The Constitutionality of Expanded DNA Collection

DNA databases are now a firmly established part of the criminal justice system. In all fifty states, police collect DNA from individuals upon conviction of certain offenses.  Many states have gone a step further, collecting DNA pre-conviction from those arrested for felonies — a practice sanctioned by the Supreme Court in Maryland v. King.

 In recent years, however, the number of individuals who have found themselves in DNA databases has grown by leaps and bounds. Some jurisdictions now authorize police to collect DNA from those arrested for relatively minor offenses.  Agencies are creating their own databases and filling them with DNA collected from individuals with their supposed consent.  Or, if an individual does not consent, police collect their DNA from discarded items such as straws or coffee cups.  And some agencies are analyzing DNA that was collected for a variety of non-law enforcement purposes, such as the screening of newborns for genetic diseases.

These developments reflect a broader shift in how DNA collection operates in practice. For years, proponents of universal DNA databases have argued that collecting DNA from everyone would help solve and deter crime. Although explicit proposals for universal databases have faced significant political opposition, a piecemeal approach has quietly taken hold instead. DNA is increasingly collected from expanding subsets of the population. The result is a system that increasingly resembles a universal database, but one built without the public debate, transparency, and democratic accountability such a system would demand.

To be sure, DNA collection can provide substantial public safety benefits, and is justified in many circumstances. But if the expansion of DNA collection is to continue, legislatures must determine which practices are acceptable and establish meaningful guardrails around their use. Many of these broader collection practices have emerged with little democratic oversight and few clear rules governing how DNA is collected, stored, analyzed, or shared. In some cases, there is reason to question whether these programs should exist at all.

This report details the expansion of DNA collection practices and considers their constitutional risks.