A "lengthy, uncertain, and expensive process": a comparison of types of expungement from DNA databases of arrestees.

Author:Werse, Valerie
 
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  1. INTRODUCTION II. HISTORY & LEGALITY OF DNA COLLECTION UPON ARREST A. Arguments for and Against Collection upon Arrest B. Fourth Amendment ChallengesC III. TYPES OF EXPUNGEMENT PROCESSES IN VARIOUS STATES A. Expungement Through Application B. Automatic Expungement IV. ISSUES A. Indefinite Retention B. Unable to Expunge from Certain Databases C. Familial DNA Searching D. How to Know to Expunge V. CONCLUSION I. INTRODUCTION

    Currently every state in the United States, as well as the Federal Bureau of Investigation, collects DNA data from persons convicted of enumerated crimes. (1) The success of DNA databases in helping to convict and prosecute the guilty and exonerate the innocent has rendered the collection of DNA among those convicted of crimes uncontroversial. (2) Building on that success, many states have passed, or are considering, laws that will collect DNA from arrestees before any conviction is obtained. (3) Currently, the total number of states that employ some version of this law is twenty-eight. (4) Proponents of DNA collection upon arrest believe the collection is beneficial to prevention of future crimes. (5) This attitude is expressed by the idea that if the arrestee has not actually committed a crime there is no reason for him or her to be hesitant about giving his or her DNA. (6) The benefits purportedly go beyond safety and include a fiscal aspect. A study shows that by expanding databases by including arrestees, Indiana can save nearly $50 million a year. (7)

    While there are undoubtedly positive aspects to the legislation, there is also a growing movement that opposes the legislation. A fear exists that arrests will be made under questionable or illegal circumstances. (8) This would allow police to put an individual's DNA in the database when the individual has not been found guilty of the charges related to what could be a false arrest. (9) Additionally, it seems that there is a correlation between the disproportionate number of arrests that do not end in conviction and arrests of minorities. (10) There also exists concern in regards to privacy when using the process of familial DNA matching to catch criminals. (11) Furthermore, opponents express wariness of individual privacy when it comes to keeping someone's genetic material in a database. (12)

    With concerns about privacy in the minds of the public, courts throughout the country have already considered whether or not DNA collection upon arrest violates the Fourth Amendment. (13) Despite courts overwhelmingly holding that DNA collection upon arrest is constitutional, there remains some concern about the process. (14)

    States with statutes that allow or require the collection of DNA upon arrest have provisions for expungement of the DNA information from the database in cases where the person is not convicted, or the charges are dropped. (15) Expungement processes differ from state to state, but generally fall into two categories: upon request or automatically. (16) Though every state currently enacting a law relating to arrestee DNA collection has an expungement process outlined, the process is often ambiguous and difficult for the average person to navigate.

    The United Kingdom has been practicing collection of DNA upon arrest since 2004. (17) Recently, the profiles of those considered "innocent" (those who were never charged nor convicted) were ordered to be deleted from the database. (18) Instead, the government decided to make the profiles "anonymous" rather than delete them entirely. (19) Not deleting the profiles would be a direct contradiction of a decision by the European Court of Human Rights. (20)

    The European Court of Human Rights ruled in 2008, that the database violated Article Eight of the Human Rights Convention that allows respect for private and family life. (21) The Court of Human Rights was especially concerned because the DNA of arrestees who were found to be innocent had never been expunged, leaving innocent profiles forever in the database. (22) In an interview with the developer of DNA fingerprinting, Alec Jeffreys, Jeffreys expressed approval of the Court of Human Rights decision, noting that the database should not contain the data of innocent people as it is an invasion of privacy. (23) In response to the Court of Human Rights, the United Kingdom decided to eliminate profiles of unconvicted persons after a period of six years. (24)

    DNA collected upon arrest has only been utilized in the U.K. database for less than ten years and it has already been subject to a massive expungement attempt. If the United States does not adopt a consistent policy of expungement, it may find itself in a similar situation in the future. It would benefit both innocent citizens and law enforcement agencies to create a cohesive policy that expunges in a consistent and effective way.

