A Bridge Too Far: the Upcoming Mandatory Dna Sampling of Arrestees
| Publication year | 2013 |
| Pages | 18 |
Winter, 2013
By David Rangaviz, Esq. & Eric Morgan
This term, the Vermont Supreme Court will consider the constitutionality of Vermont's new state law allowing the taking of DNA samples from people charged, but not yet convicted, of felonies.[1] The case represents the state's consolidated appeal from Rutland, Addison, Orleans, Windsor, and Chittenden County superior court decisions, all striking down the statute as unconstitutional.[2]
This article examines the genesis and evolution of mandatory DNA sampling at both the federal level and in the state of Vermont, analyzing, in particular, the most recent amendment to 20 V.S.A. § 1933(a) (2). The amended statute, unlike the previous version, requires all individuals who are merely charged with a felony to provide a DNA sample to the government. After a thorough review of the history of DNA sampling in Vermont, this article argues that the sampling regime created by the amended statute sanctions illegal searches as a matter of state constitutional law.
DNA Sampling at the National Level
In 1994, Congress authorized the Federal Bureau of Investigation to create and preserve a comprehensive index of DNA samples from convicted criminals, crime scenes, and unidentified human remains.[3] This authorization followed from new developments in forensic technology and the pervasive use of DNA as evidence in criminal proceedings throughout the country.[4] Congress later codified the DNA Analysis Backlog Elimination Act of 2000, which broadly required that all defendants convicted of particular enumerated crimes submit their DNA profile into computer databases.[5] As originally enacted, the statute required DNA sampling of those convicted of crimes of a violent or sexual nature.[6]In the USA PATRIOT Act, Congress expanded the list to include crimes involving terrorism.[7]The list of offenses was further revised in 2004; since that time, "[a]ny felony" conviction at the federal level has required the taking of a DNA sample.[8] Today, federal agencies, like those in Vermont, are authorized to collect DNA from arrestees, [9]and the failure of an arrestee to cooperate in the taking of a DNA sample is a distinct federal crime.[10]Once extracted, the DNA is rendered into a profile and included in a DNA database. These databases—the Combined DNA Index System (CODIS) and the National DNA Index System (NDIS)— store DNA profiles submitted by national, state, and local crime laboratories.[11]
All fifty states have enacted legislation that allows law enforcement to obtain DNA samples from offenders.[12] The details of each state statute, however, vary widely; many, like Vermont, require those charged with a felony, as opposed to convicts, to submit data into the system.[13] At the time of the publication of this article, the NDIS contains over 9, 930, 700 offender profiles and has aided law enforcement in more than 182, 800 investigations.[14] Vermont alone has contributed over 14, 514 offender profiles to NDIS and the database has aided law enforcement in 146 cases.[15]
But critics dispute their effectiveness.[16] In many states, large backlogs of samples wait to be uploaded due to high processing costs.[17] These backlogs derive from the breadth of many state statutes, as twenty-eight states, including Vermont, allow DNA collection from arrestees.[18] In some states approximately two-thirds of all individuals charged with a felony ultimately get convicted, calling into question the need for collecting and cataloguing DNA from the remaining one-third of arrestees who are never convicted.[19]
These critics also argue that any aid to law enforcement comes at too high a cost.[20] The ever-expanding breadth of the databases raises significant privacy and civil liberties concerns.[21] As a warrantless search, the mandatory collection of DNA defies constitutional protection. The suggestion of taking profiles from newborn children and inserting them into a universal database conjures up images of a Brave New World society.[22]
Vermont's DNA Sampling Statute
Vermont first enacted a DNA sampling statute in 1998.[23] In its original form, the statute allowed DNA sampling only for: (1) individuals convicted of certain designated "violent crimes"[24]; (2) individuals convicted of attempts to commit a designated "violent crime"[25]; and (3) individuals required to give DNA as part of their plea agreement.[26]The implementation of this statute was challenged at the trial court level, but never appealed.[27]
