A truly universal, nationwide database should result in a 100 percent match rate against the database. Any DNA collected from the scene of a rape would presumably link us to an individual. But some important caveats need to be considered in understanding the actual impact this might have on rape incidence. First, DNA is not relevant for most rape cases. According to the Department of Justice, most rapes committed against women are perpetrated by someone the victim knows.8 According to the Centers for Disease Control, in 2000, 8 out of 10 rape or sexual assault victims reported that the offender was a friend, acquaintance, or relative.9 Second, even after the name of the rapist is identified, there are usually problems in proving that the alleged sexual assault was not consensual, which cannot be resolved by the analysis of DNA. Third, only about one-third of rapes even get reported to police in the first place. A DNA database, no matter how inclusive, will do nothing to help solve unreported cases.
No one doubts that midnight rapists have been identified and successfully prosecuted largely because of DNA evidence. But several things must happen in order for this to occur. First, DNA evidence must be found at the scene of a crime. It has to be of sufficient quantity and quality to produce a full DNA profile that unambiguously matches a profile in the database. Often in cases of sexual assault DNA evidence is in the form of a mixture of more than one individual’s DNA. This can complicate the analysis (see chapter 16). In addition, other factors in the case have to implicate and not exonerate the suspect. Therefore, a universal database will not place all members even of this smaller subset of rapists—all midnight rapists—behind bars.
Even if a universal database will not solve all rape cases per se, there are people who argue that it would still have a dramatic impact on crime rates generally. Advocates of a universal database for crime reduction base their arguments on two theories. First, they argue on the basis of a recidivist theory that with a universal database police will be able to catch perpetrators on their first offense, before they have a chance to commit a second crime.
There is considerable debate about recidivism rates and whether it is possible to predict that an individual who has committed one crime is likely to commit another. Complex social behavior cannot be generalized or easily reduced to probability statistics. Sex offenders are thought to have a particularly high rate of recidivism, and as a result, a number of policies targeting this category of offenders have been adopted at both state and federal levels, including community registration, notification, civil commitment, and compulsory treatment. The Combined DNA Index System (CODIS) database itself initially targeted this group. But despite significant attention to this category of offenders, results of studies on sex offender recidivism have been tentative and, at times, contradictory. Some studies have reported recidivism levels as high as 70 percent, whereas others have found levels as low as 4 percent, depending on the category of the offense.10 Part of the difficulty is that “sexual offending” is a broad term and includes a wide variety of offenses, such as voyeurism and exhibition, as well as both violent and nonviolent sexual offenses. Recidivism rates among these different categories of offenders are unlikely to be similar. Also, recidivism can be defined broadly as any new offense or more narrowly as either any new sexual offense or a sexual offense of the same type, and it can be measured on the basis of rearrest, reconviction, or reincarceration. The range in recidivism estimates can be explained, in part, by these methodological disparities. A 2005 study by Kristen Zgoba and Lenore Simon found that 33 percent of sexual offenders in New Jersey followed over a four- to seven-year period after release recidivated, but fewer than 10 percent of sexual offenders were reconvicted for sexual offenses.11
Regardless of actual recidivism rates, it can be argued that every unsolved crime provides reinforcement for the recidivist to commit another criminal act. Career criminals are associated with minor burglaries, for which DNA is almost never sought because of the difficulty of collecting DNA known to have been left by the perpetrator, the expense incurred by the DNA analysis, the lower profile of the crime compared with crimes of violence, and the low yield from CODIS matches. With universal data banks the suspect yield and the prosecutions from minor burglaries might increase (if we assume that DNA can be collected from the crime scene and processed). If caught, convicted, and incarcerated, the offender would be prevented from committing another offense and possibly from graduating to more violent crimes.
