Let's Make the DNA Identification Database as Inclusive as Possible

Of course there can be no such benefit if the true perpetrator has not previously been arrested for or convicted of a qualifying offense, and is not included in the portion of population whose DNA has been sampled and typed, and whose DNA profiles have been entered in the database.

On page 3, since 4 states – and the federal government – also permit (or will permit in the future) DNA collection from arrestees, this fact should be added to the description of legislative expansion of DNA collections. Also, it would be helpful for the reader to reference that a description of DNA database statutes can be found at Axelrad S. , Survey of State DNA Database Statutes, <www.aslme.org>.

See Kaye D. H. and Smith M. E. , “DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage,” Wisconsin Law Review (2003): at 449–50.

The Fourth Amendment provides: “The 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 the persons or things to be seized.”

430 F.3d 652 (2d Cir. 2005).

379 F.3d 813, 818 (9th Cir.2004) (en banc), cert. denied, U.S., 125 S.Ct. 1638 (2005).

See Felony Defendants in Large Urban Counties, 2000 (Bureau of Justice Statistics, Washington, 2003), at 11.

See Smith and Kaye , supra note 3, at 437–440.

A proper description of this problem is beyond the scope of this essay, but the data and sources are collected, and the arguments fully elaborated in Kaye and Smith , supra note 3, at 452–459.

It is not inevitable that coverage will extend to everyone arrested, for any offense, as legislators could notice and recoil from the prospect that they, and their families would in time be included as criminals. Alternatively, police might be expected to exercise discretion in a way that avoids sampling DNA from persons who appear to them not to be criminals – people like themselves, or “like us.” But then, those whose DNA is taken at a traffic stop when the officer thinks it prudent to convert it to an arrest and to take a DNA sample are likely to resent it mightily, as they should.