ACLU Letter to Congress Urging Opposition to an Amendment to H.R. 5057 Pertaining to the Collection of DNA Samples from Arrestees

Document Date: July 14, 2008

Vote No on H.R. 5057 the Debbie Smith Reauthorization Act of 2008 Unless the Schiff Amendment Forcing the Collection of DNA Samples from Arrestees – Not those Convicted – is Removed from H.R. 5057U.S. courts have generally ruled that DNA banking of convicted felons is permissible because a person who has been convicted of a crime has a “diminished expectation of privacy,” this cannot be said for those who have merely been arrested or charged with a crime.[2] At least one state court has recognized the importance of this distinction and declared arrestee testing unconstitutional.[3] While any arrest involves a degree of lost privacy, seizing DNA information without a showing of guilt goes well beyond the limitations the Constitution places on searches and seizures incident to an arrest.

The expansion of DNA databases to arrestees would also perpetuate racial biases that are systemic to our criminal justice system. The persistent and well-documented practice of discriminatory profiling in law enforcement[4] combined with expanded DNA collection would result in an increasingly skewed criminal database in which minorities are disproportionately overrepresented.

We are not alone in opposing the taking of DNA samples from arrestees. On July 2, Governor Mark Sanford, Republican of South Carolina, vetoed a bill that would have required all individuals arrested for a felony and certain other crimes to submit DNA samples and have their DNA profiles stored on a national database. In his veto letter to State Senate President Andre Bauer, Governor Sanford wrote –

“Lowering the threshold for obtaining DNA samples to felony arrest instead of conviction is particularly troubling when you consider that not even half of all felony arrests lead to felony convictions. For instance, in 2006, approximately 150,000 arrests were made, yet less than 40% of these arrests resulted in convictions. This means that this bill would require the State to take DNA samples of thousands of people who will never be convicted of the charges for which they are arrested. While the bill requires the destruction of the DNA sample in cases where someone is arrested and later exonerated, it does not address the uses of that evidence before guilt or innocence is determined. It is for this reason that the legislation appears to be about something much larger than simply criminal investigations.”[5]

DNA testing is an extraordinarily important tool that can and should be used for solving crime. But we must use this technology appropriately. The underlying Debbie Smith Reauthorization Act would move us closer to realizing the potential reduction in the rape kit backlogs that hinder us from bringing criminals to justice and closure to victims. However, the Schiff Amendment encourages states to divert their focus from resolving the rape kit backlogs, thereby undermining the goal of the original Debbie Smith Act and eroding the presumption of innocence. For these reasons, the ACLU strongly urges you to remove the Schiff Amendment from the Debbie Smith Reauthorization Act before it comes to the floor of the House of Representatives, so as not to jeopardize a much-needed piece of legislation.

Thank you for taking our concerns into consideration.


Caroline Fredrickson

Director, Washington Legislative Office

Timothy Sparapani

Senior Legislative Counsel


[1]U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States 2006, http://www.fbi.gov/ucr/cius2006/data/table_29.html

[2] See, e.g., Landry v. Att’y Gen., 709 N.E.2d 1085, 1092 (Mass. 1999); see also Hudson v. Palmer, 468 U.S. 517, 523 (1984); People v. Wealer, 636 N.E.2d 1129 (Ill. App. Ct.); Jones, supra not 6, at 308.

[3] In the Matter of the Welfare of C.T.L., 722 N.W.2d484 (Minn. App. 2006)

[4] For example, a U.S. Department of Justice survey conducted in 2002 found that black and Hispanic drivers were subjected to searches, arrests and use of force more often than white drivers. Bureau of Justice Statistics, Contacts between Police and the Public: Findings from the 2002 National Survey.

[5] July 2, 2008 letter from South Carolina Governor Mark Sanford to State Senate President Andre Bauer with respect to S. 429, R-429.