The Commonwealth of Virginia was the first state in the United States to develop a forensic DNA data bank in 1989. By the close of the next decade all 50 states had statutes authorizing the creation of DNA data banks. Initially, as with the federal data bank, state data banks included samples from felony offenders with allegedly high recidivism rates, such as sex offenders and violent felons. But state legislators, riding the wave of DNA-philia and taking advantage of the silent encouragement offered by changes in federal law, began to expand the criteria for inclusion soon after their database systems were up and running. Some justified the expansion by arguing that persons who commit lesser crimes have high recidivist rates and graduate to more violent offenses.
Table 2.2 shows how the qualifying offenses for which DNA can be collected and retained vary among the states. As of June 2009, 47 states had authorized DNA collection from all felons (all states except for Idaho, Nebraska, and New Hampshire); 37 from at least some categories of individuals who have been convicted of a misdemeanor; 4 from numerous non-sex-crime misdemeanors; and 32 from juvenile offenders. Included under “misdemeanors” in many states are voyeurism (Florida), failure to register as a convicted person (Nevada), many types of sexual offenses (Arkansas, Illinois), and controlled-substance offenses (New York, Nevada, and Kansas). According to one survey, burglary by itself was a justification for DNA collection in 40 states, and drug offenses authorize DNA collection in 28.26
Juveniles in America have increasingly become part of the DNA-collection system. By June 2009, 32 states had laws permitting police to obtain biological specimens from juveniles for DNA profiles, including those who had committed nonviolent crimes. Some legal scholars argue that juveniles should be treated differently than adults with respect to DNA collection. Juveniles are often protected by sealing their criminal records. There is a greater emphasis on rehabilitation and less on punishment for youthful offenders. Steven Messner writes in the Journal of Juvenile Law: “A national criminal DNA database, which does not distinguish between adult and juvenile, could undermine the purpose of the separate juvenile justice system,” for example, if the DNA profile were maintained after the juvenile records were sealed. “In order to preserve the purposes and integrity of the juvenile justice system, additional protections need to be afforded juveniles whose DNA profiles are obtained. . . . A juvenile’s DNA profile should be expunged from the database if the juvenile’s record is sealed.”27
TABLE 2.2 State Variations in DNA-Collection Statutes
In 2003 only 4 states took DNA from arrestees whether or not they were convicted of a crime. Six years later an additional 17 states had passed legislation that authorized the collection of DNA from arrestees. Some states have authorized collection of DNA from all felons, while others have authorized more limited arrestee collection, such as from individuals arrested for murder or rape. One of these, Minnesota’s statute, was declared unconstitutional by the Minnesota Court of Appeals (see table 2.3). Although the FBI continues to refer to its “Convicted Offender Index,” this is no longer accurate, since this index necessarily includes individuals who have not been convicted of crimes.
TABLE 2.3 State Legislation Expanding DNA Collection to Arrestees, 2001–2008
Virginia was the first state to authorize DNA collection from arrestees. In 2002 the Virginia state legislature enacted an amendment to its state data bank law allowing the seizure and analysis of DNA samples from “every person arrested for the commission of a violent felony.” Arrestees are not necessarily charged with or convicted of a crime. False arrests or charges dropped are commonplace in police work, sometimes because of lack of evidence, because of mistaken identities, or because the police simply get it wrong. For example, arrests are made during the tumult of mass demonstrations because people find themselves in the middle of a rowdy crowd or in the sight line of overzealous police.
Louisiana was also among the first states to broaden DNA collection to arrestees. In 2003 Louisiana enacted legislation that expanded its DNA data-bank criteria to include simple assault, stalking, prostitution, and Peeping Tom offenses. Under this law juveniles arrested for these offenses, as well as adults soliciting prostitution, are subject to having their DNA included in the state data bank.
