ACLU Letter to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security Regarding DNA Collection During Arrest

April 17, 2008
The Honorable Robert C. Scott
Chair
House Judiciary Committee
Subcommittee on Crime, Terrorism, and Homeland Security
Washington, D.C. 20515

The Honorable Louie Gohmert
Ranking Member
House Subcommittee on Crime, Terrorism, and Homeland Security
2138 Rayburn House Office Building
Washington, DC 20515

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Dear Chairman Scott and Ranking Member Gohmert,

Thank you for your attention to forensic DNA databanks at your April 10th hearing entitled, “Reauthorization and Improvement of DNA Initiatives of the Justice for All Act of 2004.”  As you know, DNA databanks have significant implications for our criminal justice system, as well as for civil liberties.

A question was raised during the hearing by Rep. Weiner as to whether DNA should be taken from all individuals who are arrested.  In particular, Rep. Weiner asked whether an individual who is arrested for jumping a turnstile should be required to provide a DNA sample, and whether the taking of DNA is analogous to current requirements to provide fingerprints.

The ACLU, an organization representing 600,000 members, is strongly opposed to the expansion of DNA databases to arrestees on grounds of privacy and constitutionality, as well as practicality. 

In America, people are presumed innocent until proven guilty. Housing a person’s DNA in a criminal database renders that person an automatic suspect for any future crime – without warrant, probable cause, or individualized suspicion.  While U.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 persons who have simply been arrested.[1]

The privacy stakes associated with collecting and warehousing law abiding individuals’ DNA are far greater than for fingerprints.  While fingerprints are two-dimensional representations of the physical attributes of our fingertips that can only be used for identification, DNA samples can provide insights into personal family relationships, disease predisposition, physical attributes, and ancestry.  Repeated claims that human behaviors such as aggression, substance addiction, criminal tendency, and sexual orientation can be explained by genetics render law enforcement databanks especially prone to abuse.  These concerns are driven by current law and laboratory practice, where the offender biological samples are retained along with the generated DNA profiles.

Law enforcement already has ample authority to collect a DNA sample from an arrested individual in those cases where a court-issued warrant supported by probable cause is obtained first.  DNA samples collected under these circumstances may be tested and compared with the biological evidence collected from the crime scene in question.  This warrant authority strikes an appropriate balance between meeting public safety needs while ensuring that a person is not subjected to lifelong genetic surveillance unless or until he or she is convicted of a crime.

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[2] combined with expanded DNA collection would result in an increasingly skewed criminal database in which minorities are overrepresented.

Privacy and racial justice issues aside, encouraging the states to expand their databases to arrestees is at best impractical and perhaps impossible.  As was well demonstrated throughout last week’s hearing, laboratories across the nation are facing extraordinary backlogs.  These backlogs, caused primarily by the heedless expansion of the state databases to ever more categories of individuals, have led to extensive delays in the processing and testing of rape kits and other crime scene evidence. 

Lengthy delays in testing DNA from crime scenes can have tragic outcomes.  For example, an emergency report issued last year by the California Commission on the Fair Administration of Justice, a bi-partisan panel of criminal justice experts and practitioners, documented enormous backlogs of approximately 160,000 untested DNA samples arising from the expansion of California’s databank to all felons.  In addition, the panel reported that “delays of six months or more have become the norm” in analyzing rape kits.  In one case, a rapist attacked two more victims, including a child, while his DNA sat on a shelf awaiting analysis.[3]

As you might recall from the hearing, the expert witnesses could not even provide a ballpark estimate for the amount of federal funding that would be required to eliminate the current backlog. As such, it would be fiscally irresponsible for Congress to promote in any way the collection and analysis of DNA from all 14 million individuals who are arrested every year in the United States.  Moreover, a massive expansion of this sort could undermine law enforcement practices by diverting resources from other important programs and rendering our already underfunded and understaffed crime laboratories vulnerable to quality assurance problems and increased error rates.

DNA testing is an extraordinarily important tool that can and should be used for solving crime.  But each time we expand a criminal DNA database to include more categories of people and more DNA samples, concerns for privacy, legality, practicality, and cost escalate while returns to law enforcement diminish.  Crossing the line from convicted offenders to arrestees or other innocent persons renders a database a tool for surveillance rather than one for investigating crime and should not be tolerated.

Sincerely,

                          

Caroline Fredrickson                                                     Director                                                                        
American Civil Liberties Union                                     
Washington Legislative Office                          

Jesselyn McCurdy
Legislative Counsel
American Civil Liberties Union
Washington Legislative Office         

Endnotes           

[1] 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 note 6, at 308.
[2] 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.
[3] California Commission on the Fair Administration of Justice, Emergency Report and Recommendations Regarding DNA Testing Backlogs, Feb. 20, 2007.

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