Your License, Registration and DNA, Please?

Congress Passes, President Signs, Press ignores…

As broader nationwide DNA database becomes law, states rush to fill database with expanded collection laws of their own.

By Ethan Ackerman

The DNA Fingerprint Act of 2005, which I blogged about late last year, was signed by President Bush into law on January 5, 2006. The legislation expands federal DNA collection efforts to include some legal and illegal immigrants, and allows states to contribute DNA collected for any reason listed under state laws to the federal DNA database. The final language did not change since I first wrote about it. See also the summary here. Rather than rehashing the bill, this post will discuss (1) how the media missed this issue, (2) related state and international developments, (3) the large role individual states’ policies will have on deciding just how ‘invasive’ this database is, and (4) some current ‘DNA criminology’ shortcomings that this bill may make even worse.

The Media Missed the Issue

While the initial legislative steps of the DNA Fingerprinting Act drew some attention, the media silence on its ultimate passage can be summed up in one phrase – ‘buried in layers of legislation.’ The DNA Fingerprinting Act was rolled into the 2005 Violence Against Women Act and 2005 DOJ Reauthorization Act, a 176 page mega-bill, which had the effect of obscuring its passage. It took several days for the press to even digest the DOJ bill’s passage – its other provisions included Democrat-driven ‘mail-order bride’ protections and the extensively-blogged ‘Cyberstalking prevention’ provisions (and even that wasn’t covered in the press until a week later).

International & state developments

On the international scene, Ireland and Scotland, among others, are also expanding DNA collections. (Scotland has the unique wrinkle of being the only UK territory where evidence collected at arrest is held and destroyed if a conviction doesn’t follow. Other UK regions already collect and retain DNA at the time of arrest; it is this higher threshold that is targeted for removal.) The UK DNA collection expansion is in tandem with its fingerprint collection expansion – UK police are also set to beging ‘roadside’ collection of fingerprints. Here again, the UK appears to be following US lead, as several jurisdictions, notably Phoenix, AZ, are already collecting ‘roadside’ fingerprints, initially voluntarily but now under penalty of jail, for traffic violations. The UK appears to be out in front of the US, however, with ‘in the field’ DNA collection, with even bus and train drivers collecting DNA of suspects – in this case ‘spitting passengers.’

At the state level, legislation expanding DNA collection to suspects is racing through legislatures – apparently regardless of the political party in control. The Democratic-controlled New Mexico House recently passed legislation authorizing collection from felony suspects. The Republican-controlled Kansas legislature is apparently ready to do the same. Indiana, where different parties control the two legislative chambers, is also several steps into the legislative process of passing a similar bill. Somewhat more liberal New York is running into difficulties over Republican Governor Pataki’s version of expanded collection authority, which would apply to misdemeanors and felonies, but only after conviction. While the federal DNA bill allows states to collect DNA for any purpose, under any “applicable legal authority,” states so far seem focused on expanding collection from just convicted felonies to felonies AND misdemeanors, and in many cases also to criminal suspects, for now.

The pressure for a state ‘race to the bottom’

A notable aspect of the piecemeal expansions occurring at the state level is the “race to the bottom” between states that appears likely. States with heightened guilt or suspicion standards (such as ‘felonies only’ or ‘after conviction, not just arrest’ states) would benefit the least from their correlatively smaller databases. A database’s utility increases exponentially, not just linearly, with the number of entries it contains. Pressed to obtain the maximum value from their systems, or even just a usefulness level comparable to states that collect more DNA, each state would feel a pressure to expand its database to match or exceed other states. Institutional, and often moneyed, motivators such as political platform-staking, a drive for increased governmental efficiency and pressures to lower crime also force states to compete in expanding these DNA databases. These concentrated pressures exert much more force than the diffuse pressures of individual desires for genetic privacy – a classic economic imbalance often seen in other policy-making scenarios.

