Article by Kevin Lapp
Law enforcement craves data. From rap sheets to confidential informants to the CompStat revolution, law enforcement acquires whatever information it can to manage, solve, and deter criminal behavior. Technological and scientific advances in recent decades have enabled an unprecedented level of surveillance and permitted the storage and easy retrieval of enormous amounts of data. Among the many forms of data currently collected by law enforcement, perhaps none is more potentially powerful than DNA profiles. DNA databasing enables law enforcement to accurately and efficiently identify individuals and to match known DNA profiles to biological crime scene evidence. Dubbed by the United States Supreme Court as “one of the most significant scientific advancements of our era,” DNA databasing makes it possible to solve crimes quickly and confidently, including very old ones, and even to exonerate the wrongfully convicted. Not surprisingly, law enforcement, legislatures, and courts have spent the last two decades expanding the collection of DNA samples beyond the initial targets of adult violent and sex offenders to compile expansive databases of genetic profiles. Collection is accomplished primarily through contact with the criminal justice system. All states and the federal government compel DNA collection from anyone convicted of a felony. All but four states compel collection from those convicted of selected misdemeanors. But a conviction is not required to trigger DNA collection. The federal government and twenty-seven states collect DNA samples from individuals at arrest (whether the arrest leads to charges or not). Increasingly, law enforcement also obtains DNA samples based on consent, sometimes in exchange for dropping or reducing charges. According to the United States Department of Justice (DOJ), as of September 2014, the National DNA Index System (NDIS) contains over thirteen million offender and arrestee DNA profiles.
DNA collection is not limited to adults. The federal government and every state but Hawaii mandate DNA collection from juveniles convicted in criminal court. Twenty-nine states likewise mandate DNA collection from juveniles following a delinquency adjudication in juvenile court. Some of these states collect DNA from juveniles for misdemeanor delinquency adjudications. Utah, for example, compels collection from any juvenile fourteen or older adjudicated delinquent for any Class A misdemeanor, a category that includes criminal mischief and possession of more than one, but less than sixteen, ounces of marijuana. In nineteen states, neither a conviction nor an adjudication of delinquency is necessary to compel a juvenile to provide a DNA sample; a mere arrest will suffice. And, as with adults, law enforcement has sought genetic samples from juveniles via consent-based searches, including obtaining a juvenile’s consent to a cheek swab outside the presence and without the permission of the young person’s parent.
89 Tul. L. Rev. 435 (2014)