Essay: DNA Evidence
Catching Repeat Violent Offenders Using DNA
Collecting a standardized database of DNA "fingerprints" of convicted felons helps solve crime, prevent false imprisonment, and stop serial rapists and murderers. All fifty states currently collect and store DNA data and samples for the purpose of identifying repeat criminal offenders. However, the legislation that brought about these DNA databases often varies in scope and application from state to state. As a result, Americans may not be adequately protected from the misuse or misappropriation of this data, and in some cases, are not protected from violations of their Fourth Amendment Constitutional rights against unfair search and seizure. Evidence suggests that only the acceptance of uniform, well-conceived standards can assure fairness and address privacy concerns.
DNA consists of a chain of chemicals called nucleic acids or nucleotides in various sequences. Found in all our bodies' nucleated cells: white blood cells, cells found in saliva, sperm cells, and the cells surrounding hair follicles, an individual's entire DNA is identical regardless of the type of cell that it originates from. Each strand of DNA consists of alternating phosphate and sugar (deoxyribose) groups. The individual nucleotides bond to the deoxyribose groups in a random sequence making each individual's DNA unique except in the case of identical twins. The DNA fingerprint is an analysis of the sequence of alternating phosphate and deoxyribose groups from a specific location on the DNA chain (Webster 122). When we speak of a DNA fingerprint, we are not referring to all of the information available from human DNA, just a manageable and representatively unique sample. To create the DNA fingerprint, a sample of blood, saliva, hair, has to be obtained, and in this sample resides the individual's complete genetic information. At this point in time, most DNA samples are not being destroyed, but are being warehoused for possible future utilization.
The disparity in the scope and application of DNA database laws results from the way that the American criminal justice system consists of laws passed on local, state, and federal levels. It fell to the individual states to take the primary responsibility for legislation that created DNA databases, and the approaches varied according to their laws and political climates. Another system has been created by the federal government. The FBI's CODIS (Combined DNA Index System) initiative links federal, state, and local crime labs together in a searchable index. As of January 2006, the CODIS DNA index contained over three million profiles (NDIS Statistics).
In addition to CODIS, the federal government also draws blood samples from prisoners held in federal prisons for analysis, even when they are under no suspicion of having committed another criminal act. This has alarmed privacy advocates like the American Civil Liberties Union (ACLU) because it may violate Americans' constitutional rights against unlawful searches, as the prisoners have not been accused of another crime. Some might consider it analogous to having one's house searched because some goods were stolen across town. Proponents believe, and the Supreme Court has supported the concept, that the prisoners have a reduced right to privacy as a result of their criminal convictions.
According to DNAResource.com, thirty-one states collect DNA samples from juvenile offenders, even though juvenile adjudications are not criminal convictions. This goes against the traditional principle of rehabilitation held throughout the juvenile justice system. This tradition includes the sealing or expunging of juvenile records following the completion of their punishment, assuring that their criminal records do not follow them into their adult lives (ACLU). Prosecutors typically request that violent juvenile criminals be tried as adults, and in some states there are rules in place that cause this to happen without the need for prosecutors' intervention. It follows that law enforcement agencies are sampling and storing DNA from juveniles that are not rapists or murderers, and thus compromising a long-held tradition of rehabilitation.
The "Advancing Justice Through DNA Technology Act of 2003," passed by the House of Representatives as HR3214 but never passed in the Senate, proposed that the statute of limitations be amended in cases regarding DNA evidence to begin at the point that the suspect is implicated in the crime. The statute of limitations laws rose from the experience that over time memory fades, witnesses disappear or die, and the details of proper evidence handling can be neither proved nor disproved. Memory still fades, witnesses still disappear or die, and serious issues concerning DNA evidence have come to light. In 2003, the Houston crime lab underwent an audit that revealed widespread problems associated with their handling and analysis of DNA evidence (Moreno A03). Other labs have also been investigated, and while the system does not appear to be unreliable as a rule, evidence should not be considered incontrovertible unless its proper handling and analysis can be proven. The DNA evidence in the O.J. Simpson case was discounted by the jury because the defense was able to introduce a suspicion that the results could have been fabricated due to the fact that false reporting, known as dry-labbing, had occurred in the past. Stalled in the Senate Judiciary Committee, HR3214 did not become law and expired with the 108th Congress, but the momentum had been strong, passing in the House with bipartisan support and a vote 357 in favor to 67 against (Library of Congress).
Twenty-six states collect DNA samples for some misdemeanor crimes, missing the mark of identifying and removing repeat violent offenders from society. Forty-eight states collect and store DNA samples from those in Community Corrections programs, those found guilty of a crime but allowed to work and live in the community, and who, therefore, must not be considered dangerous. Three states currently store DNA samples from arrestees, who are not guilty of committing a crime under our legal system. A Senate bill, approved by the Senate Judiciary Committee and supported by the White House, will allow federal authorities the right to collect and record samples of DNA from people arrested or detained for federal crimes without having been convicted (Krim). While DNA may be an important addition to the forensic arsenal of investigators, should those who have simply been detained, or those who have been found innocent, have their DNA forever warehoused and referenced?