States with laws already on the books

At the time the federal DNA Fingerprinting Act passed, Virginia, Louisiana, California, Florida and Texas already had laws requiring DNA collection at the time of arrest for some or all crimes. Yet almost all of these states also have had notable instances of erroneous forensic ‘mis’matches, with wrongly convicted suspects serving time before their eventual release. In Virginia, a prisoner’s life sentence was commuted and he received an eventual pardon after being exonerated by conflicting crime lab tests. In Louisiana, a man served 17 years before an eventual pardon. A minor was convicted of rape and served over four years before exoneration in Texas, and a prisoner served a 17-year term before it was overturned in Florida (search for Rudolf Holton on page), for example.

DNA Database Shortcomings

Just as with any other scientific endeavor, DNA screening is plagued by errors and fraud. What makes DNA screening different is that, unlike carbon-dating trees or replicating embryonic stem cells, fraudulent DNA evidence doesn’t just cause media scandals but it is used to incarcerate or execute people.

Error

Like any other human endeavor, collecting, handling, and processing DNA evidence is an error-prone process. The same characteristic that makes DNA evidence so incredibly useful – an amazingly small fragment of as little as several human cells can be used to identify its genetic source – makes it incredibly prone to contamination. Stray chromosomes from a lab worker, housecat, other evidence sample or crime scene witnesses can be misattributed to a person, and this error can be multiplied by the chemical reaction that underlies modern DNA forensics. Worse, even if scientists get the chemistry right, their assistants and prosecutors still have to get the paperwork right and not mislabel or switch results or files.

Fraud

In many cases, a desire to cover up the errors discussed above apparently leads to false or misrepresented DNA results. In other cases, a lack of impartiality – the majority of official state and local crime labs are tied directly to the local police force – is the problem. For example, in Indiana (which is also contemplating an expansion of collections), allegations that prosecutors pressured crime lab workers to alter evidence have imploded the trial of an alleged murderer.

Showing just how far one crime lab employee’s evidence-concealing can go, Michigan and Chicago have both investigated the alleged concealment of exonerating DNA evidence by a Chicago crime lab worker who subsequently went to work at the Michigan state crime lab. Chicago settled over $9 million in claims from the incident.

Similarly showing how far irregularities with DNA evidence can get, questionable testimony from a Virginia crime lab was a large part of the reason the US Supreme Court stayed execution (though ultimately declined cert.) on Robin Lovitt’s Virginia death row petition in 2005. Lovitt’s sentence was ultimately commuted as a result of the misrepresentations. Problems, however, are not limited to state labs. The US Army’s lab, which operates roughly in parallel with the FBI’s national lab as a crime and records lab for the US military, stands accused of evidence fraud as well.

DNA’s mythical status as irrefutable evidence compounds these shortcomings

Criminal jurors, charged with deciding facts in a trial, tend to be irreversibly swayed by DNA evidence, rightly or wrongly. Call it the “CSI effect,” but DNA evidence creates an irrefutable connection in the minds of most jurors. While this can be a two-edged sword when juries expect forensic evidence prosecutors just don’t have, jury allegiance to DNA evidence tends to harm defendants it is introduced against much more than it exonerates them.

DNA’s genetic nature means inclusion is ‘inclusion by proxy’ for all your relatives, and an ‘open genetic book’ about personal attributes and status.

DNA, like a fingerprint, is a useful personal identifier. Indeed, there is a scientific and mathematical basis for the uniqueness and correlation of an individual to his or her DNA that is largely absent for fingerprints. DNA, however, is much more than just an individualized identifier. Much like a family tree, bank statement, dental impression or medical history file may serve to identify an individual, these records (like DNA) also contain much personal information unrelated to authenticating a person’s identity. DNA may reveal private information such as legitimacy at birth or the presence of a gender-change operation or marrow transplant. Some research suggests there are also reliable genetic markers for such traits as aggression, substance addiction, criminal tendencies and sexual orientation.

*title with apologies to James F. Van Orden, who authored an excellent, and slightly variant-titled article I discovered after writing this post.

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