Expanded DNA Databases: Violation of Privacy or Crime Solving Tool?
By Rebecca Waters
It has become common practice to collect DNA samples from convicted violent crime offenders, but recently states and even the FBI have been expanding their databases by collecting DNA from suspects who have been arrested but not convicted.
As of last month, the New York Times reported, the Federal Bureau of Investigation will join 17 states that collect DNA samples from those awaiting trial and will collect DNA from detained immigrants.
Opponents of increased DNA cataloguing call it an invasion of privacy and a violation of the Fourth Amendment protections against unreasonable search and seizures. With the existing DNA backlogs some also fear that an increase in DNA collection for minor crimes will compound the problem. Proponents argue that by expanding the database we will be better able to solve crimes and even cold cases, identify repeat offenders before their crimes escalate, and even exonerate wrongfully accused inmates.
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Sen. John Morse, D-Colorado Springs, the former police chief of Fountain, introduced Senate Bill 241 in Colorado, allowing DNA tests to be taken at the time of an adult's felony arrest. Current laws, require DNA tests to be performed at the time of conviction. "When you've got dead women, privacy takes a back seat," Morse said, in an argument supporting the bill as a life saving measure.
Bill 241 is dubbed "Katie's Law," after Katie Sepich, a 22-year-old graduate student at New Mexico State University who was murdered in 2003, the Denver Post reports. She fought back, and skin and blood found under her fingernails held the DNA of her killer.
The man was arrested less than three months later on aggravated burglary charges and convicted, but he disappeared before his sentencing. No DNA sample was taken. When he was finally captured in 2006 and his DNA tested, it matched the samples found on Katie.
Her parents, stunned to learn that the state did not take DNA when the man was arrested for burglary, began a quest to prevent similar cases. Seventeen states have now passed some version of Katie's Law.
David R. Cameron, a professor of political science at Yale University, voiced his strong support for expanded DNA databases, in a letter to the Boston Globe. He cites the crime solving virtues of DNA databases including the chance that a larger database could help exonerate wrongfully convicted inmates.
“There are individuals now in prison who were convicted of crimes they didn't commit in which there was DNA from an unidentified source. According to the Innocence Project, 235 individuals have been exonerated by DNA,” Cameron wrote. “Expanding the DNA databases won't eliminate wrongful convictions. But it will lead to the exoneration of some who are now in prison for crimes they didn't commit.”
There is no question that DNA is a powerful tool in solving crimes. As a unique identifier it has the power to incriminate or free a suspect with an accuracy that few types of evidence can provide. As in many cases, DNA played a key role in a recent Hawaiian trial of an eight-year-old cold case in which the prosecutor called DNA "the most powerful tool in solving crimes today." But do the ends justify the means? Should the pursuit of justice lead to violations of privacy?
The ACLU is keeping a close eye on a Texas House Bill which would require DNA from all Texans convicted of a felony, including juveniles and those on probation. In addition to privacy issues concerning the collection of DNA, the ACLU fears that the measure will increase the DNA backlog.
In Colorado Sen. Morgan Carroll, D-Aurora, and Sen. Bill Cadman, R-Colorado Springs, denounced the measure allowing DNA sampling at the time of arrest as unconstitutional and an invasion of privacy.
In the meantime, Fox News recently reported on the outrage a Health Department DNA database has caused.
“The Health Department wanted to be able to test every child for [genetic] conditions and that was when we first found out they had a repository of DNA that they have been keeping since 1997,” Twila Brase, president of the Citizens Council on Health Care, told Fox. “There are a lot of parents who would be OK with the testing, but they are not OK with the idea that the government is going to keep their baby's DNA and use it for research afterward. The… health departments are essentially creating registries of the genetic results of all these children. And that's 4 million children every year all across the nation.”
Initiatives like these might set a precedent for the government collecting genetic information of innocent citizens. While this kind of massive DNA database could be useful both in crime solving and medical research, it is important to address the ethical issues before the programs progress. Is there an assumption of guilt inherent in taking DNA samples upon arrest rather than upon conviction? Should minors, who are generally afforded special legal protections, be exempt from genetic profiling?
With the increased prevalence and growing ease of genetic testing, is an expanded DNA database inevitable? The San Diego Business Journal recently reported the availability of over-the-counter DNA test kits. If for $399 consumers can use a spit sample or a cheek swab to perform genetic tests offering a glimpse of their ancestry, disease susceptibility, and more than 100 other traits, how long will it be until every medical file includes a full DNA profile.
On the flip side, the European Court of Human Rights ruled in December against the United Kingdom for retaining DNA records of innocent persons. The court stated that "the retention in question constituted a disproportionate interference with the applicants' right to respect for private life and could not be regarded as necessary in a democratic society," the BBC reported.
“DNA databases were built initially to deal with violent sexual crimes and homicides—a very limited number of crimes,” Harry Levine, a professor of sociology at City University of New York who studies policing trends, told the New York Times. “Over time more and more crimes of decreasing severity have been added to the database. Cops and prosecutors like it because it gives everybody more information and creates a new suspect pool.”
The courts, however, have yet to rule on the recent bills allowing the collection of DNA from juveniles and from suspects who have yet to be convicted. We are likely to see more cases addressing these important issues in the years to come. In the meantime, those of us involved in Forensics should take the time to consider this issue.
