Dangerous Excursions: The Case against Expanding Forensic DNA Databases to Innocent Persons

See Axelrad S. , Survey of State DNA Database Statutes (2005), American Society of Law, Medicine & Ethics website, available through <www.aslme.org> (last visited February 14, 2006).

For an in-depth discussion of California's recent database expansion to collect and retain DNA samples from all felony arrestees starting in 2009, see Simoncelli T. and Steinhardt B. , “California's Proposition 69: A Dangerous Precedent for Criminal DNA Databases,” Journal of Law, Medicine & Ethics 33, no. 2 (2005): 279–293. Reprinted in Journal of Law, Medicine & Ethics 34, no. 2 (2006): 199–213.

The “DNA Fingerprint Act of 2005” was signed into law as Title X of the “Violence Against Women Act” (VAWA), Pub. Law No. 109-162 on January 5, 2006. This legislation was attached as a rider to the Violence Against Women Act, a large and broadly supported reauthorization bill, and was not the focus of a single public hearing.

See Asplen C. , Proceedings of “The Human Genome Project, DNA Science and the Law: The American Legal System's Response to Breakthroughs in Genetic Science,” National Institutes of Health, Washington, DC, October 19, 2001, in American University Law Review 51 (2002): 367–501, at 401.

See Kaye D. H. and Smith M. E. , “DNA Identification Databases: Legality, Legitimacy and the Case for Population-Wide Coverage,” Wisconsin Law Review (2003): 413–459.

See Peterson R. S. , “DNA Databases: When Fear goes too Far,” The American Criminal Law Review 37 (2000): 1219–1238, at 1228.

See Quarmby B. , “The Case for National DNA Identification Cards,” Duke Law Technology Review 2 (2003): 1–48.

U.S. Const. Amend. IV.

See for example Jones v. Murray , 962 F.2d 302, 306 (4th Cir. 1992). For a detailed overview of legal challenges relevant to DNA testing and retention, see Rothstein M. and Carnahan S. , “Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Data Banks,” Brooklyn Law Review 67 (2001): 127.

In State v. Olivas , the court upheld the Washington DNA testing statute, stating that the purpose of the DNA data bank was to deter and prosecute recidivist acts, and that this purpose was a “special need” of government beyond normal law enforcement. 856 P.2d 1076, 1065–86 (Wash. 1993).

See for example Landry v. Attorney General , 709 N.E. 2d 1085, 1092 (Mass. 1999). See also Hudson v. Palmer, 468 U.S. 517, 523 (1984); People v. Wealer, 636 N.E. 2d 1129 (Ill. Ct. App.); Jones, 962 F.2d at 308.

For example, in Shelton v. Gudmanson , the court found that Wisconsin's DNA testing of prison inmates was related to law enforcement, but allowed it to be considered within the “special needs” exemption because it was “not undertaken for the investigation of a specific crime.” 934 F. Supp. 1048, 1050 (W.D. Wis. 1996).

Under City of Indianapolis v. Edmond the Court struck down a program in which police used dogs to sniff for drugs in vehicles pulled over in groups at fixed roadblocks because they found the primary purpose of the checkpoint program to be related to the general interest of crime control. 531 U.S. 32 (2000). Similarly, in Ferguson v. City of Charleston, the court struck down a program in which a university hospital tested urine samples from pregnant women for cocaine and reported positive results to the policy because the primary purpose of the program was said to be the arrest and prosecution of drug-abusing mothers, and therefore in the general interest of crime control. 532 U.S. 67 (2001).

Maclin T. , “Is Obtaining an Arrestee's DNA a Valid Special Needs Search under the Fourth Amendment? What Should (and Will) the Supreme Court Do?” Journal of Law, Medicine & Ethics 33, no. 1 (2005): 102–224. Report in Journal of Law, Medicine & Ethics 34, no. 2 (2006): 165–187. Compare Kaye D. H. , “Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees,” Journal of Law, Medicine & Ethics 34, no. 2 (2006): 188–198.

For a discussion of the Fourth Amendment and its application to a universal DNA database, see Peterson R. S. , “DNA Databases: When Fear goes too Far,” The American Criminal Law Review 37 (2000): 11219–1238.

State v. Olivas, 856 P.2d at 1094 (Wash. 1993) (Utter, J., concurring).

See generally Kevles D. , In the Name of Eugenics (Cambridge: Harvard University Press, 1998). See also Buck v. Bell, 274 U.S. 200 (1927).

The ACLU has been at the center of many of these disputes about the balance between privacy and security. See Walker S. , In Defense of American Liberties (New York: Oxford University Press, 1990): at 246–252, 357–359.

See Axelrad S. , supra note 1.

