Genetic Justice

by Sheldon Krimsky

  Individuals who are approached for a DNA sample might be afraid that police will hold on to the sample even if the profile does not match the crime-scene DNA. They might feel stigmatized in knowing that their DNA profile and biological sample remain in a local or state database. They might feel generally that requesting their DNA is an unnecessary intrusion on the part of the government. Others might refuse to give a DNA sample because they believe that police might use their profile to investigate other crimes. In other words, their DNA will be subject to suspicionless searches without a time limit. Cases such as this have actually occurred. Police have on occasion excluded a suspect in one case and used his voluntary DNA sample to trawl the victim database for a cold hit. From the police perspective, the more DNA samples, the more cases will be solved. But there are also instances in which the match of DNA from secondary searches of nonsuspect samples yielded an exact match but did not solve the crime. Rather, the match from one rape case was from consensual sex of the cold-hit suspect with the victim before the rape.27

  Potential voluntary DNA donors might also refuse to participate in a voluntary dragnet because they understand that mistakes in DNA analysis can and have occurred and that their DNA profile might result in a false positive match with crime-scene evidence (see chapter 16). Finally, although people might be convinced that their DNA evidence would not match the crime-scene DNA, while trusting the analytic laboratories, they may be concerned that the profile will be used in a familial search (see chapter 4).

  In Charlottesville, Virginia, police asked 197 African American men to submit to cheek swabs as part of a search for a serial rapist who struck six times between 1997 and 2003. Police chose the subjects on the basis of their resemblance to a composite sketch of the perpetrator or because they behaved “strangely” when approached about the case. About 5 percent (10 men) of the 197 men from whom DNA samples were requested refused to comply.28 One of these men was Steven Turner, 27, a University of Virginia graduate student. Turner was stopped by police in August 2003 while he was riding his bike in a neighborhood near the university. He allegedly fit the police profile of a 6-foot black man in his early twenties with an athletic build and “unnaturally white, bulging eyes.”29 Turner refused to give police a cheek swab for his DNA profile, even when two officers showed up at his home. Turner had a sense that his rights were being violated because this was a suspicionless search without a court warrant. He felt that he was being coerced to comply and that this practice was a form of racial profiling based on a vague description of the suspect. In response to significant opposition from the African American community, the police chief placed a hold on testing. Ultimately, the perpetrator was caught. He was African American, but he was neither in the criminal database nor in the group chosen for DNA swabbing.

  Special-Needs Exception to Privacy

  Is it possible that DNA dragnets might become mandatory and a standard part of police investigation? Is it possible that law enforcement will move away from any consent at all in DNA searches? Could the legislature or the courts allow mandatory DNA sweeps without warrants?

  Courts have traditionally protected individuals from searches when there is neither probable cause nor suspicion. There is a broad consensus among legal scholars that without an act of Congress “the general interest in crime control served by DNA dragnets is not strong enough to outweigh the even stronger interest of free persons to be free from forced DNA testing and to keep their genetic information private.”30 One can only surmise whether the courts will issue DNA warrants when the prime suspects in a crime with DNA evidence consist of a dozen men, with no evidence other than their physical proximity to the crime scene.

  On the other hand, searches in airports have become commonplace and do not require court warrants. Courts have referred to airport searches as an exception to the Fourth Amendment through a legal distinction called the “special-needs exception” where the government’s need in conducting the search is considered a “special need, beyond the normal needs of law enforcement.” Nations throughout the world have an overriding interest to protect their citizenry in air travel from terrorist activity or other human threats. Thus U.S. courts have developed this special need of airport searches as a justified exception to the Fourth Amendment’s protection from unreasonable searches, as long as the searches are not designed for general criminal investigation. It is possible that DNA dragnets could be employed in these sorts of situations, especially with advances in DNA technology that might allow for rapid DNA typing (see chapter 5).

  It is possible that either the legislature or the courts could approve mandatory DNA searches without warrants. However, it seems unlikely that mandatory DNA searches would hold up under a constitutional challenge. Jeffrey Grand argues that if

  the sole purpose of the DNA dragnet is that of criminal apprehension . . . the dragnet procedure could not be considered a search “beyond the needs of law enforcement.” Thus, the “special needs” exception is arguably inapplicable to the DNA dragnet. Thus, unless the government can demonstrate a compelling interest that outweighs the Fourth Amendment concerns of the individual, the collection of biological samples for DNA testing is in violation of the Fourth Amendment.31

  Special-needs provisions for searches have been approved by the courts for administrative actions designed to prevent accidents, such as drug testing of railroad engineers, but have not been applied to crimes that have been committed. Once law enforcement is in search of a perpetrator, the Fourth Amendment of the Constitution applies in full force. Mandatory dragnets would be considered police and not administrative functions and therefore would require a warrant.

  On the other hand, surreptitious DNA collection has been upheld in at least one state supreme court decision (see chapter 6). If the law continues to move in this direction, it seems more likely that known, mandatory DNA searches would be allowed when DNA collections that occur without consent or even knowledge that they are happening are considered lawful.

