The Myth of Arrestee DNA Expungement

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Our national DNA database, CODIS, now contains over two million individual profiles taken from arrestees. Most states and the federal government collect felony arrestee DNA. The justification is clear: if we collect DNA after conviction, why not earlier? But what if the arrestee’s case goes nowhere, either because the charges are dropped, never brought at all, or the arrestee is acquitted? Every jurisdiction that collects arrestee DNA permits, by the terms of its collection statute, those eligible to have their genetic information expunged. Indeed, federal law requires all states participating in CODIS to establish expungement provisions. Otherwise, a mere arrest would result in the permanent relinquishment of a person’s genetic information.

But arrestee DNA expungement is a largely a myth. In most states where the police collect DNA samples upon arrest, the process of expungement is burdensome, costly, and must be initiated by the arrestee. Consequently, very few arrestees eligible for DNA expungement—because they were never charged or because their charges were dismissed—actually have their genetic profiles removed. For several states investigated here, only a handful of the thousands of arrestee DNA profiles added to the database have ever been expunged.

As a result, an arrest alone does lead to permanent forfeiture of genetic privacy in most states. These states are following the letter but not the spirit of the federal expungement requirement. If states wish to keep the genetic information of all arrestees indefinitely, legislators should debate such policies openly, rather than establishing them through onerous expungement procedures. This Essay is the first to provide information on the number of actual DNA expungements, and argues for automatic expungement policies. In states where such policies exist, a significant fraction of arrestee DNA profiles have been expunged, nearing the estimated proportion of arrestees eligible for expungement.

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