At the same time that our legislators work to enlarge the scope of the DNA databases across the country, there are an estimated 250,000 to 400,000 cases of rape and murder going back to mid-1980s where the evidence has not yet been tested. Even the backlog of current cases is staggering, estimated by the government at 57,000 cases in 2003. For example, as of November 2005, Utah had collected an estimated 28,000 DNA samples. Of these, 11,000 made their way into the state and FBI's databases, 12,000 were outsourced to private labs where testing had not been completed, and the remaining 5,000 sat untouched in state crime labs (Rosetta 1). Funding has been increased from federal and state sources to help reduce state testing backlogs but money does not solve all of the problems. Illinois tried to reduce its testing backlog through outsourcing, but an audit of the results of fifty samples sent to a private laboratory in Virginia found errors in eleven, or 22%, of the test results (Ruethling). The expansion of DNA testing seems less likely to make Americans safe than the judicious use of the technology would. When used specifically in cases of murder, rape, and particularly violent crimes, one can easily recognize the importance of DNA fingerprinting. While the nation faces testing backlogs, loss of quality control due to outsourcing, and a system bloated with the sampling of detainees, juveniles, misdemeanor and other less dangerous criminals, those looking to gain political advantage by being tough on crime continue to propose and add laws, increasing the time it takes to complete testing and giving criminals more time on the streets.
Unlike the DNA fingerprint, the DNA sample contains information about genetic disorders, predisposition to some diseases, and ancestry. As time goes by, and more genes are identified, other predictive traits may also be discovered. Only one state, Wisconsin, explicitly mandates the destruction of DNA samples after DNA profiling results are completed (Webster 137). Virginia's law implies that samples should not be retained, and only a few states have specifically legislated that the samples cannot be used for the purpose of obtaining information about physical traits or predisposition for disease (137). History has shown that even when privacy is specifically legislated, as in the case of Social Security numbers, incidence of abuse occurs. The potential for misuse of this data demands that a proactive approach be implemented to ensure a uniform application of laws to hold privacy foremost among considerations.
The field of genetic testing, a relatively new science, grows dynamically and news of breakthroughs are common. Time-tested rules that apply specifically to the handling of the information derived from our DNA do not exist. We must rely instead on the more general rights that come to us from our legal tradition and from the Fourth Amendment to the Constitution, guaranteeing "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." While this would seem to be sufficient, lawmakers overlook these precedents in the interest of a greater good, protecting society from serial criminals. Without the control that these protections afford, juveniles, innocent detainees, those convicted of crimes unassociated with DNA evidence, and those cleared of crimes now have their most personal information indexed and stored by governmental authorities. This information has value to researchers, private investigators, employers, and insurers. Only wise choices made today will guarantee privacy tomorrow. A standardized, well-reasoned approach to DNA database laws needs to be developed. The rights and privacy of Americans must be weighed appropriately against the benefits of expanded use of DNA testing. The system needs both transparency in its scope and security in its execution, with strong penalties for any that would violate the trust of maintaining such personal data. DNA databases, created to stop serial sex criminals and expanded to include other violent crimes, seem logical and appropriate, but moving beyond their original intent requires that we evaluate the costs against the gains.
ACLU. "ACLU Letter to Senators of the Judiciary Committee Expressing Concerns about S. 1700, the 'Advancing Justice Through DNA Technology Act of 2003.'" 03 2004. American Civil Liberties Union. 02 Mar. 2006 <http://www.aclu.org/crimjustice/gen/10229leg20040603.html>.
Krim, Jonathan. "Bill would permit DNA collection from all those arrested." The Washington Post 24 Sep 2005. 02 Mar 2006 <http://www.washingtonpost.com/wp-dyn/content/article/2005/09/23/ AR2005092301665.html>
Library of Congress Thomas Bill Search. Library of Congress. 02 Mar. 2006 <http://thomas.loc.gov/cgi-bin/bdquery/z?d108:HR03214:@@@L&summ2=m&>.
Moreno, Sylvia. "Police lab's troubles grow." The Washington Post 02 Oct. 2004, Final ed.: A03.
"NDIS Statistics." CODIS Statistical Click Map. FBI. 02 Mar. 2006<http://www.fbi.gov/hq/lab/codis/clickmap.htm>.
Rosetta, Lisa. "DNA database may lose funds." The Salt Lake Tribune 16 Nov. 2005: D1
Ruethling, Gretchen. "Illinois State Police cancels forensic lab's
contract, citing errors." The New York Times 20 Aug 2005. 02
Mar 2006 <http://www.nytimes.com/2005/08/20/national/20lab.html?
"State DNA Database Laws Qualifying Offenses (As of June 2004)." DNA Resource.
Smith Alling Lane Governmental Affairs Attorneys at Law. 02 Mar. 2006 <http://www.dnaresource.com/Table of State DNA Laws - 2003.pdf>.
Webster, Jr., Warren R. "DNA Database Statutes & Privacy in
the Information Age."
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