  Effectiveness of Dragnets in Solving Crimes

  How effective are dragnets in catching criminals? According to a 2004 report issued by the Department of Criminal Justice at the University of Nebraska and conducted by Samuel Walker, a criminal justice professor, dragnets are entirely ineffective in solving crimes.32 As of 2008 there had been at least 20 DNA dragnets conducted throughout the United States since 1990. All the dragnets were prompted by unsolved murders and rape cases and included dragnets that took place in Miami; San Diego; Ann Arbor, Michigan; Cheverly, Maryland; Lawrence, Massachusetts; and Truro, Massachusetts. Only one of these dragnets resulted in the resolution of a crime.

  Upon closer inspection the single successful dragnet was not much of a dragnet at all. The case involved the rape of a resident in a nursing home in Lawrence, Massachusetts, in 1988. The victim was a 24-year-old comatose patient who became pregnant from the rape and gave birth to a premature baby. Thus investigators requested DNA samples from each of the 25 employees who had access to the patient. One of those samples from a nurse’s assistant matched the DNA found in the rape victim. According to the University of Nebraska study, this was the only DNA dragnet out of 18 reported to have been carried out in the United States that resulted in the arrest and conviction of a perpetrator.33 For each of the remaining situations, the case remained unsolved or was solved through other means.34 It is important to note that the Lawrence dragnet was directed at workers in a nursing home, where the number of suspects was relatively small. According to Walker, because the crime was a sexual assault in a nursing home, and the requests for DNA samples were limited to employees known to have access to the victim, it was not a DNA “sweep,” as in the other cases that involved many more and entirely suspicionless individuals.35 At best, it was a dragnet of very limited scope.

  Aaron Chapin argues that dragnets are an inefficient way to solve crimes. Crime solving by elimination of suspicionless individuals is also costly and unproductive.36 In a letter published in the Provi
ncetown Banner, Frederick Bieber and David Lazer wrote:

  Traditional DNA dragnets have had little success, as true perpetrators usually don’t rush forward to volunteer a blood or cheek swab sample for comparison to crime scene evidence. Thus, sampling from elderly hobbling men in Truro would, at first blush, seem to be a distinctly inefficient way to look for new leads.37

  In the case of the Truro, Massachusetts dragnet, police began collecting DNA from the nearly 800 male residents of the Cape Cod community three years after the 2002 brutal murder of former fashion writer Christa Worthington. The DNA samples remained unanalyzed for months. Ultimately a DNA sample was found to match the DNA from the crime, but this sample had not been obtained as part of the dragnet. In fact, the DNA belonged to Christopher McCowen, a 33-year-old trash collector who made weekly visits to the victim’s home and was considered a possible suspect from early on in the investigation. When questioned, McCowen agreed to provide a DNA sample, but it took police two years to collect it and another year to process it. The cause for the delay in processing had been attributed to inadequate resources and a DNA testing backlog, no doubt exacerbated by the DNA dragnet.38

  Uniform Standards and Good Practices

  Currently there are no uniform standards or best practices according to which law enforcement collects DNA on a voluntary basis. People in the United States who are asked for their DNA are not read a statement like the Miranda Clause that would assert their rights not to give up their DNA without a warrant. The Electronic Privacy Information Center (EPIC), a public interest research center located in Washington and focusing on civil liberties, issued the following list of best practices in its amicus brief on behalf of the Kohler litigation:39

  DNA dragnets should only be used by police as a last resort, when all other investigative avenues have been exhausted. In Walker and Harrington’s Model Policy for DNA Sweeps, the authors argue that requests for voluntary DNA samples should be limited only to cases where “police officers have specific credible evidence linking a person or a very small number of people with a crime.”40

  DNA dragnets should be limited in scope to those who match the description of the perpetrator, or to those who had access to the victim. The dragnet should not serve as an excuse to build a DNA database of certain groups of individuals. These databases, sometimes called “rogue databases,” are kept out of CODIS for the use of local law enforcement.

  Potential donors of DNA samples should be informed of their right of refusal when asked by police to voluntarily submit their DNA to exclude them as a suspect in a crime.

  Individuals approached for “voluntarily” submitting a DNA sample should not be subject to coercive techniques such as threats, additional scrutiny, or legal action if they refuse to comply.

  Samples gathered from voluntary donors who are exculpated by their DNA profile from being a suspect in a dragnet should have their profile expunged and biological sample destroyed and not retained in either a separate file or in state or federal databases. A similar recommendation was noted in the Nuffield Council on Bioethics report on the forensic use of bioinformation: “Consent given by a volunteer to retain their biological samples and resulting profile on the NDNAD must be revocable at any time and without any requirement to give a reason.”41

  The consent form used to obtain voluntary DNA samples should disclose how the samples will be used and whether they will be destroyed if the sample does not match the crime-scene DNA.

