Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at all convicted offenders or at all arrestees. It suggests that such coverage results in sampling DNA disproportionately from racial minorities, which exacerbates racial tensions and undermines the preventative and investigative value of the databases. It argues that a population-wide database with strict privacy protections may supply the better answer to the coverage question, and to the privacy concerns raised by any government program to take and analyze individuals' DNA.
Part I discusses two theories that might dictate which offenders should be included in these databases. The first theory holds that by virtue of a conviction, offenders forfeit the Fourth Amendment right to be free from unreasonable searches and seizures. This forfeiture-of-rights theory would confine the databases to convicted offenders, but it cannot be squared with settled constitutional principles. The second theory holds that because convicted offenders are more likely to re-offend than are other groups, they pose a special risk that justifies the incursion on their Fourth Amendment rights. Although this recidivism theory may seem more protective of individual liberties, it fails to constrict coverage to convicted offenders or even to arrestees.
Part II considers extensions of coverage to various groups of people who have not been convicted of crimes. It suggests that the Constitution may permit DNA to be collected from persons who have only been arrested, and even from certain groups of persons who have neither been convicted nor arrested.
Part III questions the desirability of limiting database coverage to convicted offenders, or to convicted offenders plus arrestees (or "suspects"). It notes that by restricting coverage to these groups, we are fast producing a racially distorted system in which, however lawfully the DNA samples are taken, they are taken disproportionately from members of racial minorities. We conclude that a population-wide database would be more effective and more fair than any system in which conviction or arrest is the threshold for database inclusion. We also indicate how such a system can be structured to protect personal privacy.
David H. Kaye and Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wis. L. Rev. 413 (2003).