Non-Conviction DNA Databases in the United States and England: Historical Differences, Current Convergences?
| Date | 01 October 2011 |
| Author | Liz Campbell |
| Published date | 01 October 2011 |
| DOI | 10.1350/ijep.2011.15.4.384 |
| Subject Matter | Article |
Non-conviction DNA
databases in the United
States and England:
historical differences,
current convergences?
By Liz Campbell*
University of Aberdeen
Abstract Collecting DNA from crime scenes and individuals and storing it in
databases is regarded increasingly as critical for criminal investigation and
prosecution. This article considers the development of non-conviction DNA
databases in the United States and England and Wales, and examines why
current legal trajectories are in opposite directions, with the United States
becoming more permissive in terms of database expansion and England and
Wales less so. It posits that any such trend is contingent on many factors.
Political and cultural variables in England and Wales prompted database
expansion, facilitated by the absence of robust constitutional protection for
privacy. Nevertheless, the jurisprudence of the European Convention on Human
Rights now limits this scheme. In contrast, classical liberal ideology and the
construal of the norm of privacy provided a brake in the American context, yet it
appears that non-conviction databases will become more common there given
extant interpretation of the US Constitution.
Keywords DNA (deoxyribonucleic acid) retention; Non-conviction databases
he collection of DNA (deoxyribonucleic acid) from crime scenes and from
individuals is regarded increasingly in political, policing and popular
T discourseasacriticalaspectofeffectivemoderncriminalinvestigation
and prosecution. The benefits of gathering and comparing DNA are manifold:
*
Email: liz.campbell@abdn.ac.uk. I would like to thank Professor Pete Duff and Professor Simon
Cole for comments on previous drafts of this article.
doi:10.1350/ijep.2011.15.4.384
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suspects may be more readily and speedily identified, innocent persons may be
ruled out and the wrongfully convicted exonerated, while the enhanced
likelihood of detection may deter some would-be criminal actors. Beyond this, the
rationale for creating repositories in which to hold such DNA on an ongoing basis
is that it allows for later automated speculative (or ‘cold’) searching, thereby facili-
tating comparisons between stored samples and material collected subsequently
from crime scenes or victims rather than requiring renewed or repeat individual
collection. Despite the consensus regarding DNA’s significance for criminal
justice, policies governing collection and retention of genetic material differ
greatly between jurisdictions. In particular, the issue is most fraught and divisive
concerning arrestees, or ‘non-convicted’ persons more generally, given that DNA
collection from an individual before a criminal trial affects the rights to bodily
integrity,1 to personal privacy2 and the privilege against self-incrimination,3 while
ongoing storage of DNA arguably impacts on the right to privacy and the
presumption of innocence.4
Rather than exploring these affected rights, or reiterating the science of DNA, the
technology of DNA profiling, its significance in criminal investigations, its
1
Extant case law in the United States and Europe indicates that DNA collection does not unjusti-
fiably affect the right to bodily integrity. In United States v Kincade 379 F3d 813 (9th Cir 2004) (en
banc) the intrusion of a blood test for the purposes of DNA collection was described as ‘not signif-
icant’ and in United States v Pool 645 F Supp 2d 903 (2009) the intrusion was seen as ‘minimal’. The
European Court of Human Rights (ECtHR) emphasised in Juhnke v Turkey, 13 May 2008, App. No.
52515/99 at para. 72 that Arts 3 and 8 do not ‘prohibit recourse to a medical procedure in defiance
of the will of a suspect in order to obtain from him or her evidence of his or her involvement in the
commission of a criminal offence’, but this must be warranted on the facts of a particular case and
must not constitute inhuman and degrading treatment. Similarly, although compulsory urine
tests to detect drug consumption in prisoners interfered with Art. 8, they were deemed ‘necessary
in a democratic society … for the prevention of disorder or crime’ (Peters v Netherlands, Commission
Application No. 21132/93, 6 April 1994).