  Police must protect the privacy of the donors of DNA samples, as well as those who exercise their right to opt out. In Omaha, Nebraska, police investigating a series of rapes conducted a dragnet to obtain DNA samples of more than 36 men. On the basis of a rough witness description of the perpetrator, police went to people’s homes and requested DNA in front of family members.42

  While the best practices issued by EPIC on DNA dragnets may not be sufficient if one considers DNA dragnets to be inherently coercive, they provide a sensible balance between police efforts to investigate a high-priority crime where all other leads have been exhausted and the protection of civil liberties of suspicionless individuals brought into a search by virtue of their geographical proximity to the crime.

  The original use of dragnets in police investigations before forensic DNA involved a type of blitzkrieg sweep through an area in an effort to pick up a suspect before too much time elapsed that would afford the perpetrator of a crime the opportunity to escape police interrogation. Both spatial and temporal elements were critical in traditional dragnets.

  For DNA dragnets, time plays a different role. There is no immediacy to the search. The potential evidence retrieved from a DNA search will not disappear after a certain time period. What the police want and need is a match of the crime-scene DNA with the DNA profile of a person who is within the geographical area where the crime was committed. DNA dragnets are not of much value when the perpetrator of a crime is traveling through an area or when the number of people brought under the dragnet search becomes very large. For example, a crime committed in a rest stop at an interstate highway would not lend itself to a dragnet of people in the area.

  As was demonstrated by the Truro case, DNA dragnets can be highly inefficient, and too much emphasis on DNA can inadvertently turn police away from more traditional methods of criminal investigation. In the meantime, the costs to community trust in law enforcement can be high. On June 19, 2008, the American Civil Liberties Union (ACLU) of Massachusetts filed suit on behalf of approximately 100 of the men who had voluntarily provided DNA samples to the Truro police in 2002. In August 2008 Massachusetts State Police returned the biological sample of one of the men who volunteered his DNA. By the winter of 2008 the other samples collected by Truro police were still in the database and awaiting a court decision on the expungement of the profiles and the destruction of the biological samples.

  Dragnets are an inefficient means for solving a crime because they involve solving crimes by exclusion. From 1995 to 2005 about 7,000 people were tested in DNA dragnets in the United States. In only one case was a suspect identified where he gave his DNA voluntarily, and the list of possible suspects in this case was sufficiently narrow to begin with. For a small fixed number of suspects, exclusion can work efficiently. When the dragnet targets hundreds and thousands of people, and many people refuse to submit, experience has shown that it is not an efficient way to solve the crime. Moreover, the areawide data banking of innocent persons’ DNA can undermine the willingness of individuals to cooperate and result in considerable hostility toward law enforcement. More broadly, the means by which police execute dragnets has been shown to be coercive, and there is little accountability, such as uniform standards of informed consent, to counteract this effect.

  Requiring DNA from individuals picked up in a dragnet flies in the face of constitutional precedent that has protected suspicionless individuals from searches that are designed to solve crimes. Mass collections of DNA can have a chilling effect on society that could suppress constitutional speech and freedom of assembly. As one judge noted, a permanent national DNA database “could be used to repress dissent or, quite literally, to eliminate political opposition.”43 People who know that they are in a database might hesitate to participate fully in civil society as activists. The creation of a database of innocents can be regarded as a silent way of suppressing dissent.

  Chapter 4

  Familial DNA Searches

  Familial testing, which uses biological relatedness as the trigger for criminal investigation, ensures that groups with more children and large families relative to other groups will be at higher risk for genetic surveillance.

  —Daniel Grimm1

  In March 2003 motorist Michael Little suffered fatal injuries when a drunken individual hurled a brick from a footbridge in Surrey County in the southeast of England. The brick pierced the windshield of his moving vehicle, hit him in the chest, and caused him to suffer a fatal heart attack. Blood traces left on the brick were believed to be thos
e of the perpetrator. The blood, it turned out, was from a wound the perpetrator had received during an earlier attempt to steal a car. Police profiled the DNA in the blood and compared it with 2.35 million profiles it had stored on the national U.K. database at that time. There was no match. They also conducted a DNA dragnet in the area, collecting DNA samples from more than 350 young men. Six months after the crime had been committed and still with no leads, the police decided to go back to the database, but this time to run a search not for a perfect match, but for one where 11 or more of the 20 alleles used in the British system matched. The search turned up 3,525 potential siblings to the source DNA.2 The police narrowed this list to 25 white males who lived in the geographical region of the crime. One of these matched at 16 out of 20 alleles. This near match led the police to Craig Harman, a brother of the source profile and a prime suspect who admitted to and was convicted of the crime.3 Harman was the first person in the world to be convicted following identification through a familial search of a DNA database.4

  “Familial searching” of databases represents a new method of creating suspects in the absence of an immediate cold hit. These searches are premised on the notion that siblings and other closely related individuals share more common genetic material than unrelated individuals. Therefore, a DNA profile that is a near match to the DNA found at a crime scene may be that of a first-degree relative of the actual perpetrator (i.e., a parent, an offspring, or a full sibling). The source of the near match, then, may lead the police to the criminal suspect and, in some cases, provide valuable information about that individual.5