US v. Kincade (9th Cir. August 18, 2004) - mandatory DNA profiling and the 4th Amendment

Recommended reading: U.S. v. Kincade, No. 02-50380 (9th Cir. August 18, 2004). Topic: whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes.

As the majority opinion states:

Pursuant to the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub. L. No. 106-546, 114 Stat. 2726 (2000), individuals who have been convicted of certain federal crimes and who are incarcerated, or on parole, probation, or supervised release must provide federal authorities with “a tissue, fluid, or other bodily sample . . . on which a[n] . . . analysis of th[at sample’s] deoxyribonucleic acid (DNA) identification information” can be performed. 42 U.S.C. §§ 14135a(c)(1)-(2); id. at §§ 14135a(a)(1)-(2). Because the Federal Bureau of Investigation (“the Bureau”) considers DNA information derived from blood samples to be more reliable than that obtained from other sources (in part because blood is easier to test and to preserve than hair, saliva, or skin cells), Bureau guidelines require those in federal custody and subject to the DNA Act (“qualified federal offenders”) to submit to compulsory blood sampling. See Nancy Beatty Gregoire, Federal Probation Joins the World of DNA Collection, 66 Fed. Probation 30, 31 (2002). Failure “to cooperate in the collection of that sample [is] . . . a class A misdemeanor,” punishable by up to one year’s imprisonment and a fine of as much as $100,000. 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571 & 3581.

The Court's opinion is written by Judge O’Scannlain; there is a concurrence by Judge Gould; and very strong dissents by Judge Stephen Reinhardt, and Judge Alex Kozinski; as well as by Judge Hawkins. This are very interesting opinions, not just for your criminal cases, but for some awarness of the dangers of technological advances and reliance on the Government's good use of the same, or said in the dissenter's words, "the slippery slope."