2
In the absence of a Supreme Court on point, US state courts have supported the forcible collection
of DNA from arrestees despite Fourth Amendment challenges: see, e.g., Anderson v Virginia 650 SE2d
702 at 706 (Vir 2006); United States v Pool 645 F Supp 2d 903 (2009); Haskell and Ento v Brown 677 F Supp
2d 1187 (2009).The Grand Chamber of the European Court of Human Rights in S and Marper v United
Kingdom (2009) 48 EHRR 50 found that the taking of DNA pursued the legitimate aim of ‘linking a
particular person to the particular crime of which he or she is suspected’ (at para. 100) and while it
recognised the importance of such information in the detection of crime it ‘delimit[ed] the scope
of its examination’ to the retention of such persons’ DNA (at para. 106). Despite the finding of
breach of the right to privacy under Art. 8 in this specific case, the judgment may be read as
approving collection and retention of DNA in limited circumstances notwithstanding the
implications for privacy.
3
The dicta in Saunders v United Kingdom (1997) 23 EHRR 313 at para. 69 and Schmerber v California 384
US 757 at 761 (1966) discount decisively physical evidence and therefore DNA from the scope of the
privilege against self-incrimination.
4
See S and Marper v United Kingdom (2009) 48 EHRR 50; United States v Pool 645 F Supp 2d 903 at 915
(2009); United States v Mitchell 681 F Supp 2d 597 (2009).
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probative value or associated evidential problems (which have been assessed ably
elsewhere5), this article will consider, through policy analysis, the development of
non-conviction6 databases in the United States and England and Wales, and will
examine why the current legal trajectories are in opposite directions. The policies
and practices in England and Wales were the most permissive in the common law
world as to the populations from whom DNA samples may be taken and retained;
for the past decade samples have been taken from arrested and charged persons
and retained indefinitely but this is currently being amended to accord with
ECtHR case law. In a contrasting trend, the United States, at the federal level, and
many American states have been more circumspect in extending DNA collection
and retention to non-convicted persons, but significant momentum is gathering
towards DNA collection from certain arrestees.
Crime control measures in the US often represent a prototype for other countries,
in terms of the trend and direction of policy transfer.7 However, rather than the
‘American exceptionalism’ so often cited in criminological literature,8 England
and Wales once represented somewhat of an anomaly in regard to surveillance,9
with the most expansive scheme of DNA retention for innocent persons in the
common law world, though this is to change. Comparing these jurisdictions is
instructive due to their shared cultural and common law heritage, and the degree
of criminal justice policy transfer between them in a general sense. This article
will explore numerous ideological, political and pragmatic reasons which may
have hitherto safeguarded non-convicted persons in the United States from DNA
sampling and categorisation. Then it will examine the extent to which the law has
a determinative function insofar as it may curb or alternatively facilitate policy
drivers relating to DNA databases, given that human rights cases now force the
reining in of the English approach while the interpretation of the Constitution
5
F. R. Bieber, ‘Science and Technology of Forensic DNA Profiling: Current Use and Future Directions’
in D. Lazer (ed.), The Technology of Justice: DNA and the Criminal Justice System (MIT Press: Massachusetts,
2004) ch. 3; M. Redmayne, ‘Doubts and Burdens: DNA Evidence, Probability and the Courts’ [1995]
Crim LR 464.
6
The term ‘non-conviction’ is used as shorthand throughout this article in relation to the process of
DNA collection and retention which is not dependent on a criminal conviction and occurs
regardless of the results of investigation or prosecution. One viable alternative term,
‘pre-conviction’, may suggest that a conviction does indeed follow, which is not necessarily the
case, while ‘arrestee’ is not appropriate given that the process may apply to persons prior to arrest
in England and Wales.
7
T. Jones and T. Newburn, ‘Learning from Uncle Sam? Understanding US Influences over UK Crime
Control Policy’ (2002) 15(1) Governance 97; T. Newburn, ‘Atlantic Crossings: “Policy Transfer” and
Crime Control in the USA and Britain’ (2002) 4 Punishment & Society 165.
8
See, e.g., T. Jones and T. Newburn, Policy Transfer and Criminal Justice: Exploring US Influence over British
Crime Control Policy (Open University Press: Maidenhead, 2007) 5.
9
Franko Aas, ‘Surveillance: Citizens and the State’ (2009) 6(3) Surveillance & Society 317 at 318.
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permits expansion in the United States. In other words, political imperatives or
penological trends are circumscribed by the structure and implementation of...
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