Ted Bundy vs. Arrestee DNA Databasing
When Ted Bundy was executed in January of 1989 I was in my third year of law school and had already accepted a position in a District Attorney’s office in Pennsylvania. A soon to be prosecutor, I naturally watched the spectacle of his upcoming execution with interest. He continued to capture the attention of the media and the public by granting interviews at the last minute, feigning remorse at the murder of his last, 13-year-old victim, and blaming his necrophilia on pornography he saw as a child. His Rob Lowe-esque good looks and demeanor made fathers realize that their twenty something- year-old daughters could have easily succumbed to his charm if they had had the misfortune of crossing him in their ordinary lives. But with him and the aura and circus that surrounded him, it was easy to skip over the details—at least 30 women and girls between the ages of 12 and 26 tortured, raped, and murdered; body parts bitten off; necrophilia; crimes committed across more than six states; two escapes; and questions from hundreds of parents, “Did he kill my daughter too?”
But for all the attention the media paid to Bundy’s charm, the public didn’t overlook those details. What I found to be the most compelling footage of the whole Bundy execution circus was not his last interview or the replaying of his charming self-representation in court. No, the most intriguing coverage was the footage of the crowds lining the streets on the way to where Bundy was to be executed. Hundreds of people stood in the streets with signs wishing him a speedy trip to hell. There was, as described by some reporters, a festive atmosphere in anticipation of Bundy’s death by electrocution.
It seemed to me that society was tapping a communal high pressure valve. A system that had failed society by allowing over 30 women to be raped and murdered was finally working and justice was being done. This was their release. The almost joyous atmosphere was a reaction to the pent-up frustration and angst over a murdering rapist who had beaten the system time and time again with name changes, charmed excuses, and sinister planning but was finally going to get what he deserved.
To fast forward to the present, it was announced that a vial of Bundy’s blood has been found by investigators with the Florida Department of Law Enforcement and that a DNA profile has been developed and entered into CODIS. He is the classic, the poster-child criminal for NDIS. He was truly national in his crime spree, and had he been stopped after one of his first murderous episodes, we literally don’t know how many lives would have been spared. (We simply just don’t know how many women he ultimately killed.) I would be surprised if his case wasn’t mentioned in Congressional testimony before the DNA Identification Act of ’94 was passed.
So it’s more than a little ironic that the week before the DNA of one of America’s most notorious serial killers is entered into a DNA database, the First Appellate Court in California has ruled its arrestee database to be unconstitutional. Now there is a contrast for you. The single best example of the potential of DNA technology and DNA databases not just to solve crime but to—in the most literal sense—save lives, summarily thwarted with a court decision based on the “totality of the circumstances” analysis.
Last week in People v. Buza, the Appellate court in California ruled that the potential—not the actual, mind you, the potential—that someday, somehow, law enforcement just might be able to learn “something” about an individual from those non-coding loci we use to fight crime was enough to declare the law unconstitutional. It states that, “the amount of stigmatizing information that can be extracted from the non coding DNA currently analyzed for the DOJ database is now a subject of debate,” with no evidence that there is actually anything to be learned that is stigmatizing—just that there is debate. The entire rationale for the decision is based not on what police actually do, but rather what they might do in a worst case scenario, and in violation of laws establishing the criminality of such misuse in every single state.
Contrast that with what CODIS actually does on a daily basis. It identifies actual criminals, thereby exonerating actual innocent suspects who might otherwise be arrested and convicted, and protects actual victims and prevents actual future crime. There’s nothing “potential” about it, other than to get even better.
But to return to the irony of Ted Bundy’s case roaring back to the spotlight. I said that it was really the public’s visceral lashing out at Bundy, in the only way it could, that I thought was so interesting and telling. Their lining the streets to send Bundy on his way was a demonstration against the very nature of what had happened over the previous 20+ years. Well,California’s arrestee database law was a public display of disappointment over the system’s failure too. But this time it was in a very productive and proactive way. California’s database law wasn’t passed by its legislature; it was passed by its citizens in 2004 through a referendum—Proposition 69. The failure of the Legislature to listen to the people and its failure to authorize an arrestee DNA database led not only to the passage of the proposition but to its passage by 62%. By proposition standards, that is an overwhelming majority. This wasn’t a political issue. From the grassroots, this was about public safety.
I don’t mean to suggest that there is a “publicly initiated referendum” exception to Fourth Amendment protections. The masses can craft unconstitutional laws every bit as well as our elected officials. But when the Constitutional analysis is based on a “reasonableness” standard—whether the search and seizure is “reasonable”—the community standard for what Californians believe is reasonable is crystal clear. They got off their couches, out of their chairs, dismounted their bikes, and took detours on their way home from work to go to the polls in significant numbers and make clear what they “The People” thought was reasonable.
I think they were also making the point that the rights listed in the Declaration of Independence—life, liberty, and the pursuit of happiness—were rights to be protected not only against the threats from tyrannical governments but also against maniacal rapists and murderers like Ted Bundy. Ted Bundy ripped away the life, liberty, and every other right of more than 30women and girls and their families. And unless the Supreme Court in California recognizes that California’s citizens have deemed arrestee DNA databasing not only reasonable but necessary, and overturns Buza, more victims in that state will suffer.
Ted Bundy confessed to killing 30 women between 1974 and 1978. There were probably many more. You know what happened more than ten years earlier? He was arrested for the first time.
Chris Asplen consults with local, state, and foreign governments and law enforcement agencies on the use of forensic DNA technology. Chris is also the Executive Director of DNA 4 Africa and a member of the Crime Victim Bar Association. He may be reached at firstname.lastname@example.org.