Diminished returns: the exorbitance of collecting DNA from all arrestees.

• Author: Jordi, Carlos

INTRODUCTION

In the film Top Gun, Maverick was a trained fighter pilot who was allowed to fly incredibly powerful planes despite his inability to consider the high probability of the potentially disastrous effects of his impetuous behavior. (1) Maverick consistently engaged in a stream of irrational decisions but somehow always ended up a hero. (2) In one of the scenes from the movie, Maverick flew out to help a fellow fighter pilot despite having a dangerously low tank of fuel and having received strict orders to fly back to base. (3) An empty tank of fuel would have destroyed the expensive plane by forcing an emergency landing into the ocean. (4) The huge risk was justified when the heroic gesture allowed both pilots to safely return to the base. (5) Upon arrival, Maverick was called into his superior's office and was strongly chastised for acting foolishly and continuing to fly despite the huge risk involved. (6) The superior said, "[w]hat you should have done was land the plane!" (7) He continued, "You don't own that plane, the taxpayers do! Son, your ego is writing checks your body can't cash." (8)

Like Maverick, law enforcement officials are incredibly empowered by technological advances. (9) DNA forensics allow law enforcement to have a forceful impact on criminals by effectively determining whether a person has ever been involved in any previously unsolved crime with the simple click of a mouse. (10) For example, a person arrested and charged with rape may have a criminal DNA profile created as a result of committing that offense. (11) If that genetic profile matches DNA found at the scene of an unsolved homicide, the DNA match alone can serve as sufficient justification to charge that person with homicide. (12) DNA forensics is a great technology that optimizes the efficiency in which law enforcement can catch criminals. (13) However, the future expansion of DNA databases is uncertain and heavily debated. (14)

In Maryland v. King, (15) the Supreme Court upheld a statute allowing the collection of DNA from arrestees who are charged with serious crimes. (16) In the dissenting opinion, Justice Scalia warned that the majority's ruling might be too expansive. (17) The logic used by the Supreme Court may allow states to collect the DNA of all arrestees, regardless of the seriousness of the charge. (18)

This comment will examine the effects of a criminal justice system where DNA is collected from everyone who is arrested, regardless of the seriousness of the charge. (19) Part I. A will begin with an analysis of King to provide an understanding of how the Supreme Court decision may permit states to collect DNA from all arrestees. (20) DNA is used in the criminal justice system because of its ability to effectively identify people. (21) Part I.B discusses DNA science and provides a cursory understanding of how information is gathered from an individual's genetic code. (22) Part I.C displays how law enforcement uses DNA for criminal investigation. (23) Part I.D proves the current use of DNA database searches gives law enforcement pervasive power. (24)

If DNA is collected from every arrestee, knowledge of its use, certainty, and effectiveness would become widely recognized. (25) If crime is a rational choice, this knowledge could potentially become a factor in the decision to commit crime. (26) Part II examines whether the certainty and effectiveness of DNA forensics could deter crime. (27) However, social forces may affect an individual's capacity to weigh the positive and negative consequences of committing a crime. (28) Like Maverick, potential criminals may engage in behavior despite the monumental risks of suffering negative consequences. (29) Unlike Maverick, criminals are far more likely to suffer these negative consequences because DNA forensics is a very effective tool. (30) Part III analyzes how the collection of DNA from all arrestees may not deter crime and may thus provide only a small benefit when compared to the substantial costs that will be incurred by expansive collection. (31)

In Top Gun, Maverick was told to consider the effect his behavior would have on taxpayers. (32) This unlikely source of wisdom prompts Part IV which advises states not to adopt legislation that would allow DNA collection from all arrestees. (33) Additionally, the Federal Government should use the power within its means to entice states to regulate DNA collection only to serious offenders. (34) This regulation is a compromise because it allows law enforcement to use their powerful resources while tailoring its use to ensure resources are spent wisely. (35) The regulation of DNA databases is important because, unlike heroic characters from action movies, law enforcement will cost the taxpayer substantial money in the imprudent pursuit of their benevolent actions. (36)