In the Washington Supreme Court case State v. Olivas the court considered whether the state could obtain a DNA sample of a convicted felon when it was not needed by law enforcement. The Washington State Supreme Court concluded that the state could obtain a DNA sample under a “special-needs” provision based on the evidence of rates of recidivism of convicted felons. Rebecca Sasser Peterson interprets the court’s ruling:
Prisoners’ knowledge that their DNA fingerprints are in a database, making them easily identifiable, could deter those same prisoners from re-offending after their release. Without further discussion, the court concluded that the government interest in deterring recidivist criminal activity through the use of an offender DNA database was a need “beyond normal law enforcement” and therefore qualified as a “special need.”12
Catching an offender on the first act will not prevent the initial act from occurring. The recidivist theory, to the extent that it applies, only serves to prevent future criminal acts. A second theory in support of a universal database is that having everyone’s DNA in the system would deter crime. According to David Kaye and Michael Smith, “In practice, settling for a DNA identification database restricted to convicts, or to convicts and arrestees, is sure to . . . further compromise public safety by halting far short of the deterrent and investigative capability that a population-wide database would afford.”13 If people know that they are likely to be caught and prosecuted, the argument goes, they will think twice about committing a crime. A career criminal might also be discouraged from acting in the face of a universal database because it would be exceedingly difficult for him to lie about his identity, especially if DNA databases were generalized to other countries. Ben Quarmby, former senior editor of the Duke Law and Technology Review, argues that a universal DNA database “would make it more difficult for the same individual to strike twice and would make it considerably more difficult for terrorists to assume false identities.”14
Currently there is no empirical evidence to support the often-stated claim that DNA databases deter crime.15 Also, the presumed deterrent effects of other criminal justice programs and surveillance technologies have often not panned out. For example, social science research on the death penalty, long justified as a way of deterring murder, indicates that the death penalty does not have an additional deterrent value beyond that of a lengthy prison term.16 States that have imposed the death penalty over the last 20 years have not experienced reductions in homicide rates. Murder rates have been higher for death penalty states compared to non-death penalty states.17 Similarly, more punitive prison sentencing policies appear not to deter crime. Prison populations have been growing steadily for a generation, but the crime rate today is about what it was in 1973 when the prison boom began. A 2005 study by the Sentencing Project showed that states with above-average increases in incarceration have below-average declines in crime rates. Moreover, the study found that states with harsher drug-sentencing schemes are correlated with more frequent drug use.18
Widespread surveillance technologies perhaps provide a more appropriate opportunity for comparison, but here, too, the promised benefits have not occurred. Video cameras, or closed-circuit television (CCTV), have been extensively deployed in public places and are becoming increasingly widespread in the United States. But studies have shown that there is little evidence to support the notion that cameras have either prevented or helped solve crimes. According to a study released by the Scottish Office Central Research Unit in 1999, although more than 70 percent of 3,000 people interviewed believed that CCTV would prevent
crime and disorder and more than 80 percent thought that it would be effective in catching perpetrators, it turned out that widespread installation of CCTV cameras in the city of Glasgow “appeared to have little effect on the clear up rates for crimes and offences generally.”19 More recently, the U.K. Parliament reported:
It has been difficult to quantify the benefits of CCTV in terms of its intended effect of preventing crime. We recommend that the Home Office undertake further research to evaluate the effectiveness of camera surveillance as a deterrent to crime before allocating funds or embarking on any major new initiative. The Home Office should ensure that any extension of the use of camera surveillance is justified by evidence of its effectiveness for its intended purpose, and that its function and operation are understood by the public.20
The deterrent effect of a universal database, if any, certainly would not apply to those individuals who commit a “crime of passion” or who are convinced that they can escape a crime without leaving their DNA at the scene. The possibility that criminals could act without leaving traces of their DNA is a real one; prisoners have in fact been overheard coaching one another on ways to plant biological evidence at crime scenes and how to avoid leaving their own DNA behind.21
Proponents of a universal database also argue that a universal DNA database will improve crime-investigation efficiency. There may be potentially valuable DNA evidence at a crime scene, but if there is no match in CODIS, the national forensic DNA database, police must resort to conventional old-fashioned policing to come up with suspects. In contrast, if they had DNA profiles for every resident in the country, crime-scene DNA would generate suspects rather efficiently, which Paul Monteleoni, 2006–2007 editor of the New York University Law Review, argues “represents a shortcut past a number of intrusive and error-prone investigative techniques.”22 Improving the efficiency of criminal justice has a certain appeal, especially during a period of strained public budgets. “Law and economics” advocates such as Judge Richard Posner believe that the concept of efficiency, or, as economists say, “Pareto optimality,” is relevant in the operational aspects of law.23
It is reasonable to assume that the larger the DNA database, the greater the chances that there will be a cold hit. In fact, however, although a universal database would generate a higher number of suspects overall, the probability of getting a hit does not change as you increase the database with innocent people. It changes only when you increase the database with people who have already committed or who will likely commit a crime in the future. There is no way to predict who will commit future crimes. In addition, as is discussed in chapter 17, the limitation of the databases in detecting crime thus far appears to be driven not by the number of individual profiles in the database, but instead by the number of crime-scene profiles. In the United Kingdom, DNA is obtained in less than 1 percent of all recorded crimes.24
DNA evidence has been highly beneficial in proving that a person was wrongfully convicted. The Innocence Project of the Benjamin Cardozo Law School has assumed responsibility for undertaking legal defense in over 250 exonerations. Most of these cases have hinged on the analysis or reanalysis of DNA evidence. But does society need a universal DNA data bank in order to protect the innocent from being falsely convicted? If DNA evidence left at a crime scene does not match that of the suspect, it would seem sufficient exculpatory evidence. In what way would a national DNA database contribute to this social good?
Columbia University sociology professor Amitai Etzioni is closely associated with a social theory called communitariansim. In Etzioni’s words, “Communitarianism is a social philosophy that maintains that society should articulate what is good, and asserts that such articulations are both necessary and legitimate.”25 There are several grounds, according to Etzioni, on which large-scale DNA banking would be of such benefit to the common good that it would outweigh the losses in privacy, which he recognizes are not trivial. If nothing else, DNA data banks can be used to exonerate falsely convicted individuals.