In 2004 California became the fourth state to authorize DNA collection from arrestees through passage of Proposition 69, also known as the DNA Fingerprint, Unsolved Crime, and Innocence Protection Act. This ballot proposition mandated the collection of DNA samples from adults and juveniles convicted of felonies, sex offenses, and arson. In addition, it set January 2009 as the date for requiring a DNA sample from every adult arrested for or charged with a felony. At the time of its passage, California’s DNA law contained the most sweeping DNA collection requirements in the country. Its DNA database is currently the third largest in the world, and, with more than 330,000 individuals arrested for a felony offense every year in California,28 it promises to continue to retain that position so long as the arrestee provisions remain in effect. In October 2009 the ACLU of Northern California filed a class-action lawsuit, challenging the arrestee provisions of the law.29 The case is ongoing at the time of this writing.
As of June 2009, 21 states had provisions for collecting DNA from some categories of arrestees. Eleven states followed California’s lead by enacting provisions for taking DNA from all felony arrestees, while the other 10 states adopted a more limited approach (for example, allowing arrestee DNA collection only for those arrested for murder and sex crimes, and in some cases burglary).
The extraordinary expansion of DNA collection has resulted in a near doubling of the number of so-called offender profiles in CODIS every two years, as can be seen in figure 2.2. The impetus for expanding the scope of contributors to DNA data banks is coming almost exclusively from law enforcement. The assumption has been that the larger the data banks, the more crimes will be solved. Rarely, however, is a crime solved by DNA alone. At any crime scene there may be multiple DNA fragments left on the scene by passersby. Also, the fact that some suspect’s DNA was not found at a crime scene does not mean that the suspect was not at the scene or did not commit the crime. Nevertheless, the successes of some highly publicized coldhit cases of DNA collected from a crime scene have inspired lawmakers to broaden the inclusion criteria for taking DNA samples.
Not all attempts to expand DNA databases have been successful, especially in the highly contested arena of arrestee testing. In 2007 both houses of the South Carolina legislature passed a bill requiring that law-enforcement authorities collect DNA samples from anyone arrested or indicted for any crime that is punishable by a prison sentence of five years or more.30 Governor Mark Sanford vetoed the bill on June 18, 2007. In his veto Governor Sanford argued that this bill to expand the state’s DNA data bank was an overreach by government and an erosion of personal privacy. In explaining his veto, Sanford wrote:31
FIGURE 2.2. Growth of CODIS Offender Profiles, 2000–2009 (in millions). Source: Authors.
Though American society values personal liberties, we are the first to recognize that persons convicted of a crime must give up some of those liberties, including the protection against search and seizure. By limiting DNA collection to those who have been convicted of a crime, we ensure that no DNA is collected unless that person has been granted due process of rights and has experienced a full vetting by the judicial system. If DNA collection were expanded to include custodial arrest for felonies, why stop there? Law enforcement could inevitably stop other crimes as well with an even further expanded database. We think the clear divide created with conviction has served us well because one of the central tenets of American law is that one is presumed innocent until proven guilty.
Sanford emphasized that DNA samples contain sensitive personal information such as disease predisposition, physical attributes, ancestry, and familial relationships. Only when there is a court order or conviction, he argued, should people be required to submit their DNA to a state database. Moreover, b
y weakening the standard under which DNA is collected, the state would be crossing the threshold from using personal information for criminal investigation to surveillance of its citizenry.
There have also been voluntary submissions of DNA to state data banks. These have come about through law-enforcement dragnets. When DNA left at a scene of a violent crime does not match any profile in the state or federal data bank, law-enforcement officers have on occasion asked local residents to submit their DNA voluntarily to eliminate themselves as suspects. Their DNA can remain in the data bank unless the state has a provision for removal of the profile and the contributors avail themselves of that right.
