This post is by Adam Hepworth, a 2L at Stanford Law School and a CLB student fellow.

Should we require someone convicted of jumping over a subway turnstile to give DNA to a state law enforcement database? New York became the first state to do just that in March when the legislature passed a bill requiring individuals convicted of most misdemeanors to give a DNA sample. Previously, the state limited its DNA collection to individuals convicted of felonies and a handful of serious misdemeanors (like those relating to sexual abuse). The new law is startling because of how many more individuals will be required to give DNA samples; but at the same time, it comes as no surprise: state and federal governments have been ratcheting up DNA database laws for the last decade.

The first DNA collection laws provided a list of serious felony convictions that would trigger sampling requirements. Congress, for instance, passed the DNA Act in 2000; California passed its version even earlier in 1998. These laws were soon broadened to require individuals convicted of any felony to give DNA samples.

California was one of the first states to move beyond taking DNA samples only from convicted felons. Voters passed Proposition 69 in 2004, which immediately required DNA collection from some felony arrestees, and after five years required collection from adults arrested for any felony at all. California thus joined the growing number of states to take DNA samples from individuals who would never be convicted – and in some cases would never even face formal charges.

The federal government followed California’s lead in 2005 and 2006, amending the DNA Act to allow collection of DNA samples from individuals who are arrested, facing charges, or convicted. Both California’s law and the federal law were challenged in court as violating the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” In the last two years, both challenges were rejected by federal courts of appeal.

The federal law was upheld by the Third Circuit in 2011. In an en banc opinion, the majority argued that DNA taken from arrestees and detainees facing charges is primarily used for identification purposes in the same way as fingerprints. The court found that the government’s legitimate interest in identification outweighs the diminished privacy interests of arrestees and pretrial detainees; concerns that the government might begin using DNA profiles for more than identification were brushed aside: “We are ‘mindful of the vast amount of sensitive information that can be mined from a person’s DNA’ . . . Nevertheless, every one of our sister circuits to have considered [these concerns] has rejected them given their speculative nature and the safeguards attendant to DNA collection and analysis.” United States v. Mitchell, 652 F.3d 387, 407 (3d Cir. 2011).

The Ninth Circuit Court of Appeals ruled on the challenge to California’s law this year. The suit had been brought by a group of plaintiffs who were arrested – but either never charged or never taken to court – for conduct like trying to take a person from police custody during a demonstration. The Court found that collecting DNA samples from arrestees was not an unreasonable search because the Government’s compelling interest in identifying arrestees, solving past crimes, preventing future crimes, and exonerating innocent suspects outweighed the reduced privacy interests of arrestees. See Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012).

To date, the Ninth and Third Circuits are the only federal courts of appeal to have considered the constitutionality of DNA collection from arrestees, and it will likely be years before New York’s new statute faces appellate review.  (Collection of DNA samples from convicted felons has been widely considered and universally upheld. Mitchell, 652 F.3d at 397 (citing nine circuit courts that have upheld DNA collection from convicted felons)).  Nonetheless, the trend is clear: state and federal statutory schemes increasingly direct law enforcement to grow DNA databanks by collecting samples from a wider cross section of individuals who come into contact with the criminal justice system. We began by collecting DNA from individuals convicted of the most serious felonies; now we collect DNA from convicted misdemeanor offenders and felony arrestees.

It may be that larger DNA databanks are a good thing. As the Ninth Circuit argued, they help solve past crimes, prevent future crimes, and exonerate innocent suspects. But of course, those policy justifications support taking DNA from every individual; a national DNA database would no doubt be a powerful law enforcement tool.

If we aren’t ready to go that far, we should stop to think about whether it makes sense to treat arrestees and those convicted of misdemeanors as a subclass of citizens with a reduced privacy interest in their own DNA. We may worry that following this course exacerbates existing biases in the criminal justice system and encourages law enforcement to linger its eye on those individuals unlucky enough to attract its gaze even for a moment.

Racial and ethnic minorities, for instance, face increased law enforcement scrutiny because of expansive DNA collection policies. For example, FBI crime reports in 2010 found that black arrestees made up 28% of arrests despite comprising only 13% of the population. DNA databanks reflect this racial disproportionality, making it more likely that police investigations will target minorities. This, in turn, perpetuates already dramatic racial disparities in sentencing and imprisonment rates (for instance, the Bureau of Justice Statistics found that on the last day of 2010 black males were imprisoned at a rate seven times higher than white males).

A similar story can be told for any group disproportionately represented in the criminal justice system. The broader concern is that expanding DNA collection laws have shifted a line once drawn between serious offenders and the rest of the population to one roughly drawn between people who have brushed up against law enforcement and those who have not. There is a basic question about whether it is fair to create a law enforcement system that investigates the same individuals over and over again – individuals who may first have been targeted for a relatively minor offense, or even purely by mistake.

On top of this, we may worry that the limitations and risks of DNA evidence will go unnoticed in a world where DNA databases are populated by individuals perceived to be “on the wrong side of the law.” DNA evidence is not always a silver bullet, if for no other reason than that collection, testing, and interpretation are susceptible to human error; but it is tempting to understate these kinds of evidentiary concerns when DNA databases point to suspects seen as known lawbreakers.

In any case, it’s time to take notice of the creeping expansion of DNA collection laws in the last decade and decide how far we are willing to take these laws. Otherwise, we might look back ten years from now and see that they have crept right past the limits that we thought reasonable.

Adam Hepworth