Genetic Justice

by Sheldon Krimsky

  In early 1987 the chief inspector at Leicestershire attempted something that neither his department nor any other police department previously had undertaken. The chief inspector initiated a program in which police would obtain voluntary blood and saliva samples from all unalibied male residents between the ages of 17 and 34 in the villages of Narborough (where the murders had taken place) and two nearby villages, Littlethorpe and Enderby. It was estimated that as many as 4,000 men gave their blood and saliva samples to police.

  Months passed, but no DNA matches occurred. By the fall of 1987 the police were still collecting blood samples. Lab technicians continued to process a mounting backlog of DNA samples. Ultimately the case did not turn on a DNA match at all. Instead, a woman overheard an individual talking to a friend at a pub about how he had paid a coworker to provide a DNA sample under his name. She reported this information to the police, who followed up with the individual, Colin Pitchfork, who had a police record as a “sexual flasher.” When the inspectors confronted Pitchfork with his scheme to substitute someone else’s blood for his own, he confessed to both crimes. The DNA dragnet, though not successful, strictly speaking, in this particular case, had come of age.

  The largest dragnet on record took place in the northern town of Cloppenburg, Germany, in 1998. It was reported that as many as 12,000 of the 18,000 men between the ages of 18 and 30 in Cloppenburg and 35 surrounding villages had voluntarily taken part in the saliva testing.8 Police, hunting for a serial rapist who had raped and murdered an 11-year-old girl, indicated that they were prepared to collect DNA from up to 100,000 men to catch the perpetrator. The first group of 3,108 men aged between 25 and 45 lived near the scene of the rapes. Science magazine reported that another group of over 3,000 men was told to appear at the police station to provide samples.9 The largest DNA dragnet to date in the United States took place in Miami in 1994. Police sampled 2,300 men in connection with a search for a serial killer.10 The largest DNA collection in the United Kingdom consisted of a total of 4,500 local men sampled after a body was found in a quarry in Chipping Sodbury, England, in 1996.11 The United Kingdom has carried out the highest number of dragnets of any single country; between April 1995 and January 2005 there were 292 DNA sweeps across England and Wales.

  Civil Liberties Concerns

  Mirroring the experience of the British police, a number of cities and towns in the United States, including ones in Louisiana, Florida, Virginia, Massachusetts, Illinois, and Michigan, have undertaken DNA dragnets. The imposition of these dragnets can conflict with the privacy rights of individuals and raises a number of additional concerns. The following are some of the core ethical and legal issues pertaining to DNA dragnets.

  Dragnets are conducted without a warrant, probable cause, or individual suspicion. Should there be protections against coercion to obtain DNA samples? The Fourth Amendment of the U.S. Constitution protects individuals against unwarranted searches and seizure of property. When police take a nonvoluntary DNA sample from a suspect, it is considered a “search” and therefore generally requires a court warrant (see chapter 14).

  In comparison, taking a fingerprint does not rise to the same level of privacy invasion and judicial involvement. Courts have generally ruled that law-enforcement officials are required to demonstrate that they have probable cause or that the fingerprint will establish the person’s connection to an offense, but a distinction is made between acquiring fingerprints from a person to determine guilt or innocence and gathering fingerprints for identification purposes. Increasingly, states allow police to take fingerprints routinely even when a probable cause or suspicion is not established.

  According to Aaron Chapin, “DNA dragnets inherently rely on suspicionless searches. Rarely do police have even reasonable suspicion, let alone probable cause in testing DNA in mass sweeps.”12 Other sorts of “sweeps” have been upheld by the courts, although probable cause is usually required. For example, the courts have upheld the right of police to stop cars on a highway in search of individuals involved in a robbery in cases where a description of the perpetrators is available. In addition, if the driver of a car has committed a vehicular infraction, the police are given authority to search the automobile for other unrelated infractions. Adam M. Gershowitz, writing in the UCLA Law Review, describes the incident-to-arrest doctrine:

  Imagine that Defendant Dan is stopped by the police for driving through a stop sign. The officer thinks that Dan looks suspicious, but has no probable cause to believe Dan has done anything illegal, other than driving recklessly. Because running a stop sign is an arrestable offense and the officer is suspicious that Dan might be involved in more serious criminal activity, the officer arrests Dan for the traffic violation.

  Under the search incident to arrest doctrine, officers are entitled to search the body of the arrestee to ensure that he does not have weapons and to prevent him from destroying evidence. The search incident to arrest is automatic and allows officers to open containers found on the person, even when there is no probable cause to believe anything illegal is inside.13

  Police have been able to conduct DNA dragnets because the provision of samples in a dragnet is considered “voluntary.” There is a legal precedent for rendering constitutional under the Fourth Amendment a person’s voluntary consent in submitting evidence. The police may request that an individual against whom law enforcement has neither particularized suspicion nor probable cause submit a biological sample containing his or her DNA in a dragnet, so long as that individual is properly informed about the scope and the purpose of the request. When DNA is given voluntarily, it is considered a consent search. Consent by coercion, however subtle, is not voluntary consent. The Fourth Amendment of the Constitution was designed to protect people from a “police state” where a government becomes “powercentric” and personal privacy can be compromised at whim in a police investigation. Thus many of the core legal and ethical issues surrounding DNA dragnets hinge on the question whether the dragnet is truly voluntary.

