Overview

People are deterred more by the likelihood of getting caught than by the prospect of a harsher punishment if they are caught. According to a Department of Justice, National Institute of Justice study published in 2016, “The certainty of being caught is a vastly more powerful deterrent than the punishment.” And from Jennifer Doleac, former Executive Vice President of Criminal Justice at Arnold Ventures, “The research in this area has moved in the direction of finding bigger deterrent effects from increasing the probability of getting caught for a crime, rather than increasing the punishment”

This principle is particularly relevant to forensic DNA policy. Offender DNA databases increase the probability that offenders will be identified.

The federal framework for forensic DNA databases was established by the DNA Identification Act of 1994, which authorized the creation of the National DNA Index System (NDIS) and set standards for laboratory quality, privacy protections, the collection of DNA from convicted offenders, and penalties for violations, while requiring states to pass legislation establishing the scope of convicted offenders to be included in the database. Initially, federal law limited DNA collection to individuals convicted of felonies and did not permit the inclusion of DNA profiles from arrestees.

Over time, state law enforcement agencies saw the impact of including arrestee profiles in the DNA database and began lobbying their state legislatures to pass legislation allowing the collection of DNA from individuals arrested for certain crimes. The first state to pass legislation authorizing the collection of DNA samples from arrestees was Louisiana in 1997, authorizing DNA sample collection from “a person arrested for a felony sex offense or other specified offense on or after September 1, 1999.

Recognizing the crime-fighting value of including arrestee profiles in the NDIS, Congress passed the DNA Fingerprint Act of 2005. The Act authorizes federal agencies to collect DNA samples from individuals who are arrested, charged, or convicted, and from non-U.S. persons detained under the authority of the United States, and allows for the entry of arrestee profiles into the national DNA database. In 2013, Maryland v. King resolved the question of the constitutionality of arrestee testing, declaring that DNA taken upon arrest was NOT a violation of the 4th Amendment. However, even with the constitutional issue being resolved, as of today, only 31 states take DNA for some crimes upon arrest.