States have been collecting DNA from convicted felons for over two decades, and it’s helped solve thousands of crimes. But we can do more. By passing laws to expand DNA databases, law enforcement officials can catch criminals sooner, prevent crimes, save more lives, and use DNA to its full potential.
Expanding DNA databases can help:
- Catch repeat offenders sooner
- Prevent future crimes
- Save lives
- Exonerate the innocent
- Reduce criminal justice costs
- Reduce bias in the criminal justice system
- Since 1974, more than 90 percent of all state prisoners have been repeat offenders
- 70% of America’s crime is committed by 6% of its criminals. ref: Bright Lines, Dark Deeds, Counting Convictions Under the Armed Career Criminal Act by James E. Hooper, Michigan Law Review
- One out of every six American women have been the victims of an attempted or completed rape. ref: RAINN (Rape and Incest National Network) Statistics
- To date, post-conviction DNA testing has led to the exoneration of more than 330 wrongfully convicted individuals in the United States, and many of these individuals were not fully exonerated until after a DNA match was made on the database to another offender.
The Fourth Amendment Discussion: Why Taking DNA upon Felony Arrest Does Not Violate the Fourth Amendment of the U.S. Constitution
Many states in the U.S. have begun to protect victims and the innocent, while more are quickly identifying dangerous perpetrators by requiring that DNA be taken when individuals are arrested for violent felonies. While often challenged on Constitutional grounds, courts throughout the country have overwhelmingly upheld these statutes. The court decisions and the rationale supporting those decisions have been clear that the processes, procedures and benefits of taking DNA from those arrested for violent felonies is as constitutionally sound as taking fingerprints from those same people.
Supreme Court Upholds “Katie’s Law”
On June 3, 2013, the US Supreme Court upheld “Katie’s Law” denying a challenge that laws to require DNA upon arrest were a violation of fourth Amendment rights. In calling the case, “perhaps the most important criminal procedure case this Court has heard in decades,” the justices stated that “DNA is like fingerprinting _and photographing, a legitimate police booking procedure that _is reasonable under the fourth Amendment”. Maryland v. King _No 12-207.
The Federal Appeals Court in the Third Circuit as recently as July 25th, 2011, found the Federal Arrestee statute to be constitutional. Significantly, the Court in United States v. Mitchell (Third Cir. July 25, 2011, No. 09-4718) ___ F.3d ___, 2011 WL 3086952, analyzed the issue using a “totality of the circumstances” test – the same test used by eight of the 11 Federal Circuits.
The Fourth Amendment
The Fourth Amendment to the U.S. Constitution protects individuals from those searches and seizures that are “unreasonable.” For years, the Courts, including the U.S. Supreme Court, have found that, when a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest. The rationale behind the decision is the fact that the identification of suspects is “relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes.” (Jones v. Murray, 962 F.2d 302, 306 (Fourth Cir. 1992); Johnson v. Commonwealth, 259 Va. 654, 672, 529 S.E.2d 769, 779 (2000).) This becomes particularly clear when we consider the universal nature of “booking” procedures followed for every suspect arrested for a felony, whether or not the proof of a particular suspect’s crime will involve fingerprint evidence.
Treating the taking of DNA samples at arrest just like fingerprinting at arrest has been widely accepted. In addition to the Fourth Circuit in the Jones case:
- The Second Circuit held “[t]he collection and maintenance of DNA information, while effected through relatively more intrusive procedures such as blood draws or buccal check swabs, in our view plays the same role as fingerprinting.” Nicholas v. Goord, 430 F.3d 652, 671 (Second Cir. 2005), cert. denied, ___ U.S. ___, 127 S.Ct. 384 (2006).
- The Third Circuit held “[t]he governmental justification for [DNA] identification relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods.” United States v. Sczubelek, 402 F.3d 175, 185-86 (Third Cir. 2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2930 (2006).
- The Ninth Circuit held “[t]hat the gathering of DNA information requires the drawing of blood rather than inking and rolling a person’s fingertips does not elevate the intrusion upon the plaintiffs’ Fourth Amendment interests to a level beyond minimal.” Rise v. State, 59 F.3d 1556, 1560 (Ninth Cir. 1995).
- The State of Maryland held “The purpose [of the DNA profile] is akin to that of a fingerprint. (State v. Raines, 857 A.2d 19, 33 (Md. 2004)
- New Jersey held, “We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person . . . . [T]hat intrusion is no more intrusive than the fingerprint procedure and the taking of one’s photograph that a person must already undergo as part of the normal arrest process.” State v. O’Hagen, 914 A.2d 267, 280 (N.J. 2007)
- Oregon held “Because using a swab to take a DNA sample from the mucous membrane of an arrestee’s cheek is akin to the fingerprinting of a person in custody, we conclude that the seizure of the defendant’s DNA did not constitute an unreasonable seizure under the constitution.” State v. Brown, 157 P.3d 301, 303 (Or. Ct. App. 2007)
- The Virginia State Supreme Court held “the taking of Anderson’s DNA sample upon arrest in Stafford County pursuant to Code § 19.2-310.2:1 is analogous to the taking of a suspect’s fingerprints upon arrest and was not an unlawful search under the Fourth Amendment.