  Can DNA dragnets be truly consensual, or are they inherently coercive? A policeman who comes to someone’s home and asks a person (face-to-face) for a voluntary DNA sample has a more coercive effect and is more likely to draw a sample than if the request were made on local television or placed in a newspaper. The uniform worn and words used by the police soliciting the DNA can also affect how coercive it feels when one is asked to provide a sample. A policeman in uniform coming to a person’s door to collect donations for a “police benevolent association” feels more coercive than if the request were made by mail.

  In pursuit of a serial rapist-murderer, police in Baton Rouge, Louisiana, undertook a DNA dragnet in 2002. They targeted men in southern Louisiana and asked them to provide a DNA sample in order to exclude themselves as suspects. Fifteen men, including Shannon Kohler, refused to give police a buccal swab (cheek saliva).14 Kohler claimed that police used coercive methods to get a sample from him, which allegedly included issuing threats to obtain a court warrant and to give his name to the press. The Baton Rouge Police Department obtained a court seizure warrant in November 2002 to force Kohler to submit a DNA sample. Kohler was subsequently cleared of the crimes.

  Kohler filed suit against the Baton Rouge Police arguing that the seizure warrant lacked probable cause and was an invasion of his privacy. After he failed to obtain relief from the district court, on November 21, 2006, the Fifth Circuit Court of Appeals reversed the lower court and ruled that the DNA search warrant for Kohler lacked probable cause. To justify the warrant, police argued that probable cause was based on (1) two anonymous tips and (2) the fact that Kohler’s physical characteristics were consistent with certain aspects of the FBI profile of the perpetrator. The majority of the Fifth Circuit judges wrote:

  These two traits are so generalized in nature that hundreds, if not thousands, of men in the Baton Rouge area could have possessed them, and they are, therefore, insufficient to warrant the belief that Kohler was the serial killer. . . . We c
onclude that the District Court erred in finding that the seizure warrant was supported by probable cause.15

  In a well-publicized DNA dragnet in Truro, Massachusetts, coercion was evident in the fact that “both the police and the District Attorney Michael O’Keefe have said that men who refuse to be tested will be considered suspects, even though there had been no evidence linking them to the murder.”16

  When police investigators undertook a DNA sweep in 1999–2000 in Chicago, they were carefully advised against using intimidating tactics in communicating with potential donors of interest. The Chicago police used a consent form, which stated that the donors of DNA agreed that their samples “may be used for this investigation or any other investigation or any other legitimate law enforcement purpose.”17 Those whom the police targeted for a DNA sample were also told that they had the right to refuse the request. Thus it appears that the people approached by the police were sufficiently well informed about the use of their DNA. The police targeted a specific group of men to provide a DNA sample or to make an appointment at their own convenience. They were not told that they had to accompany the officer to the police station. Despite the apparent precautions taken by the police, there remains the question whether their approach was coercive. Jeffrey Grand notes, “In the context of the DNA dragnet, whether a donor is asked to accompany police to the station or is simply subject to a brief detention for field-testing, he still may reasonably feel that he is not free to terminate his encounter with the police.”18

  Do consent procedures currently used in DNA dragnets provide sufficient information to individuals to allow them to make a reasonable decision about whether to provide their DNA? Procedures for obtaining consent for DNA collection have varied considerably from one DNA dragnet to the next. Some have relied on oral consent, others on written consent. In some cases no consent was obtained at all.

  Do dragnet consent procedures inform individuals of the potential uses of their DNA? Some police departments present a potential contributor with a written consent form that states how their DNA will be used. The consent form might also describe whether the source of the DNA (cheek swab or blood sample) will be destroyed after the DNA profile is processed. In the absence of state laws to the contrary, some police departments have held on to the voluntarily provided DNA samples and have maintained the profiles in separate DNA databases when the profiles do not qualify to be entered into the state or federal CODIS data bank. States differ on whether the consent forms for voluntary DNA samples stipulate that the DNA profile shall be used exclusively in a specific investigation and for nothing else and whether the sample is removed from the database when the case is closed.

  Should police be permitted to retain voluntarily submitted samples beyond the close of the investigation for which they were collected? Should police be allowed to access those samples and profiles for use in future investigations? Law-enforcement personnel have argued that they need to retain samples as evidence for situations in which a case is reopened in the future. But DNA dragnets are crime specific and are not meant to be established as a general data bank for “suspicionless suspects” in the event that someone might commit a crime at some time in the future. DNA databases created for use in future investigations have been created under the CODIS system and are bound by state and federal laws. The federal government does not allow the profiles obtained from a dragnet to be placed in CODIS. The retention of DNA samples outside the scope of the data-bank statutes raises serious concerns.

