This past year has seen a particularly dramatic increase both in the collection of DNA for forensic purposes, and in controversy over its ethical and social implications. DNA forensics can be an extremely useful tool for identifying perpetrators as well as exonerating people who have been wrongly convicted or accused. However, its use carries significant risks as well. 25 states currently allow pre-conviction DNA testing, but most are now stuck in battles over its legality. As states struggle to balance effective law enforcement and protecting individuals’ rights and privacy, the debate over the appropriate use of DNA is likely to intensify.
In Maryland, the controversy has pit the state’s highest court against the U.S. Supreme Court. Maryland’s DNA Collection Act allows the collection and retention of genetic material from those who are arrested, even if never convicted. In 2010, Alonzo Jay King was convicted and sentenced to life in prison without the possibility of parole based on a DNA sample that was taken from him the previous year without a warrant, and that ended up linking him to an unsolved 2003 rape. But Maryland’s Court of Appeals ruled earlier this year (Maryland v. King) that this violates the Fourth Amendment as an unreasonable search and seizure.
The Supreme Court is currently deciding whether to hear Maryland’s appeal, but in the meantime, Chief Justice John Roberts has allowed state police to carry on unobstructed. He ruled that the state will suffer “irreparable harm” without this “valuable tool for investigating unsolved crimes.”
Yet, last year in Maryland, less than one-tenth of one percent of DNA samples collected led to convictions.
The Vermont Supreme Court is similarly deciding on the constitutionality of a 2009 law allowing the collection of DNA from those who have not yet been convicted. Although, in Vermont, the lower court rulings have managed to largely restrict the state from carrying out the law until a greater consensus has been reached.
California, too, has been struggling with its laws on DNA forensics. In 2004, voters approved Proposition 69, which authorized the collection of DNA from everyone arrested on suspicion of a felony. In February, a panel of the Ninth U.S. Circuit Court of Appeals voted to uphold this law, arguing that the DNA is used only to identify individuals and that the state’s interest in solving crimes outweighs privacy concerns. However, a majority of judges at a federal appeals court have decided to have an 11-judge panel review the case to determine if these results are unconstitutional.
Several states have recently heavily expanded their efforts to preemptively collect DNA samples. New York became the first state to allow the collection of DNA from those convicted of any crime, no matter how minor, when its legislature and Governor Andrew Cuomo cleared an “all-crimes DNA” program earlier this year. The new law also gives lawyers greater access to the DNA database for use in trials.
In July 2011, Ohio passed a law requiring everyone arrested on a felony charge to provide a DNA sample, expanding the previous practice of limiting collection to those convicted of a felony. In the year since the law’s inception, the number of samples in the state’s database has more than doubled. While Ohio law enforcement previously collected around 2,800 samples per month, it now obtains around 6,000 monthly, with nearly a half million samples currently in the database.
Proponents of such expansions compare the forensic use of DNA samples to standard fingerprinting; they argue it is merely a means for establishing identity. Many also contend that DNA is only used to help solve the most serious of crimes, and that large databases are worthwhile because those who commit major crimes are more likely to be repeat offenders.
But the use of DNA forensics has some major drawbacks that poke holes in the fingerprint metaphor. DNA databases are increasingly being used for more than individual identification. Searching for partial matches can find that a suspect is likely to be the family member of someone in the database. This brings extended families, including many people who have never broken the law in their lives, under direct police surveillance.
And though a cheek swab constitutes a relatively low level of physical invasion, the intrusion of privacy represented by being forced to surrender DNA to a police database is high. DNA is qualitatively different from a fingerprint; it holds extremely personal information about lineage, propensity for disease, and countless other traits.
Despite the insistence that DNA is only used for serious and violent crimes, only six percent of cases for which DNA is sought are homicides; and 20 percent are for sexual assaults. As many as 32 percent of cases involve property crimes, mainly burglaries and robberies.
With popular culture regularly featuring DNA forensics in crime investigations, juries often misunderstand DNA evidence as infallible. This phenomenon is so widespread that it has been given a name: the “CSI effect.” But DNA findings are far from infallible. Contamination, clerical errors, and misinterpretation are common and have led to false convictions in the past and recently (see here and here.)
Earlier this year, for example, Cleveland Barett was brought to trial for the sexual assault of a nine-year-old girl. Prosecutors claimed that his DNA “matched” DNA found on the girl. Shockingly, crime lab analyst Lisa Fallara acknowledged that the genetic profile in question would match 1 in 4 African-American males, 1 in 8 Hispanic males, and 1 in 9 Caucasian males - in other words, hundreds of thousands of men in the Chicago region.
The most troubling aspect of DNA forensics is the way that it plays into an already deeply unequal and problematic criminal justice system. The number of people incarcerated in this country has risen dramatically over the past several decades and has disproportionately affected certain communities. A Black American is five times more likely to be in jail than a White American. African Americans now make up roughly 40% of the national DNA database. The overrepresentation of Blacks and Latinos in the criminal justice system means that DNA forensic practices are not affecting all equally, but have become yet another way to disproportionately police particular groups. These communities will experience greater genetic surveillance and be subject to more injustice from inaccurate interpretations of DNA.
Many victims’ rights organizations, including one called DNA Saves, are pushing states to pass laws further increasing DNA collection on the grounds that it “pinpoints suspects more quickly, gets predators off the streets sooner and clears suspects who have been wrongly accused.” This is a dangerous over-simplification. DNA evidence is not infallible, nor is it a neutral scientific advance. Misuse of DNA forensics threatens our civil liberties and promotes injustice for specific communities. We should work towards ensuring that DNA forensics is used for the common good - without allowing misuses in an already deeply flawed system to become a national norm.