Under some state laws, a state collects DNA samples from people who have been convicted of major crimes, such as rape and homicide. Prosecutors can also get a court order to take blood and DNA samples if they have probable cause to target an individual in an investigation. New York's police commissioner proposed in 1998 to collect DNA samples from everyone arrested in New York City.
Should Police Take DNA Samples?
Police should take DNA samples from all arrestees
Some support the extension of this ultrapowerful form of tracking to all arrestees on the grounds of better crime control. Proponents of such DNA sampling make the following arguments:
DNA sampling, done by collecting saliva, poses no danger to civil liberties because it is pretty much the same as taking fingerprints.
Taking samples of DNA from all arrestees would dramatically improve law enforcement's efficiency and effectiveness in solving crimes and in exonerating innocent persons. Thousands of people have been convicted because suspects can be searched out across space and time based on DNA evidence. Hundreds of innocent people have also been freed, often after years behind bars, sometimes just short of the death penalty.
Police should not take DNA samples from all arrestees
Civil libertarians see grave dangers in the mass DNA testing of all arrestees and put forth these arguments in support of their position.
Expanding the scope of DNA typing to include all arrestees rather than just felons would make it likely that such typing would eventually be broadened to include everyone. This argument is based on the premise that the insurance industry, corporate employers, politicians, and government bureaucrats will press for mass DNA typing for their own benefits or the good of society.
The analogical argument comparing fingerprints to DNA is flawed. Whereas fingerprints can't be used for any purpose other than identification, DNA samples can be misused in a variety of ways. The threat of genetic discrimination based on DNA banking is real. Genetic discrimination is the use of genetic information derived from tests to classify individuals on the basis of their genetic status and to discriminate against those at risk for future health problems. For example, insurance companies could use DNA data to identify those at risk for genetic disease and refuse coverage to at‐risk individuals.
Barry Scheck, a professor at Yeshiva University's Cardozo School of Law in Greenwich Village, heads the Innocence Project, which uses DNA evidence to try to clear wrongly convicted clients. Scheck, the DNA expert on O. J. Simpson's “dream team” of lawyers, argues that “using DNA data banks effectively does not require taking samples from all citizens, as some rightly fear, or even expanding the data bank beyond felony offenders.” According to Scheck, “We don't need to test more people; we need more labs testing more crime scenes.” In other words, the problem is that DNA laboratories in the United States are so underfunded they can't type enough cases. He says DNA labs are so backlogged it often takes ten months to get results in a case in which a suspect has already been apprehended and is awaiting trial.
The civil liberties costs (including the invasion of the genetic privacy of hundreds of thousands of citizens) of taking DNA samples from all arrestees would outweigh any social benefits to be derived from such a program.
Because DNA testing is very economically costly, it would not be cost‐effective to take samples from persons arrested for misdemeanors and other minor offenses.
Evaluating the expansion of DNA banking to include all arrestees
Harvard law professor Lawrence Tribe notes that the U.S. Supreme Court usually fails to protect constitutional rights when dealing with new technologies. Given the crime control orientation of the current Court, Tribe is doubtful that the Court will shield the right of privacy in cases involving DNA typing. Nevertheless, it remains to be seen whether DNA typing will be extended to all arrestees. Should mass police sampling of all arrestees be prohibited to protect the genetic privacy of all individuals? Should DNA sampling be conducted only for the purpose of identifying individual criminal suspects? Because police agencies, other government bureaucracies, and corporations have misused technological inventions in the past to overstep the boundaries of individual privacy, it would seem important for Americans to be vigilant in protecting their civil liberties when it comes to DNA typing.