Academic

Fender on Probation, Parole, and DNA Collection

By Lawrence Solum

Jessica K. Fender (Chicago-Kent College of Law) has posted Probationers, Parolees and DNA Collection: Is this 'Justice for All'? (Seventh Circuit Review, Vol. 3, p. 312, 2007) on SSRN. Here is the abstract:

In 1994, the DNA Identification Act permitted the government to establish a national database (CODIS) where it could collect DNA samples from those convicted of certain violent crimes. In the last few years, DNA collection statutes have been repeatedly expanded, to the point where some now require samples upon arrest. Not surprisingly, the federal DNA collection statute has been challenged repeatedly on Fourth Amendment grounds. In the Seventh Circuit, this issue was most recently addressed in United States v. Hook, a case in which a white-collar criminal on supervised release challenged the federal DNA collection statute. The court held that the collection was not an unconstitutional search under the Fourth Amendment. In doing so, however, the court used the special needs test - a test that the majority of other circuits do not use and, more importantly, a test that had been effectively disclaimed by the Supreme Court and by two prior Seventh Circuit panels. This Comment argues that the Seventh Circuit improperly applied the special needs analytical framework. Instead, the court should have used the reasonableness or totality of the circumstances balancing test endorsed by the Supreme Court. Further, this Comment argues that the Seventh Circuit must take a close look at the balancing required under the reasonableness test, since courts engaging in a reasonableness analysis have routinely overlooked considerations unique to DNA collection. In doing so, the court may conclude that DNA collection for those on federal supervised release or probation is unconstitutional under the Fourth Amendment.

Full post as published by Legal Theory Blog on April 28, 2008 (boomark / email).