Is it time to take DNA samples from felony arrestees in Utah?

February 11, 2014

On Monday, I had the chance to testify before Utah’s House Law Enforcement and Criminal Justice Committee in support of H.B. 212, a bill that would allow for obtaining DNA samples from all persons arrested for felonies in Utah.  This bill follows on the heels of the U.S. Supreme Court’s decision last June, in Maryland v. King, that DNA sampling from arrestees for serious crimes complied with the Fourth Amendment. (For Orin’s analysis of King, see this post.)

Since the constitutional questions have been resolved, the remaining question is, of course, whether such testing is good public policy.  To my mind, the public policy arguments in favor of such testing are overwhelming.  Taking a DNA sample upon arrest is just like any other routine law enforcement identification procedure at arrest, such as fingerprinting and photographing.  No one disputes that law enforcement agencies should be entitled to follow such identification procedures.  DNA sampling is simply the 21st century equivalent of this standard procedure.

The process of DNA “sampling” needs to be distinguished from DNA “profiling,”  With DNA sampling, only a very small portion of the genetic information is retained and analyzed.  These sequences reveal identification information only, which is the same type of information gleaned from the pattern of the whorls and ridges in a fingerprint.  Thus, DNA sampling provides no information about a person’s susceptibility to disease, bodily structure, or mental functioning.   Also, taking a DNA sample is quick, painless, and minimally invasive process.   Just as Utah’s law enforcement agencies fingerprint everyone they arrest for a serious crime, they should take a DNA sample from everyone they arrest for a serious crime.

DNA sampling is also critical to apprehending dangerous criminals.  The reason that more than half the states, as well as the federal government, take DNA samples from those arrested is that it is a very valuable tool for solving criminal cases, particularly rape cases where biological crime scene evidence is often available. 

I testified because I recently heard a powerful  presentation from Jayann Sepich

Sepich’s  22-year old daughter, Katie, was a graduate student at New Mexico State University.  On the night of Aug. 31, 2003, Katie was brutally raped, sodomized, robbed, strangled, set on fire, and abandoned at a dump.  Her case went unresolved until December 2006, when the New Mexico DNA database matched Gabriel Avilla to the crime.  The saddest part of this case is the fact that Avilla could have been caught a full three years earlier.  In addition to his convictions for several crimes, Avilla was arrested on felony charges in November of 2003, just a few months after Katie’s murder.If at that time New Mexico had required a DNA sample from Avilla’s felony arrest, the case may well have been solved much sooner, and perhaps prevented Avilla from victimizing others.  New Mexico has since passed legislation allowing DNA sampling from people who are arrested, and many other states are moving in that direction.  Sepich’s informative Web site has lots of information about the subject.

I hope that Utah will join New Mexico and a majority of other states around the country in bringing this valuable tool to law enforcement, as I explained in this letter I sent to H.B. 212′s sponsor.  After hearing from me and other witnesses Monday, the committee on Tuesday morning approved the bill unanimously.

Paul G. Cassell teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah. He also served as a U.S. District Court Judge for the District of Utah from 2002 to 2007.
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