State Legislatures Magazine: June 2001

Editor's Note: This article appeared in the June 2001 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Posted July 23, 2001

Proof Positive

Genetic Dragnets
Unfunded Mandate

Catching Criminals with DNA Alone

How Our Genes ID Us

Proof Positive

The newest key to cracking cases is DNA. But the challenge for states is how to tap its potential and also protect civil liberties.

By Donna Lyons
The 1992 stabbing death of a Fairfax County, Va., shopkeeper was among those destined for a "cold cases" drawer. A 45-year-old mother was stabbed multiple times in what appeared to be a vicious attack and struggle. Although considerable physical evidence was collected at the crime scene, including blood that wasn't the victim's, detectives had few other leads to pursue.

But last year the case was cracked when DNA from the crime scene was matched to an offender profile. Under Virginia's law, all convicted felons are required to provide a DNA sample for the state's database maintained by the Division of Forensic Science. The defendant, who had been released from prison following a 1996 robbery conviction, has now pled guilty to the murder.

The "cold hit" was one of thousands in the states made possible by the advent of offender DNA databases. The enormous capability of forensic DNA has states scrambling to bring criminal justice policy and practice up to speed with the technology's power to aid investigations and solve crimes. At the same time, civil libertarians want to ensure that limits are placed on how far government can go in collecting samples and using them to identify suspects.

DNA evidence from a crime scene can be compared to several categories of individual samples. Suspects in ongoing investigations may agree to provide a sample or may be ordered by a court to do so. "Elimination samples" also are collected from the victim and from certain people who are not suspects. And crime scene evidence is routinely checked against the growing numbers of samples taken from convicted offenders.

"The more offender samples you have on hand, the greater the ability of law enforcement to identify suspects and protect the public," says Assemblyman Joseph Lentol of Brooklyn, N.Y., chairman of the Assembly Codes Committee. He says that repeat and sex offenders can be more readily identified by the state's DNA database since it was expanded from 21 crimes for which offenders must provide samples to 107.

All states have passed laws to require DNA collection from certain convicted sex offenders. In most, other serious offenders also are required to provide samples. Last year alone, at least nine states added crimes for which offenders are required to submit genetic samples.

So enthusiastic is law enforcement about the power of DNA to identify and eliminate suspects that the International Association of Chiefs of Police has taken the bold step of endorsing the collection of DNA samples from individuals at the time of arrest. They also encourage federal funding to support state and local efforts, as well as safeguards to prevent misuse of samples.

Louisiana authorized taking samples from people arrested for sex offenses and other serious crimes in 1997, but delayed implementation until a state crime laboratory could be funded and properly equipped. An appropriation expected this year would help move the state toward the unprecedented practice. New York also has had proposals to add samples of those arrested for certain crimes to the state's database, but Lentol says the catch-up mode they find themselves in right now is overwhelming the idea of requiring more samples. In New York and elsewhere, labs have had difficulty keeping up with increasing numbers of offender samples.

Sampling arrestees, not just those convicted, also raises privacy concerns. "A caution flag must be raised on proposals to take DNA samples from people who have been arrested, but not convicted," says Lentol. He said that any such move would require thorough consideration of the legal ramifications.

Courts routinely have upheld state laws applying to convicted offenders. But how courts would treat samples from people who are arrested, but who may or may not be charged and convicted, is still uncharted territory. It seems likely that this would prompt review under the Fourth Amendment's protection from unreasonable search and seizure. This brave new world bridging the human genome and the police precinct prompts privacy concerns even among big supporters of state databases.

GENETIC DRAGNETS
State legislation has not specified that suspect, victim and other elimination samples given for one particular investigation be compared to other DNA evidence in government databases, warns defense attorney and law professor Barry Scheck of the Cardozo School of Law in New York. Yet some police departments have sought to solve certain crimes by carrying out "genetic dragnets" in which saliva swabs are collected from many acquaintances, neighbors and other people who knew or associated with the victim. This practice raises the issue of whether individuals are giving samples voluntarily or if they are intimidated at the possibility of becoming a suspect if they refuse. Observers also warn that it creates the possibility of "suspect databases" containing samples from people taken for no reason other than their having lived in a particular neighborhood or having been a patron or employee at some place of business.

A Justice Department National Commission on the Future of DNA Evidence that has been at work the past five years has discussed-but thus far has deferred judgment about the wisdom of-taking DNA samples from arrestees. The group's executive director, Chris Asplen, says the issue isn't ripe until retrieval of DNA evidence is a routine part of police procedure, and state and local labs are able to process the samples now provided for under current laws. The commission recently published a law enforcement guide to help in training officers on common items that may contain DNA evidence, along with procedures to safely handle and transport that evidence.

"Some 12 million people will be arrested in this country this year. Clearly it is not yet feasible to think about profiling that many more samples," says Asplen. There currently is a backlog of some half a million unanalyzed samples collected from convicted offenders, according to the FBI, and there are an estimated 1 million more samples that haven't even been collected yet.

UNFUNDED MANDATE
Backlogs occur because, in most cases, DNA offender databases were created without the lab funding to support that work. "You could call it an 'unfunded mandate,'" says Asplen. Most state and local forensic labs were designed and equipped for crime-scene evidence analysis, not the more "robotic" profiling of DNA samples. "Offender profiling is not only a new pile of work, it is a different type of work" he said.

States now are addressing lab capability with funds from the Justice Department. Last year, seven states were awarded grants totaling more than $7 million to help analyze DNA samples. Some 150,000 samples from criminals in California, Florida, Minnesota, New York, Pennsylvania, Texas and Washington can now be entered in the system.