In what surely will be seen as an ironic state of affairs, on the one hand, states are expanding their DNA collections by broadening criteria to include innocent people; on the other hand, they are destroying crime-scene DNA evidence of those currently serving prison sentences. According to a report in USA Today, half the states do not have requirements for retaining crime-scene DNA evidence that either played a role in convicting or could play a role in exonerating an incarcerated felon.32 States incur heavy costs in laboratory sequencing and in storage facilities for preserving biological samples when they expand their databases to include arrestees. The expansion of the databases is purportedly to catch future criminals. Law enforcement is dubious about the social benefits over costs for retaining crime-scene DNA for as long as a felon is in prison. The focus is on resources for obtaining new convictions rather than on protecting and preserving evidence that could be used to exonerate falsely convicted individuals. Bucking this trend is the state of Virginia. In the summer of 2008 the Virginia Forensic Science Board planned to send out letters to about 1,000 felons convicted in the 1970s and 1980s before DNA evidence was used in criminal cases to notify them that physical evidence pertaining to their case existed. On November 1, 556 letters went out, and by December another 528 were mailed. A little over 200 of those on the notification list were deceased. By late 2009 there was no confirmation that 545 of those individuals had been notified.33 The letters inform the felons that biological evidence in their cases exists and that they qualify to have the DNA evidence tested. It was reported in 2008 that there were eight cases in which the defendant’s DNA profile did not match the profile of the crime-scene samples.34 While locating individuals and fulfilling postconviction testing are expected to continue for years, there has thus far been one posthumous exoneration, that of Curtis Jasper Moore, who was convicted on rape-murder charges.35
The Internet, consisting of tens of millions of personal computers linked seamlessly through thousands of transfer stations, has revolutionized human communication. Nothing since the creation of an international postal system has afforded so many individuals the power and opportunity to share information with people in distant places. Computer networks also provide new instruments for government bureaucracies whose mission is to maintain public records and keep public order. For both inter- and intragovernmental law-enforcement agencies, digital information in the form of photos and data has created new methods of surveillance. Centralized digital DNA profiles that provide a highly reliable means of establishing personal identification have made forensic DNA the most talked-about tool of forensic investigation since the development of the thumbprint more than 100 years ago.
The network of forensic DNA data banks is fast maturing in the modern industrial state, while debates continue over whether innocent people and juveniles or those convicted of minor offenses should be forced to have their personal identity held in a centralized computer that is linked to a biological specimen stored in some law-enforcement outpost. Efforts are currently under way to link the forensic DNA data banks of nation-states with Interpol, the international police agency. Currently there are some rules in place in the United States about what information can be drawn from biological specimens for entry into criminal justice data banks, and what linkages can be made with other national data banks such as Social Security, Medicare, and the Internal Revenue Service. Nonetheless, the possibilities for abuse in combining criminal justice data banks with private databases, such as health records, credit accounts, books that people borrow from public libraries, phone calls, or shopping profiles held by national chains, are daunting. Whether for commercial interests or bureaucratic goals, there is a tendency for centralized digital information to expand and for cross talk to take place among databases. If personal privacy is to be protected as a constitutional right, then the current trend of rapid DNA database expansion will have to be reexamined in terms of the long-term and systemic trends toward greater governmental surveillance of law-abiding citizens.
Chapter 3
Community DNA Dragnets
The decision was made, and announced the day after New Year’s 1987, that the murder inquiry was about to embark on a “revolutionary step” in the hunt for the killer of Lynda Mann and Dawn Ashworth. All unalibied male residents in the villages between the ages of seventeen and thirty-four years would be asked to submit blood and saliva samples voluntarily in order to “eliminate them” as subjects in the footpath murders.
