Prof. Lapp unpacks the Supreme Court’s recent decision on pre-conviction DNA collection

Associate Professor Kevin Lapp opines on the ramifications of the Supreme Court's opinion in Maryland v. King, deemed “the most important criminal procedure case that this Court has heard in decades” by Justice Alito.

The distinctive moment of criminal booking is no longer the taking of a suspect’s fingerprints. In the 21st century, the federal government and more than two dozen states have passed legislation requiring law enforcement to use the moment of arrest to collect something far more intrusive than a fingerprint: DNA samples. These states do so without a warrant, without any articulated suspicion that the seized DNA will lead to evidence of any criminality, and some do so without regard to whether the prosecutor’s office later decides to bring charges against the arrestee or whether the individual pleads guilty or is convicted.

In June 2013, the United States Supreme Court gave its first answer to the constitutionality of DNA collection after arrest but before conviction. In Maryland v. King, a case Justice Alito called at oral argument “the most important criminal procedure case that this Court has heard in decades,” the Court upheld the constitutionality of a Maryland statute mandating law enforcement to collect DNA samples from those charged with a crime of violence or burglary, or the attempt to commit such. Maryland define the slippery term “crime of violence” to include murder, rape, first-degree assault, kidnapping, arson, sexual assault, amongst other serious offenses.

What remains to be seen is what the decision means for the future. The Combined DNA Index System (CODIS), the FBI’s system for databasing the DNA profiles derived from convicted offenders, arrestees and crime scene evidence, already holds more than 13 million profiles, including more than 1.5 million arrestee profiles (with California accounting for more than 2 million of the total DNA profiles presently in the system). Following this decision, more states may pass laws mandating DNA collection following arrest. Implemented on a nationwide scale, DNA collection at arrest has a potentially wide reach. The Department of Justice estimates that law enforcement made more than 12 million arrests nationwide in 2011 (excluding traffic violations). Collecting DNA at booking will quickly lead to a massive government database of genetic material (that reflects the inequal enforcement of criminal law).

Does Maryland v. King settle the question of pre-conviction DNA collection? Principles of stare decisis necessarilylimit the holding to the facts of the case, and there are plenty that keep King from being a broad endorsement of DNA collection. Several important aspects of the Maryland DNA collection scheme mean that future cases may not necessarily come out the same. These limits include the Maryland act’s limitation to those charged (and not just arrested) with a serious crime; the fact that a seized DNA sample cannot be processed or placed in a database until the individual is arraigned and a judicial officer makes a determination of probable cause; the prohibition of using the DNA for any purpose other than identification; and that the law prohibits tests for familial matches.

As a result, the decision is not controlling on statutes that mandate pre-conviction DNA collection from those arrested for something beyond a crime of violence or burglary, such as any felony (as in California and 12 other states) or even on arrest for misdemeanors (like the federal scheme and seven states). Nor does the Supreme Court’s ruling cover statutes that have no similar requirement of a judicial finding of probable cause before the DNA sample may be profiled and databased, or those that permit familial matching (as does California’s). Finally, the decision does not necessarily endorse pre-conviction DNA collection from juveniles, which eight states explicitly authorize and another dozen implicitly allow.

A narrow reading would normally be expected, especially so because the Supreme Court has often cautioned about proceeding too quickly when dealing with new and rapidly changing technologies.

But there are reasons to believe that the Court did not mean for its decision to be interpreted narrowly, and is instead an unreserved endorsement of DNA collection by law enforcement. Despite several incantations of the “serious crimes only” aspect of the Maryland law and highlighting the requirement of judicial probable cause before a seized DNA sample can be processed and the results entered into a database, the majority ignores or forgets these important limitations in the rest of its opinion. For example, the majority claims that DNA allows officers to know the type of person they are dealing with and helps courts make a bail determination by indicating whether the person is linked to another offense, yet neither is possible under the Maryland scheme that limits DNA analysis and databasing until after arraignment.

In further support of DNA collection at arrest, the Court notes that people detained for minor offenses commonly turn out to be devious and dangerous criminals, citing Timothy McVeigh’s stop for driving without a license hours after the Oklahoma City bombing, and the speeding stop of two 9/11 terrorists two days before the hijacking of Flight 93. The problem here is neither stop would have triggered DNA collection under the Maryland statute. By their inclusion, though, the Court seems to endorse collecting DNA from those stopped by law enforcement for any reason, including traffic stops, on the off chance that they already did or are planning to commit in the future acts of terror.

Finally, there is no identifiable limiting principle to the holding. It certainly cannot be “serious crimes” or “crimes of violence”, because the justification for taking DNA from arrestees (identify them and solve unsolved crimes) applies just as well to anyone arrested or encountered by the police, or, for that matter, anyone present in the United States. Indeed, the bigger the database, the more effective the database at achieving its purported purposes. Given the expansion of fingerprinting—from convicts, to arrestees, to civil servants to anyone seeking a driver’s license—it will be no surprise if the next pre-conviction DNA collection case finds the “serious crimes” limitation to be of no moment.

This is not to say that DNA databasing is not effective. Without a doubt, it is, as it both makes it easier to catch the guilty and facilitates exonerating the innocent (though the upshot of the Court’s holding in Maryland v. King is that, because the constitutionality of DNA collection after conviction is undisputed, the only people who a pre-conviction DNA collection regime adds to the DNA database are those who are arrested and never convicted). Still, we must be careful with the lure of such an attractive tool as DNA collection and databasing. Several factors support a cautious approach with such a potentially invasive and expansivepractice as DNA collection at arrest, including the steady decoding of DNA itself by scientists and the government’s poor track record with regard to tantalizing sources of data.