In addition, late last year Congress passed the DNA Analysis Backlog Elimination Act of 2000 (HR 4640), authorizing $170 million for this purpose. The money will help in entering samples in the FBI's Combined DNA Index System. The national system, established as a pilot program a decade ago, now houses some 460,000 offender samples that can be compared with those of other states. Currently, there are 97 labs in 34 states that participate in the system. Some states have turned to private labs to catch up on their backlogs.

"With private contracts to get offender samples profiled and funds provided to upgrade state and local labs, we are beginning to see the crime-solving promise of DNA data banks be realized," says Asplen. Earlier this year, Ohio's DNA database had its first match to an unsolved rape and burglary. The state had just completed profiling and uploading 30,000 offender samples that had been collected from certain felons since 1997.

New York City has recently sent thousands of stored rape kits to private labs. Comparing evidence in those cases to the offender database is likely to yield a fascinating amount of information, Asplen says. "Serial offenders will be identified and we can expect to catch sex offenders we didn't know about." He said that requiring samples of many felons as permitted under New York law provides opportunity to identify sex offenders among felons who have been convicted of less serious crimes.

In Virginia, where DNA sampling of all felons has been required for more than 10 years, samples provided by property offenders account for most of the hits solving violent crimes, according to Paul Ferrara, director of the state's Division of Forensic Science. The brutal stabbing in Fairfax County is one of 352 solved crimes to date, 247 of those just since 2000, credited to the state's DNA database.

"They are starting to come fast and furious," says Ferrara. "We're getting a hit a day and dangerous people off the streets."

Catching Criminals With DNA Alone

In jurisdictions across the country, arrest warrants no longer require a name or even height, weight, hair and eye color. The traditional means of identifying individuals has been replaced by science-namely DNA.

Last year, Colorado and Washington lawmakers passed bills allowing prosecutors to identify perpetrators solely from DNA profiles of physical evidence collected at crime scenes. California enacted a similar law permitting prosecution of certain sex offenses within one year of the date the perpetrator was identified through DNA.

Often referred to as a "John/Jane Doe" arrest warrant, prosecutors in California, New York, Pennsylvania and Wisconsin have used these to suspend the statute of limitations. California became the first state to successfully use a John Doe warrant to arrest and charge an individual, and it was upheld by a superior court judge. At least three states introduced legislation in the 2001 session allowing prosecutors to identify suspects by their DNA profiles alone.

Opponents argue that the purpose of an arrest warrant is to sufficiently identify the individual and to provide notice that he or she is a suspect in a crime. They say a DNA profile does little in the way of serving that purpose. Such warrants may cause a delay in prosecution when the suspect's DNA profile is not already in a databank.

But proponents, like Judge Ronald Reinstein of Arizona, one of two judges who serves on the U.S. Department of Justice's National Commission on the Future of DNA Evidence, say, "A DNA profile is as good an identifying characteristic as a fingerprint." He argues that the suspect's right to have a name on a warrant diminishes when he tries to conceal his identity or has fled the area.

As more and more profiles are entered into DNA databanks, the delay between issuing the arrest warrant and prosecution will decrease for offenders who have previously or subsequently committed crimes where this information has been stored in databanks.

Judge Reinstein foresees the day when DNA databanks will be comparable to the fingerprint records currently stored in the Federal Bureau of Investigation's Integrated Automated Fingerprint Identification System.

At least three states addressed DNA technology by opting to extend or repeal the statute of limitations for certain offenses if evidence for DNA testing is available. Another nine considered similar legislation this year. In the past, limits were placed on prosecution of crimes, other than murder, because over time evidence becomes unreliable, memories fade and witnesses move away. "A sense of finality needs to be in place for those accused who may not remember where they were on a particular day 20 years earlier, let alone find witnesses to corroborate their account in order to form an adequate defense," says Chris Asplen, executive director of the U.S. Department of Justice's National Commission on the Future of DNA Evidence. But DNA evidence changes the notion of the statute of limitations because it is not based on memory, but on science, which, if preserved, is just as reliable many years after collection.

Last year, Connecticut legislation extended statutes of limitations for certain sex crimes to 20 years if the victim notifies authorities within five years of the crime and the identity of the offender is established through DNA. Delaware allows prosecution of felonies and misdemeanors 10 years after the offense if based on DNA evidence. And Minnesota has no time limit on prosecution if DNA evidence was collected at the scene. Although he favors extending the statutes of limitations for sexually based offenses, Connecticut Representative Mike Lawlor, chairman of the House Judiciary Committee and a former prosecutor, raised some concerns that policymakers should keep in mind when considering whether or not to extend the statute of limitations for serious offenses.

"With DNA profile catalogs, we are now able to prove definitively the identity of a suspect," he says. "But identity is only one element of the crime. In rape cases, for example, DNA does not help in proving lack of consent, another element that prosecutors often must demonstrate. That is where the common law purpose for statutes of limitations may be relevant."

-Molly Burton, NCSL

How Our Genes ID Us

DNA, or deoxyribonucleic acid, is present in virtually all cells of the human body. This genetic code that we inherit from our parents is a potent identifier because each person's DNA is different from that of every other individual, ex-cept identical twins. Physical evidence recovered from a crime scene-blood, semen, saliva, hair, skin-can be tested for DNA markers. Advances in analysis allow very small amounts of matter, like a trace of saliva on a discarded cigarette butt, to be tested. Forensically valuable DNA can be found even on evidence that is decades old if it was collected and stored properly.

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