Wednesday, April 18, 2012
Kevin Lapp and Joy Radice (New York University School of Law and New York University (NYU) - School of Law) have posted A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees
(North Carolina Law Review Addendum, Vol. 90, p. 157, 2012) on SSRN. Here is the abstract:
Federal law mandates the collection of a biological sample from anyone arrested by federal authorities or facing federal charges, regardless of the charge. The FBI then creates a DNA profile from the sample and enters that profile into the Combined DNA Index System (“CODIS”), a national database through which law enforcement matches individuals and crime scene DNA evidence.
Part I of the essay briefly reviews the federal statute that authorizes pre-conviction DNA extraction and the Fourth Amendment principles that underlie the current constitutional challenges to it. Part II identifies the various, and sometimes competing, rationales offered to justify the constitutionality of collecting DNA samples from individuals before they have been convicted of a crime. Part III then argues for a recalibration of the weight that courts currently place on the privacy interest in, and the government’s need for, DNA samples from individuals who are presumed innocent.
Our analysis suggests that the proper assessment of the totality of the circumstances would reduce the weight accorded to the government need for a DNA sample in the period between arrest and conviction and increase the weight of the privacy interest in one’s DNA. This recalibrated balancing would likely produce different outcomes for pre-conviction DNA collection than those issued so far. At the least, pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause. This would assure the legitimacy of the governmental interest in the individual and protect against abuse. To further protect the privacy interests of those subject to mandatory DNA extraction, provisions must be made for the destruction of the DNA sample (and the extensive genetic coding contained within it) after analysis is complete.
The essay concludes by identifying four issues yet to be addressed regarding pre-conviction DNA extraction. The holdings of the current cases leave open questions about whether the federal government’s interest in pre-conviction DNA extraction can trump the Fourth Amendment in the absence of a judicial or grand jury finding of probable cause, or when the arrestee is not detained or is charged with only a misdemeanor. Such cases quickly strain the current rationales and cast serious doubt on the constitutionality of the broadly worded statute.