Id. For example, unauthorized procurement of DNA samples constitutes a Class D felony in the state of Connecticut.

Elrick M. S. , “Penalties Uneven for Data Misuse,” Detroit Free Press, August 1, 2001. See also Elrick M. L. , “Cops Tap Database to Harass, Intimidate,” Detroit Free Press, July 31, 2001.

See, for example, Cronan J. P. , “The Next Frontier of Law Enforcement: A Proposal for Complete DNA Databanks,” American Journal of Criminal Law 28 (2000): at 134.

“Violent Crime” includes offenses of murder, forcible rape, robbery and aggravated assault. FBI, Crime in the United States 2002, “Index of Crime,” Table 2, available at <http://www.fbi.gov/ucr/cius_02/html/web/offreported/02-table02.html> (last visited February 14, 2006).

“Property crime” includes offenses of burglary, larceny-theft, and motor vehicle theft.

McCollum M. , “Award to Boost DNA Crime Lab,” Denver Post, October 14, 2005.

Willing R. , “DNA Matches Win Few Convictions in Virginia,” USA Today, November 7, 2005. For a more detailed discussion of “hits” as metric of forensic DNA database effectiveness, see in this issue Bieber F. R. , “A Home Run or Just a Base Hit? Measuring and Improving the Efficacy of Forensic DNA Data Bank Programs,” Journal of Law, Medicine & Ethics 34 (2006): 222–233.

Already, we have seen at least one case of a wrongful conviction where the defendant had a strong alibi. Timothy Durham of Tulsa, Oklahoma, was convicted of raping an 11-year-old girl and sentenced to 3,000 years in prison, despite having produced eleven alibi witnesses who placed him in another state at the time of the crime. The prosecution's case rested almost exclusively on a DNA test that was later shown to have been misinterpreted. Durham served four years in prison before this error was uncovered.

See Rosen C. , “Liberty, Privacy and DNA Databases,” The New Atlantis 1 (2003): 37–52.

See Forensic Science Service, Casefiles, “Colin Pitchfork – First Murder Conviction on DNA Evidence also Clears The Prime Suspect,” available at <http://www.forensic.gov.uk/forensic_t/inside/news/list_casefiles.php?case=1> (last visited February 14, 2006).

See Willing R. , “Criminals Try to Outwit DNA,” USA Today, August 28, 2000.

See HBO Autopsy, “The Good Doctor,” available at <www.hbo.com/autopsy/episode/episode_7_the_good_doctor.html> (last visited February 14, 2006). See also The Minister of Citizenship and Immigration v. Steven John Schneeberger (2003) FC 970, Office of the Commissioner for Federal Judicial Affairs website, available at <http://reports.fja.gc.ca/fc/2004/pub/v1/2004fc33109.html> (last visited February 14, 2006).

The perceived infallibility of DNA testing has already resulted in a few known cases where innocent people have been wrongly convicted despite evidence of their innocence. In 1997, Timothy Durham was released from a prison in Oklahoma after he served four years for a rape he could not have committed. Despite having produced eleven alibi witnesses who placed Durham in another state at the time of the crime, he was convicted of raping an eleven-year-old girl and sentenced to 3,000 years in prison. The prosecution's case rested almost exclusively on a DNA test that turned out to have been erroneously analyzed. See Thompson W. C. Taroni F. and Aitken C. G. G. , “How the Probability of a False Positive Affects the Value of DNA Evidence,” Journal of Forensic Science 48, no. 1 (2003): 47–54, ASTM International website, available at <http://www.astm.org/cgi-bin/SoftCart.exe/JOURNALS/FORENSIC/PAGES/4244.htm?L+mystore+zsxy0773+1140652916> (last visited February 27, 2005). Similarly, Josiah Sutton spent nearly five years in jail for a rape he did not commit. His conviction rested almost entirely on a wrongly interpreted DNA test performed by the Houston Police Crime Laboratory. See Thompson W. C. , “Review of DNA Evidence in State of Texas v. Josiah Sutton” (District Court of Harris County, Cause No. 800450), February 6, 2003.

Baechtel F. S. , Proceedings of “The Human Genome Project, DNA, Science and the Law: The American Legal System's Response to Breakthroughs in Genetic Science,” DNA Unit, FBI, Washington, DC, October 19, 2001, printed in American University Law Review 51 (2002): 367–501, at 401.

National Institute of Justice, Report to the Attorney General on Delays in Forensic DNA Analysis, March 2003, available at <http://www.ojp.usdoj.gov/nij/pubs-sum/199425.htm> (last visited February 22, 2006).