In 2005, the Legislature amended the statute to include mandatory sampling of all convicted felons and individuals convicted of attempted felonies, regardless of the "violent" nature of their crime.[28]Ten defendants challenged the implementation of this statute on grounds that it contravened both the Fourth Amendment of the United States Constitution and its state counterpart. Chapter I, Article 11 of the Vermont Constitution.[29]The change in the law specifically required these defendants, as felons convicted of non-violent crimes, to submit their DNA into the database—the previous version of the statute would not have permitted taking of their DNA samples.[30] Ultimately, the Vermont Supreme Court found this amendment constitutional by a vote of three justices still on that Court today—Chief Justice Reiber, and Justices Dooley and Burgess.[31]
The Initial Challenge: State v. Martin
The Vermont Supreme Court heard a consolidated appeal regarding the constitutionality of the 2005 amendment in State v. Martin.[32] The Court began its analysis by noting that, despite obvious similarities between the state and federal constitutional provisions concerning unreasonable searches and seizures. Article 11 "provides free standing protection that in many circumstances exceed[s] the protection available from its federal counterpart."[33]
In recognition of the warrantless and suspicionless nature of the searches in question, the Court went on to apply a special needs analysis to the state's DNA sampling system. Of course, in general, both Article 11 and the Fourth Amendment require the government to obtain a warrant and have individualized suspicion prior to conducting a search or seizure.[34] The Court will not deviate from these constitutional mandates unless there exists some "exceptional circumstance! ] in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."[35] Once a special need exists, the court employs a balancing test, weighing the public need against individual privacy interests.[36]
The state argued that its amended statute served four distinct special needs: "(1) deterrence of all criminal conduct, (2) accurate identification of perpetrators, (3) exclusion of innocent suspects, and (4) assistance in the identification of missing persons."[37] Defendants countered by reference to the first sentence of the new law— "[i]t is the policy of this state to assist federal, state and local criminal justice and law enforcement agencies in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of violent crimes"—which, in their view, demonstrated that the primary purpose of the statute was merely "normal law enforcement" to which probable cause and warrant requirements should undoubtedly apply.[38] In a closely divided three to two decision, the Court concluded that the state had proffered a valid special need, and, upon application of the balancing test, upheld the DNA sampling system as constitutional.[39]
As to the existence of law enforcement "special needs, " the Court wholly embraced the rationale provided by the state and its four needs delineated above. Citing a litany of cases from the Supreme Court and the Second Circuit, the Court opted for a "more nuanced approach" to such questions.[40] Under this approach, using "DNA sampling and analysis to assist in identifying persons at future crime scenes is a special need beyond normal law enforcement."[41] Service of this "long-range special need" falls outside of the ordinary needs of law enforcement, and thus falls within the exception.[42] Further, the statute would advance the goal of deterring criminal activity because, according to the Court, it is "plain that at least some deterrent effect will accrue if felons know that their DNA has been sampled and indexed and might someday be detected at a crime scene if they reoffend."[43] In other words, felons will decline to commit new crimes when they know their DNA is on file.
Having found the existence of "special needs" supporting the DNA sampling process, the Court turned to the balancing of these needs against the privacy interests of individuals subject to search. Any concern over the intrusion of privacy from the initial sampling was, according to the Court, mitigated by the fact that the law mandated that the least intrusive available means be used to take the sample, typically a buccal swab.[44] On this basis, the Court's analysis "assume[d]" that buccal swabs would be the preferred method of taking samples.[45]
In response, the defendants maintained that the state encroaches on protected privacy interests not only during the initial taking of the DNA, but also upon the subsequent searches once the sample is plugged into the database.[46] According to the defendants, the genetic profile yielded by this analysis results in a far greater intrusion than the initial swab. The defendants asserted that their interests in "keeping private the 'personal genetic traits' revealed by DNA analysis" greatly outweighed the state's interests.[47]
The Court rejected this argument for two primary reasons. First, the Court found that all of the alleged information stored in the DNA reveals very little about...
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