potential value in forensic science by statutorily creating DNA databanks on convicted felons.37 In general, the laws require that a person convicted of a felony involving a sexual assault submit to phlebotomy before parole; the blood sample is to be subjected to DNA typing and stored under the control of authorities. The California law calls for the testing of felons convicted of murder and other nonsexual felonies involving violence to a person. The Iowa law does not make clear who will be tested. The Virginia law provides for testing of all convicted felons.
Those laws were enacted because of the high rate of repeat felonious behavior by convicted persons. For example, available data on Virginia offenders shows that 36.3% of persons convicted of rape and 32.8% of persons convicted of aggravated assault (including sexual assault) are convicted of another crime within 5 years.38 The laws are premised on the fact that criminals sometimes leave biological evidence at the crime scene and that the comparison of the results of DNA typing of such samples with profiles stored in the forensic laboratory might lead law-enforcement officials quickly to a prime suspect.
The creation of felon DNA databanks raises a number of challenging constitutional questions, e.g., whether extracting blood for DNA analysis in anticipation of future conduct is an unreasonable search or seizure under the Fourth Amendment and whether the creation of such banks violates a privacy right of the first-degree relatives of persons whose DNA samples are stored (see Chapter 3). This committee is not prepared to recommend how these important questions should be resolved, but recognizes that they deserve careful scrutiny. So far, one federal district court has heard a challenge to the constitutionality of a felon DNA databank. Its order for summary judgment favored the Virginia law.39
The committee did not conduct a detailed study of DNA databanks for law-enforcement purposes. However, the committee does recognize that, as scientific and technical concerns about DNA typing are resolved, it is highly likely that databanks will proliferate, interconnect, and communicate. There is clearly a need to conduct further studies on the issue. It will be important to measure the perceived benefits of such databanks against possible harm. We must explore, among other questions, the permissible purposes of such banks, how to minimize invasion of legitimate privacy interests, and how to determine the appropriate response when such interests are violated40 (see also Chapters 5 and 7).
It is important to remember that "DNA typing" is a catch-all phrase for an array of quite different technologies for measuring DNA variations among