Hastings Constitutional Law Quarterly


Joy Huang


In 2000, Congress passed the DNA Analysis Backlog Elimination Act ("DNA Act"), mandating DNA samples from certain types of felons to be included in the FBI's Combined DNA Index System ("CODIS"). Since its inception, the DNA Act has faced many constitutional challenges, most recently in the 9th Circuit with the case United States v. Kincade, which involved two successive Ninth Circuit cases. The first case was decided on October 2, 2003, wherein a three-judge panel controversially deemed the DNA Act unconstitutional. The decision was subsequently vacated and reheard by the Ninth Circuit sitting en banc, in which the Circuit Court affirmed the defendant's convictions and found the DNA Act constitutional. This note examines the controversies and constitutional issues surrounding these two Ninth Circuit cases, focusing on the fundamental struggle within the Ninth Circuit between different perceptions of the goals of the DNA Act and the breadth of the possible ramifications of upholding the Act as constitutional. Using US v. Kincade as its focus, this note also explores the issues surrounding the DNA Act, and will speculate as to possible reasons why the Ninth Circuit is still much divided on the issue of mandatory DNA extractions of parolees.