The California Department of Justice received for processing approximately 295,000 DNA samples in 2005, as compared to 32,000 samples in 2004. The DNA sample backlog on December 31, 2005 was approximately 264,000 samples. Email communication with Kleinberg L. , California Department of Justice, February 24, 2006. Prior to the enactment of Proposition 69, the California Department of Justice reported a backlog of 60,000–80,000 samples. L. Gima, Bureau Chief, California Department of Justice Bureau of Forensic Services, Statement at a Joint Informational Hearing on Proposition 69 before the California State Senate Public Safety and Assembly Public Safety Committees, September 23, 2004.

National Institute of Justice, Report to the Attorney General on Delays in Forensic DNA Analysis, March 2003, available at <http://www.ojp.usdoj.gov/nij/pubs-sum/199425.htm> (last visited February 22, 2006).

Federal Bureau of Investigation, Crime in the United States: 2002, “Estimated Arrests,” Table 29, available at <http://www.fbi.gov/ucr/cius_02/html/web/arrested/04-table29.html> (last visited February 14, 2006).

As of September 2005, the National DNA Index System contained 2,763,191 offender profiles. FBI's CODIS website, available at <http://www.fbi.gov/hq/lab/codis/clickmap.htm> (last visited February 14, 2006).

FBI, Crime in the United States 2002, “Arrests,” Table 69, available at <http://www.fbi.gov/ucr/cius_02/html/web/arrested/04-table69.html> (last visited February 14, 2006).

Email communication with Kleinberg L. , California Department of Justice, February 24, 2006.

These increases are calculated based on the number of samples the California Department of Justice received for processing, and not how many were actually processed.

The NIJ Report to the Attorney General on Delays in Forensic DNA Analysis identified duplicate collections as one of several issues that contribute to wastes of time and expense. See NIJ Report supra, note 36, at 4.

See ACLU Press Release, “ACLU of Massachusetts Warns that Random DNA Dragnets Hinder, Not Help, Crime Investigations,” April 15, 2005, available at <http://www.aclu.org//privacy/medical/15323prs20050415.html> (last visited February 14, 2006).

The severe problems associated with the Houston Police Department's crime lab that resulted in the closing of the laboratory in 2003 and a review of hundreds of cases involving DNA evidence have been directly attributed to inadequate resources, ineffective management, and a lack of adequate quality control and quality assurance. See Bromwich M. R. , Fourth Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room (January 4, 2006), Office of the Independent investigator for the Houston Police Department Crime Laboratory and Property Room, available at <http://www.hpdlabinvestigation.org/reports/060104report.pdf> (last visited February 14, 2006).

See Simoncelli T. and Steinhardt B. , “California's Proposition 69: A Dangerous Precedent for Criminal DNA Databases,” Journal of Law, Medicine & Ethics 33, no. 2 (2005): 279–293, at 286–288. Reprinted in Journal of Law, Medicine & Ethics 34, no. 2 (2006): 199–213. For a comprehensive discussion of the fallibility of DNA testing see Thompson W. C. Ford S. Doom T. Raymer M. and Krane D. E. , “Evaluating Forensic DNA Evidence: Essential Elements of a Competent Defense Review,” Champion Magazine 24 (2003): 17–25.

“Ashcroft Seeks $1 Billion for DNA Crime Tests,” Associated Press, March 11, 2003. Available at <http://www.cnn.com/2003/LAW/03/11/ashcroft.dna.ap/index.html> (last visited February 14, 2006).

See Kaye D. and Smith M. E. , “DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage,” Wisconsin Law Review (2003): 413–459, at 438.

The U.S. Census estimated that out of a total U.S. population of 282,909,885 persons, 33,533,945 were foreign-born. U.S. Census Bureau, Foreign-Born Population of the United States American Community Survey – 2003, Table 1.1a, “Population by Sex, Age, and U.S. Citizenship Status: 2003,” available through <http://www.census.gov/population/www/socdemo/foreign/acst2.html#cit> (last visited February 14, 2006).

See Kaye D. and Smith M. E. , supra note 49, at 438.

Id., at 417–423.

Duster T. , “Selective Arrests, an Ever-Expanding DNA Forensic Database, and the Specter of an Early-Twenty-First-Century Equivalent of Phrenology,” in Lazer D. , ed., DNA and the Criminal Justice System (Cambridge: MIT Press, 2004): 315–334.

DNA dragnets have also proven ineffective. A recent survey demonstrated that only one of nineteen dragnets conducted in the U.S. resulted in identification of a suspect. See Police DNA “Sweeps” Extremely Unproductive: A National Survey of Police DNA “Sweeps,” A report by the Police Professionalism Initiative, Department of Criminal Justice, University of Nebraska at Omaha, Coordinated by Samuel Walker, September 2004.