—Joseph Wambaugh1
Floyd Wagster Jr., an African American living in Baton Rouge, Louisiana, in 2002, was on probation for marijuana possession. The Baton Rouge police telephoned Wagster in August 2002 to inform him that he was not in trouble but that they wanted him to come to the station for questioning. Wagster told the deputy that he wished to talk to his lawyer before going to the police station. About an hour later the deputy called Wagster again and inquired if he had spoken to his lawyer. Wagster responded that he had not yet gotten a call back from his attorney. He then left his home to run some errands. No more than half a mile from his home Wagster was stopped by a local deputy. From his account, he was ordered to exit his van and was handcuffed, taken to the station house, interrogated, and asked to provide a DNA sample.2 He gave the police a sample under what he described as conditions of duress. According to documents Wagster filed in court, once he was at the station, Baton Rouge police denied his repeated requests to speak to an attorney and threatened to take him to drug court and jail unless he provided them with a DNA sample.3
Police selected Wagster as part of a manhunt to find a serial killer who they believed had struck between 2001 and 2002 in the Baton Rouge area. Without probable cause, court warrants, or reasonable suspicion, police on the Baton Rouge Serial Killer Task Force requested DNA samples from 600 men. On July 31, 2004, Wagster filed suit in the U.S. District Court for the Middle District of Louisiana in Baton Rouge on behalf of the men who, while not required under state law, allegedly were coerced to give DNA samples. The judge threw out the charges Wagster filed against the police and the attorney general of Louisiana on the technicality that the complaint was filed too late.4
Evolution of DNA Dragnets
The police tactic used in Baton Rouge of rounding up large numbers of suspicionless individuals for a sample of their DNA is referred to as a DNA dragnet. The term “dragnet” entered the American popular lexicon in the 1950s as the title of a popular television police show that starred an imperturbable, street-smart detective named Joe Friday (played by Jack Webb) whose lack of emotion and devotion to facts were his calling cards. Law enforcement’s use of the term “dragnet” is derived more closely from commercial fishing, where nets are dragged along the bottom of lakes and rivers to capture schools of fish. Like a shrimp trawl, long abhorred by some environmentalists for its high levels of bycatch (where many other sea creatures are unintentionally caught in the nets), law-enforcement dragnets are often employed with a low degree of specificity. Although a dictionary defines a police dragnet as an organized system or network for gathering or catching people wanted by the authorities,5 in practice, dragnets are usually launched in search of a suspect. By soliciting DNA from scores of individuals fitting a loose physical description (e.g., “tall, black male”), if any, the dragnet seeks to generate a suspect when there is none. A dragnet is usually
geographically focused, although the concept of a “national dragnet” is also used. The term “DNA sweep” is synonymous with “DNA dragnet.” Samuel Walker characterizes a DNA sweep as “a situation where the police ask a number of individuals to give voluntary DNA samples in an effort to identify the perpetrator of a crime or a series of crimes.”6
In recent years the DNA dragnet has been increasingly employed as a method for investigating crimes. When a crime scene has telltale forensic DNA evidence (blood, semen, hair follicles, and/or saliva) that is suspected to have been left by the perpetrator, and when the police do not have any viable leads on suspects, the DNA dragnet seeks to obtain biological samples from large numbers of people (sometimes the entire adult male or female population of a town) who either live or work in the vicinity of the crime scene and could conceivably have been at the location.
The first documented DNA dragnet was undertaken by police in Leicestershire Township in the United Kingdom, where they were investigating a double rape-murder of two 15-year-old girls. The story is fully documented in Joseph Wambaugh’s 1989 book The Blooding,7 a “nonfiction novel” that falls in the literary genre of Truman Capote’s In Cold Blood.
The police investigation of the double rape-murder came to a dead end until one inspector heard about a scientific breakthrough in DNA identification. Alec Jeffreys, a geneticist from the University of Leicester, developed a method in 1983 that used the sequences of certain variable segments of chromosomal DNA as a means of establishing personal identity (see chapter 1). The first success of his technique came when it proved that a French teenager was the father of an English divorcée’s child. Word of Jeffreys’s success had gotten around to an inspector at the Leicestershire Constabulary, who had a suspect for one of the two teenage rape-murders in Narborough. He asked Jeffreys to compare the DNA left in both the crimes with that of the suspect to determine whether their suspect was responsible for the double murder. Jeffreys’s technique showed that the DNA of the police’s suspect did not match that left at the crime scene, but he did determine that the DNA at both crime scenes came from the same person.
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