There have been 302 total DNA
exonerations in the United States since the first one took place in 1989. Since 2000, there have been 289
post-conviction exonerations. DNA evidence is one area of criminal law that is
always in the news. Last week, on
January 29, 2013, a former Ohio police captain was released from prison after fifteen
years, when new DNA tests proved he was innocent of his wife’s 1997 murder.[1]
The Governor of New York recently
announced that he is expanding the state’s DNA database.[2]
DNA evidence is becoming one of
the most useful tools for criminal law, but at the same time has some controversy
around it. While there are
wonderful benefits to DNA testing and having a DNA database, there are serious
concerns with the collection practices of the government.
The federal government has an extremely broad
statute, known as the DNA Act, which allows for the warrantless collection of a
DNA sample from anyone arrested or convicted (including non-citizens).[3]
The DNA samples are added to the
FBI’s Combined DNA Index System (“CODIS”) and kept there indefinitely. The same statute also allows the federal
government to “use or authorize the use of such means as are reasonably
necessary to detain, restrain, and collect a DNA sample from an individual who
refuses to cooperate in the collection of the sample.”[4]
Generally, most interested parties
can accept the practice of collecting DNA from convicted offenders. However, there has been much debate, and
little resolution, over the collection of DNA from pre-convicted individuals.
Many argue that there are Fourth Amendment
violations by collecting an individuals DNA without a warrant and without
consent. The Fourth Amendment
provides that the government cannot perform a search or a seizure, without a
warrant.[5]
Opponents of across the board DNA
collection argue that the government’s practice of taking DNA samples from
arrestees without a warrant and without consent is a violation of an individual’s
Fourth Amendment rights. The
Supreme Court has affirmed many times that Fourth Amendment right to privacy attaches
to individuals not places. Surely a person has a right to privacy in their biological
material.
Courts nationwide have found that collecting
DNA samples qualifies as a search. While the Supreme Court has not
ruled on the issue yet, the 3rd Circuit, in Mitchell v. U.S., has ruled that it is not a Fourth
Amendment violation to take a DNA sample from a non-convicted person.[6]
Mitchell was arrested for
possession of cocaine with intent to distribute. After he was arrested, but not yet convicted, the Government
attempted to get a DNA sample from him. They cited the DNA Act as their authority to take a sample.
Mitchell claimed that it violated his Fourth Amendment right. Although the lower court agreed with
him, the Circuit Court held that “arrestees have a diminished expectation of
privacy in their identities, and DNA collection from arrestees serves important
law enforcement interests.” Based
on this reasoning they did not believe it violated his constitutional rights to
force him to provide a sample of his DNA against his will.
While it
may be true that there is a government interest in collecting data on arrested
and convicted individuals, is it true that this interest is more important than
the right a person has to their most precious possession, their identity? Does the government’s interest in
cataloguing biologic material trump your right to ownership over your body?
Bethany J. Peak
Blogger, Criminal Law Brief
Image by: Micahb37
[1] Jim Kavanagh, Police captain exonerated in wife's murder, freed
from Prison, http://www.cnn.com/2013/01/29/justice/ohio-police-captain-exonerated,
Jan. 30, 2013.
[2] Mr. Cuomo’s Plan on Wrongful Convictions, http://www.nytimes.com/2013/01/28/opinion/mr-cuomos-plan-on-wrongful-convictions.html?ref=crimeandcriminals, Jan. 27, 2013.
[4] 42 U.S.C.A. § 14135a (4)(a)
[5] U.S. Constitution, 4th Amendment, available at http://www.law.cornell.edu/constitution/fourth_amendment.
[6] The 3rd Circuit is the highest court in the nation to
rule on this issue so far. U.S. v. Mitchell, 652 F.3d 387, 390 (3d Cir.
2011). http://scholar.google.com/scholar_case?case=5305218544820005389&hl=en&as_sdt=2,9&as_vis=1
I certainly understand the concern about the right to ownership over your body. However, I also see the other side of the argument and how expanding the databases of DNA can certainly assist law enforcement with crimes of murder and rape...I suppose it depends how much of an intrusion one would feel is occurring when they swipe a cotton swab in one's mouth? Most processing units already take a picture and fingerprints when one is arrested as it is, and an argument could be made it is another form of identification for the individual arrested.
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