Strands of Privacy: Privacy Rights and DNA Sample Collection from Federal Criminal Defendants Charged with Felonies

Abstract

On September 14, 2010, the Ninth Circuit held in United States v. Pool that the U.S. government can require federal defendants charged with felonies to provide a DNA sample as a condition of pre-trial release. The chain of rulings that led to this decision was set into motion in January 2009 when Jerry Arbert Pool was indicted in the Eastern District of California for possessing and receiving child pornography in violation of two federal statutes. Pool agreed to all of the court's bail conditions, except for one - Pool refused to provide a DNA sample. In his appeal to the Ninth Circuit, Pool challenged the constitutionality of 2006 amendments to the Bail Reform Act that expanded a federal defendant’s requirement to “cooperate in the collection of a DNA sample” to those charged with felonies, who had not yet been convicted of their alleged crime. This paper (1) addresses the Fourth Amendment implications of the Pool ruling in allowing the government to collect DNA samples from federal defendants charged with felonies as a mandatory condition for bail release; (2) examines the existing laws and practices, contrasting recent rulings with the Fourth Amendment, the Eighth Amendment, and the separation of powers doctrine, and (3) proposes other options that better comport with constitutional protections, such as the government incentivizing DNA collection through reduced financial bonds in exchange for the genetic sample, among additional alternatives.

Keywords: Criminal Procedure, Fourth Amendment, DNA collection, Ninth Circuit, privacy rights, 4th Amendment, United States v. Pool

JEL Classification: K10, K14, K19, K42