Ashley Eiler · June 2011
79 GEO. WASH. L. REV. 1201 (2011)
Under a federal statutory scheme, the fact that an arrestee is never formally charged or convicted of a crime has little impact on the analysis or continued use of her DNA profile; the federal government has no obligation to take affirmative steps to expunge a DNA profile from CODIS if an arrestee is not ultimately convicted. Instead, arrestees have to apply for expungement—a requirement designed to shift the burden from the government to the arrestee in order to strengthen CODIS’s crime-solving power.
Under the legislation proposed in this Note, an arrestee’s DNA sample would not be analyzed immediately upon collection for entry into CODIS. Instead, investigators would place the sample, unanalyzed, into a separate DNA databank where it would be stored until either (1) the arrestee is convicted, or (2) the arrestee consents to have her DNA included in CODIS. This legislative reform is preferable to the Supreme Court simply striking down the current statutory regime because it protects an arrestee’s Fourth Amendment rights while still allowing the federal government to pursue its compelling interest in improving the efficacy of CODIS.
Part I explores how DNA is used in law enforcement operations and summarizes the development and rapid expansion of DNA databases. Part I also provides an overview of the current statutory schemes in place for DNA collection at both the federal and state levels, focusing particularly on the DNA Fingerprint Act of 2005 and the accompanying U.S. Department of Justice (“DOJ”) regulations, which, together, authorize DNA collection from arrestees. Part II explains how DNA databasing procedures implicate Fourth Amendment rights and summarizes lower courts’ analyses of the constitutionality of DNA databasing statutes using two doctrinal approaches. Part II then concludes that the current federal all-arrestee statute does not comport with the Fourth Amendment under either of the doctrinal approaches used by the lower courts. Part III presents a legislative solution that cures the federal all-arrestee statute’s constitutional defects by protecting individual arrestees’ Fourth Amendment rights while also recognizing the federal government’s legitimate interest in expanding the CODIS database.