  Florida law allows the state DNA database to hold volunteer samples, as well as those taken from those convicted of a crime. In a Miami, Florida, dragnet, where more than 120 Hispanic males were asked to submit DNA samples to exclude them as a suspect in a serial rape investigation, samples from the volunteers were not destroyed when police found the rapist.19 It has been reported that by 2003 Florida’s DNA database contained more than 5,800 voluntary samples.20

  On Christmas Day 1995, 18-year-old Louise Smith was murdered in Yate, a town outside Bristol in the United Kingdom, on her way home from a nightclub. Police visited 10,500 homes, interviewed more than 14,800 people, and carried out DNA screening of 4,500 male volunteers without finding a suspect.21

  David Frost, a 22-year-old who was staying with his parents at Yate during the Christmas holiday, was asked by police and agreed to give a DNA sample but failed to show up for the test. In August 1996, after Frost reported to police that he was leaving for South Africa, he became a prime suspect. The U.K. police arranged with South African authorities to obtain a DNA test from Frost, which matched the DNA taken from Smith’s body.22 The police reported that the likelihood of the match coming from another unrelated male was 1 in 35 million. On February 5, 1999, Frost pleaded guilty to the murder of Louise Smith. What remains of the 4,500 DNA samples collected by the police?

  Should police be able to tell people that the only way they can clear themselves as a suspect is to provide a DNA sample? Is there language that could be used in a truly voluntary DNA dragnet that would not be coercive? According to Sepideh Esmaili, writing in the Kent Law Review, courts consider both objective and subjective factors in deciding whether duress was used by police in requesting a person’s DNA sample. Threatening individuals with a court order or threatening to drag their names through the media if they refuse to submit a DNA sample is a form of coercion and voids any consent.23 Some constitutional scholars argue that the police cannot conduct a noncoercive dragnet of people’s DNA, and thus no dragnet should be conducted without a court warrant.24

  In the United Kingdom, where there is no comparable constitutional guarantee of privacy, as there is in the United States, mandatory DNA profiling is becoming increasingly commonplace. A serial gerontophile rapist known as the Minstead Rapist committed his first offense in 1992 in the South East London area of England. In March 2004 Operation Minstead detectives hand-delivered letters to hundreds of black men in South London, asking that they provide a DNA sample for elimination purposes. Volunteers were told that their DNA sample would be destroyed as soon as police confirmed that it failed to match the rapist’s DNA. On the basis of a visual description, 1,000 black men in South London were DNA profiled during a hunt for the serial rapist. However, 125 men initially refused to provide a sample, believing that it was discriminatory and breached their human rights. Police brought pressure to bear on those who refused, explaining that their behavior could be construed as suspicious. They also received intimidating letters from the police. Five were arrested, their DNA was taken, and then they were cleared.

  Notwithstanding America’s civil liberties tradition, similar coercive methods have been reported in collecting DNA samples. For example, Mark Rothstein and Meghan Talbott have noted: “Although consent to participate [in a dragnet] is normally voluntary, such requests from law enforcement officers are inherently coercive. . . . In Oklahoma in 2001, people who refused to consent to DNA testing were served with search warrants and treated as suspects, thereby suffering public humiliation.”25 In Louisiana, police requested DNA samples from nearly 1,000 men in the search for a serial killer. Those who refused to provide a sample were threatened that a court order would be issued to get a swab of their saliva.26 When police targeted young African American males for voluntary DNA samples to solve a murder case many refused to be tested. By their mere refusal, they became suspects (see box 3.1).

  BOX 3.1 Refusal to “Voluntarily” Submit DNA in a Dragnet

  In 1994 police in Ann Arbor, Michigan, conducted an unsuccessful dragnet that included data-retention problems and racial profiling. Police asked more than 600 African American men to submit DNA samples during the investigation of a serial rapist. Detectives decided to target African American men on the basis of a vague description that the perpetrator of the underlying crime was black. Approximately 160 men “voluntarily” submitted DNA samples and were excluded from suspicion. More than 400 men refused and were not tested. The police chief in charge of the dragnet said that anyone who d
id not volunteer DNA became a suspect. The perpetrator of the crimes, who was not among those initially tested in the DNA sweep, was eventually caught while attacking a fourth woman. A class-action suit was filed by some of the 160 innocent men who “voluntarily” submitted samples in the search. One of the litigants alleges that he lost his job after detectives informed his coworkers that they wanted to interview him. Police had sought to retain the DNA samples for 30 years but agreed to destroy or return them and paid monetary damages to plaintiffs in the suit.

  Source: Electronic Privacy Information Center, “Kohler v. Englade: The Unsuccessful Use of DNA Dragnets to Fight Crime,” http://www.epic.org/privacy/kohler (accessed October 28, 2007).

  Refusing to Provide a DNA Sample Is Not an Admission of Guilt

  It is sometimes assumed that for voluntary DNA dragnets the only persons who refuse to comply are those who have something to hide regarding the investigation in question. However, this is not borne out from the experience police have had with such DNA sweeps. Many factors other than protecting one’s guilt may explain noncompliance with voluntary DNA submission.