There is one sense in which Etzioni appears to be correct. Even when falsely incarcerated individuals can prove that the DNA at the crime scene was not theirs, this information has not always been sufficient to obtain their freedom. That was the situation facing Darryl Hunt, a 19-year-old African American male who was convicted in North Carolina of the rape-murder of a white woman and sentenced to life imprisonment in 1984 (see chapter 7). Hunt’s conviction rested on weak evidence, at best, in the form of a tentative eyewitness identification. Hunt testified that he did not know the victim, and there was no other evidence linking him to her or to the murder. In 1994 Hunt’s lawyers requested DNA testing in the case. The DNA testing clearly excluded Hunt from the crime—his DNA did not match semen found on the victim’s body at the crime scene. Despite the results, however, Hunt’s appeals were rejected. Not until the evidentiary semen DNA profile was submitted to the state DNA database and resulted in a partial match that led to the investigation of Willard Brown, who eventually admitted to the crime, was Hunt finally exonerated in 2004 after 18 years of incarceration, and 10 years after he was first excluded by DNA.26
The Darryl Hunt case suggests that there are times when the only way to exonerate a falsely imprisoned person, even when his DNA profile does not match the evidence, is to find the real perpetrator. But it also points to deep-seated failures of our justice system. Many have attributed Hunt’s wrongful conviction in the face of clear exculpatory DNA evidence to deep class and racial bias that continues to permeate the South and the American criminal justice system. Although a universal DNA database might help avoid these injustices, it will do little to address these fundamental concerns.
Fairness in Simplicity?
A universal database has an egalitarian appeal to it. Having everyone in the database might be fairer than having certain populations of individuals, particularly when those populations (e.g., those convicted or arrested) are skewed toward particular racial and socioeconomic classes. Inclusivity carries with it a certain simplicity in that it avoids having to grapple with questions of whose DNA should or should not be in the database. It would also obviate the need for a number of controversial law-enforcement practices, including familial searching, DNA dragnets, surreptitious DNA collection, and John Doe DNA indictments, that are often criticized on notions of fairness.
Some proponents of a universal database have indicated that on racial justice grounds they prefer a database that is all-inclusive rather than the one that the United States is fast approaching that contains DNA profiles from persons arrested. For example, Kaye and Smith support universal data banks, in part because they believe that “there can be no doubt that any database of DNA profiles will be dramatically skewed by race if the sampling and typing of DNA becomes a routine consequence of criminal conviction.”27 A universal (population-wide) DNA database would be “more effective and more fair” than any system based on conviction or arrest.28 Limiting the national database to convicts and arrestees, they claim, “is sure to aggravate racial polarization in society, undermine the legitimacy of law and law enforcement, and further compromise public safety by halting far short of the deterrent and investigative capability that a population-wide database would afford.”29
Racial disparities in our criminal justice system are well established.30 They are systemic and occur at all levels—arrest, prosecution, conviction, and sentencing—but they have proven especially significant at the level of arrest, which is perhaps most prone to subjective judgment or bias on the part of police officers. For example, it is widely recognized that minorities are stopped more frequently than nonminorities in drug searches and traffic citations.31 Those states where DNA data banks include the profiles of arrestees who have not been charged with or convicted of a crime inevitably will be weighted disproportionately toward minorities in CODIS. Pilar Ossorio and Troy Duster predicted an outcome for which there is already confirmation: “If a DNA database is primarily composed of those who have been touched by t
he criminal justice system and that system engages in practices that routinely and disproportionately target minority groups, there will be an obvious skew or bias in the databases and repositories.”32 Similarly, Michael Smith, a law professor at the University of Wisconsin and former chair of the working group of the National Commission on the Future of DNA Evidence, has argued: “If the [DNA] database has a wildly disproportionate representation of African American males, they will be the ones found to have committed previously unsolvable crimes. And when patterns of enforcement are racially skewed, the laws themselves are de-legitimized.”33 The racial justice disparities in DNA data banking are discussed in chapter 15.
England, which has the most permissive criteria of any nation for entering someone’s DNA profile in the national DNA data bank, also has a very high percentage of its black population profiled. In 2006 it was estimated that one-third of young black males were profiled in the national DNA database, compared with one-eighth of young white males.34 In an interview with BBC Radio in 2007, Sir Stephen Sedley, Lord Justice of Appeal (Judge) for England and Wales, stated that these “indefensible” anomalies in the system have resulted in a situation where
if you happen to have been in the hands of the police, your DNA is permanently on record and if you haven’t, it isn’t. . . . It means that where there’s ethnic profiling going on, a disproportionate number of members of ethnic minorities get onto the database. And it also means that a great many people who are walking the streets and whose DNA would show them to be guilty of crimes go free.35
For Sedley, a fairer system would be one where DNA is collected from every citizen and every visitor upon entry to the country. If every man, woman, and child has his or her DNA profile in the forensic DNA database, then at least one aspect of the criminal justice system would not be weighted disproportionately with respect to any racial or ethnic group.
Genetic Justice Page 19
