collection have generally adhered to the position that DNA collection, at least in this context, is akin to the accepted practice of taking fingerprints.4 Because the government’s interests (e.g., ensuring that law enforcement has properly identified the arrestee, determining whether there are outstanding warrants for the arrestee and collecting evidence to facilitate re-capture in the event that the arrestee should escape or flee) are sufficient to justify fingerprinting the arrestee, these courts believe that DNA collection is similarly justified.
By contrast, courts that have struck down arrestee DNA collection emphasize the privacy interests of the arrestee. For these courts, cases permitting DNA collection from convicts are not persuasive because arrestees, unlike convicts, have not been through a judicial process and do not have diminished expectations of privacy.5 Indeed, under the Katie’s Law bill, for a state law to qualify for the federal incentives, it would be required to allow acquitted individuals to have their profiles removed from CODIS. Minnesota’s statute contained such a provision, which the Minnesota Court of Appeals addressed in striking down the law. The court reasoned that, by including the provision, the legislature signaled that the privacy rights of an individual who has not been convicted outweigh the government’s interests. This is a curious example of a court deriving a legislature’s policy position from the very statute that it finds to be in violation of that policy. In any event, under this line of analysis, if an arrestee has not suffered a diminished expectation of privacy, his privacy interests outweigh the government’s law enforcement interests.
A Direct Challenge to Katie’s Law. Each case described above has arisen in the context of an individual convicted of one offense based on DNA evidence obtained when the individual was arrested for a separate offense. Accordingly, it is the act of collecting the DNA sample upon arrest that serves as the critical point in the analysis. As such, the cases do not address the entry and retention of the DNA profile in CODIS.
In Haskell v. Brown, however, the ACLU has squarely addressed those issues in the context of its challenge to California’s version of Katie’s Law. This case, which is currently awaiting argument before the Ninth Circuit Court of Appeals, does not stem from a conviction achieved on the basis of DNA collected from an arrestee. Instead, the ACLU’s case challenges the very act of taking and retaining DNA samples in CODIS. In Haskell, the named plaintiffs were arrested and compelled to submit DNA samples for checks against CODIS. The searches did not result in any database hits. One of the plaintiffs was not charged with a crime. The ACLU has sought a declaratory judgment that the California version of Katie’s Law is unconstitutional, as well as preliminary injunction prohibiting California from collecting DNA samples from arrestees. The case has survived a motion to dismiss and obtained class certification. The District Court for the Northern District of California, however, denied the ACLU’s motion for a preliminary injunction, and the ACLU has appealed that denial to the Ninth Circuit.
As part of Ninth Circuit’s decision on the preliminary injunction, it will probably evaluate the likelihood of the ACLU succeeding on the merits of its claim for declaratory relief. Accordingly, while the panel’s decision likely will not dispose of the ACLU’s claims, the reasoning behind that decision should serve as a useful indicator of how a circuit court of appeals views the constitutionality of the procedures included in Katie’s Law. Further, because the case does not arise as a challenge to a criminal conviction, the court will be able to evaluate the legal arguments without the possibility of a conviction being overturned. In the coming months, we’ll follow this case and the legislative progress of the federal version of Katie’s Law, as well as providing a more in-depth look at the court cases that will serve as a backdrop to the national debate regarding arrestee DNA collection.
1 The bill passed under a suspension of the rules, meaning that it was subject to severely limited debate, but required a 2/3 majority to pass. After 25 minutes of debate, the measure passed the house by a vote of 357 to 32.
2 The incentives are based on the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) that states receive. For reference, in 2009, California received about $135 million in Byrne JAG grants; New York received $67 million. A complete state-by-state list is available here (pdf).
3 Minnesota and Virginia have each reviewed their state laws: Minnesota found its law unconstitutional, while the Court of Appeals of Virginia upheld its law. Meanwhile, the Eastern District of Pennsylvania has found that the federal law is unconstitutional, while the Eastern District of California has upheld that same statute.
4 The Supreme Court of Virginia has stated: “A DNA sample of the accused taken upon arrest, while more revealing, is no different in character than acquiring fingerprints upon arrest.” Anderson v. Commonwealth, 650 S.E.2d 702, 705 (Va. 2007).
5 In response to the state relying on cases upholding DNA collection from convicts, the Court of Appeals of Minnesota has noted that “the reduced expectation of privacy that was present in the cases the state cites is not present here.” In re C.T.L., 722 N.W.2d 484, 491 (Ct. App. Minn. 2006).