Who Needs Special Needs? On the Constitutionality of Collecting DNA and other Biometric Data from Arrestees

Abstract

For years, the collection of DNA samples from individuals arrested for criminal misconduct has been advocated by police officials and endorsed by politicians. Louisiana, Virginia, California, and South Dakota have adopted laws to add DNA profiles derived from these samples to their DNA databases. Texas provides for DNA to be taken after indictment but before conviction. Although the U.S. Department of Justice initially shied away from the issue, the DNA Fingerprint Act of 20055 authorizes the collection of DNA from individuals arrested for violations of certain federal criminal laws, and the inclusion in the national DNA database of all profiles from states that type DNA prior to conviction.But are these laws constitutional? In an article in a previous issue of this journal, and reprinted in this issue, Professor Tracey Maclin concludes that fidelity to precedent should lead the Supreme Court to strike down the Louisiana and Virginia laws as violations of the Fourth Amendment.