    This note seeks to explore the process of DNA expungement for arrestees and determine what type of expungment process works best for balancing the rights of the individual with the public concern for safety. Part II of this note will analyze the history and legality of DNA collection upon arrest. Part III will explain the various processes used in different states to expunge DNA from their databases. Part IV will address some of the issues that arise from the retention of "innocent" DNA profiles within a database. The note will conclude by suggesting that the best policy to be employed by states and national agencies is one of automatic expungement for people who are never charged or convicted of a crime.

  2. HISTORY & LEGALITY OF DNA COLLECTION UPON ARREST

    1. ARGUMENTS FOR AND AGAINST COLLECTION UPON ARREST

      Both proponents and opponents of DNA collection upon arrest have vigorous arguments. Proponents tend to argue for the safety of the populous and for the ability to prevent serious crimes from occurring. (25) Opponents generally point to an inherent right of privacy that would be violated by DNA collection of the innocent. (26)

      In an effort to gamer support for the cause, proponents claim that DNA databases made upon arrest collections will allow law enforcement agencies to: stop violent crimes before they happen, identify and apprehend repeat offenders, reveal who is truly innocent, and lower costs associated with law enforcement. (27) All these objectives can be accomplished by a "simple cheek swab." (28)

      The benefit of crime prevention in exchange for the simple cheek swab is bolstered by frightening statistics presented by proponents. For example, the City of Chicago compiled statistics on crime prevention that could be accomplished by collecting DNA upon arrest. (29) By using a sample size of eight individuals, the study determined that if their DNA had been collected upon arrest it would have prevented 60 crimes, 53 of those being violent crimes. (30) A similar study conducted by the Denver District Attorney's Office, using a sample size of five individuals, concluded that 52 violent crimes could have been prevented if DNA had been collected upon arrest. (31)

      In addition to preventing crime, proponents advocate DNA collection upon arrest by pointing to its ability to save money. The assumption is that if DNA from arrest databases are made available to investigators, law enforcement agencies will have an easier time solving crimes and therefore require less man hours utilizing less misplaced costs to solve a crime. (32) If these resources were redirected, it would be easier to solve other crimes thereby accomplishing both money saving and crime prevention goals at the same time. (33) In Indiana it is estimated that it costs over $1.5 billion a year to run law enforcement agencies; one study states that nearly $50 million a year could be saved simply by expanding the known DNA database to include people who are arrested. (34)

      Despite the potential benefits and claims of crime prevention, opponents are not persuaded that DNA upon arrest lives up to its claims. Among the concerns is the possibility of arrests made without just cause, particularly minorities. (35) There exists a fear that if the databases are not constricted to just violent crime there will be a disproportionate amount of people of color who are included, mostly for drug crimes occurring in populated urban areas, creating a disproportionate database despite the facially racial neutrality of the law. (36) This becomes particularly relevant when talking about expungement as most of the expungement laws include some kind of waiting period and would likely require the help of a lawyer, something the urban poor are less likely to be able to access. (37)

      Perhaps one of the most articulated concerns is that inclusion of arrestees in the DNA database could give rise to "the potential for abuse of genetic information stored in databases." (38) Some people are uneasy due the apprehensions that the DNA in the database contains information related to a person's genetic makeup, health conditions, and information about one's family. (39) These concerns about genetic privacy have given rise to court cases that challenge the taking of DNA upon arrest on the basis of the Fourth Amendment.

    2. FOURTH AMENDMENT CHALLENGES

      The most common challenge to the collection of DNA upon arrest is under the Fourth Amendment. The Fourth Amendment states that there is:

      [A] right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized. (40) The country is currently split on how to interpret the privacy rights of individuals who are forced to give DNA samples upon arrest. In Anderson v. Commonwealth, the Supreme Court of Virginia found that while taking DNA upon arrest is more revealing than fingerprinting, it is still part of the routine booking process...

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