Looking for the Next Maryland v. King

By Michelle Meyer 

In my last post on Maryland v. King, I suggested that both proponents and opponents of King should find the philosophical case for a universal DNA database stronger than they might otherwise have thought. Obviously, moving in that direction — or even including mere suspects in a database — would raise legal questions that merit (and, one hopes, receive) further consideration by the Supreme Court. But how likely is it that the Court will have another opportunity to consider the constitutionality of a statute that continues to draw the line at arrestees?

The Supreme Court’s decision in King was necessarily limited to the fact pattern presented by Maryland’s particular statute authorizing the collection of DNA from arrestees. For instance, the Court repeatedly noted that the Maryland statute at issue limited DNA collection from arrestees to those who had been “charged” (not, in fact, merely arrested) with “serious crimes,” defined as crimes of violence or burglary, or attempts to commit these crimes. (Although Justice Scalia expressed skepticism that, under the Court’s analysis, it would or could find in any subsequent case a limiting principle preventing the collection of DNA from, say, those arrested for traffic violations, it is of course possible that the Court could find such a distinction.) The Court also noted that in Maryland, samples may not be processed or added to the database until after arraignment, when a judicial officer “ensures that there is probable cause to detain the arrestee.” The presence of probable cause, and the arrestee’s corresponding reduced expectation of privacy, were “fundamental” to the Court’s decision to uphold the collection of DNA from “arrestees.” The Court also noted that samples must be expunged if the arrestee is not convicted. Finally, the Maryland statute strictly limits use of the DNA database to solving cold cases and identifying remains and missing persons; use of the database for other purposes (research, to test for paternity, to analyze health or other traits) is criminalized. The Court explicitly said that a database that was not so limited would raise additional privacy concerns that would require a new analysis.

As usual, it’s more likely that the Court will have another opportunity to examine the constitutionality of DNA collection from arrestees if a circuit split arises regarding one or more of these or other practices. And that, in turn, depends, on how widely states and the federal government vary in their authorizing statutes. An Urban Institute report from May 2013 suggests that variation is, in fact, widespread on these potentially constitutionally relevant factors:

Seriousness of offense

Of the 28 arrestee DNA states, 13 collect DNA from those arrested or charged with any felony; 14 (like MD) collect only from a subset of felonies, typically involving violence, sexual assault, or property crimes; 7 collect from anyone arrested or charged with select misdemeanors; 1 (OK) collects from “any alien unlawfully present under federal immigration law”; and the federal government accepts profiles of any arrestee and any non-US citizen detained by the US government. In addition, 2 states collect DNA immediately upon arrest only if the arrestee has been previously convicted of a felony (CT) or other qualifying crime (TX).

Timing of collection and/or analyses of sample

Seven states require an arraignment, indictment, or judicial determination of probable cause prior to sample collection, while 21 permit collection immediately upon arrest. In 18 of those 21 states, the sample may also be analyzed immediately, while in the remaining 3 states, including Maryland (plus the 7 states that require some funding of probably cause before even collecting the sample), the lab must hold the sample and not analyze it until the arrestee goes before a judge.

Expungement

In 18 states, an arrestee who is not convicted must initiate expungement process; in 7, expungement is “automatic” under certain conditions; in 2, responsibility for expungement is shared between the state and the individual. “Most states do not require that arrestees be informed of expungement procedures, do not specify a timeline under which a valid expungement request must be processed, and do not address whether hits to profiles after an expungement has been ordered can be used in a criminal investigation.”

Age of arrestee

Eight states authorize collection from juveniles pre-adjudication; 8 prohibit it; and the remaining 12, by authorizing collection of DNA from “any person,” implicitly allow it.

Uses of the database

Unfortunately, so far as I can see, the Urban Institute’s report did not collect data on which uses of the database various statutes permit and forbid, or on the presence and nature of penalties for misuse. When we collected data on state DNA collection statutes ten years ago, we found that of the 50 states with such statutes (not limited to arrestees), 37 states permitted the conduct of research on the biospecimens from which DNA offender databases are derived. At that time, only three states had expanded their databases to arrestees (Texas, Louisiana, and Virginia); of those, Texas and Louisiana permitted research on DNA samples.

UPDATE 6/12/13: Similarly, I’d add that although offenders’ relatives’ case is uncertain, at best, that their Fourth Amendment rights are violated when the state conducts low-stringency searches of a database, as the Court noted, Maryland’s statute expressly prohibits such searches; other statutes, of course, do not, and they would present a different fact pattern, if not a different outcome.

It would appear that several statutes are vulnerable on one or more of the above criteria and, hence, that we haven’t heard the last from state and lower federal courts — and, with so much variation among the states presenting a ripe opportunity for a circuit split, perhaps even from the Supreme Court — about the constitutionality of collecting DNA from arrestees.

[Cross-posted at The Faculty Lounge]

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