1. BACKGROUND

   1. THE SUPREME COURT ON THE CONSTITUTIONALITY OF DNA FORENSICS

      In Maryland v. King, (37) the Supreme Court held that law enforcement's use of inner mouth swabs to collect DNA upon arrest is within the confines of the Fourth Amendment. (38) Alonzo King was arrested in 2009 on assault charges "for menacing a group of people with a shotgun." (39) In accordance with Maryland statutory law, (40) which allows the collection of an arrestee's DNA if the arrestee is charged with a violent crime, an inner mouth swab was used during the arrest to collect King's DNA. (41) The DNA was stored in a state database and forwarded to the Federal Bureau of Investigation's ("FBI") DNA database, Combined DNA Index System ("CODIS"). (42) The FBI compared King's DNA to the other profiles found in CODIS. (43) A genetic match was found with the profile of the suspected perpetrator of an unsolved rape case that occurred in 2003. (44) King was charged with rape and the DNA match was the sole evidence used to support the indictment. (45) The defense moved to suppress the DNA match by arguing that the Maryland statute (46) violated the Fourth Amendment. (47)

      In determining whether the Maryland statute comports with the Fourth Amendment, the Supreme Court balanced the governmental interest in using DNA collection against the individual privacy intrusion posed by the collection. (48) The Court found that governmental interest in using DNA during the arrest procedure is significant because the technology allows accurate identification, which promotes safety when determining the pretrial release of arrestees charged with serious crimes. (49) In contrast, the Court found that the individual privacy intrusion posed by the DNA swab is minimal because of the following: arrestees have a diminished expectation of privacy; the inner mouth swab presents only a minimal physical intrusion into the body; and the DNA collected does not divulge personal genetic information. (50) The Supreme Court upheld the Maryland Statute and ruled "that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure." (51) Although the decision only specifically pertains to DNA collection of arrestees that are charged with serious offenses, the dissenters argued that the logic used in the decision may result in allowing states to collect DNA from non-serious arrestees as well. (52)

      Justice Scalia wrote the dissenting opinion in King where he strongly disagreed with the majority, and was joined by three other justices. (53) The dissent argued that DNA collection upon arrest is not a significant governmental interest because it is not an efficient means for the identification of arrestees. (54) Fingerprints already give reliable identification results that can be rendered in a fraction of the time required by DNA analysis. (55) Additionally, the Maryland statute does not even allow DNA to be processed until after arraignment and thus cannot be used for pretrial release purposes. (56)

      Furthermore, the logic where DNA is considered an efficient means of identification is problematic because it can apply equally to serious and non-serious offenses. (57) "If one believes that DNA will 'identify' someone arrested for assault, he must believe that it will 'identify' someone arrested for a traffic offense." (58) Thus, the decision sets a precedent where future state legislation may allow DNA collection of non-serious arrestees. (59) Justice Scalia stated that the majority's logic will support an over-inclusive DNA database and thus impinge on the liberties granted by the Constitution because the real function of the DNA tests is to run suspicionless searches on arrestees, which are unjustified absent any special need or probable cause. (60)

      Maryland is not the only state whose legislature allows law enforcement to collect DNA upon arrest. (61) Before King, the constitutionality of the use of DNA in the arrest procedure was debated, (62) causing uncertainty among courts. (63) Police departments established an infrastructure that facilitated the collection of DNA despite the constitutional ambiguity. (64) King affirmed police efforts and explicitly approved DNA collection as a part of the arrest process. (65) DNA databases will continue to expand as a result of the King decision. (66) Furthermore, King may potentially allow states to collect DNA from all arrestee's, regardless of the severity of the charged crime. (67)

   2. THE SCIENCE OF DNA

      Deoxyribonucleic acid, or DNA, is a molecule that houses unique information about an organism. (68) This molecule is made up of chemicals called nucleotides. (69) Each nucleotide contains a sugar, phosphate, and a base. (70) The sugar and phosphate creates a backbone, which forms a long line. (71) Nucleotide bases are attached to this long line at a perpendicular angle. (72) Human DNA is double stranded. (73) This means that human DNA consists of two parallel sugar-phosphate lines, each with their own respective bases attached, that twist. (74) As the parallel lines twist, the bases line up in pairs. (75)

      The...