Rapid DNA Database Expansion and Disparate Minority Impact

by Jenny Rushlow

Introduction

Over the past 13 years, we have seen a boom in the amount of legislation enabling the collection of DNA by law enforcement.  At first legislation was limited in scope, but there are now an abundance of statutes, some of them even authorizing collection from arrestees.  While states that have aggressively expanded their databases argue that inclusive databases lead to more DNA matches,[1] such “cold hits” (matches of previously unsuspected individuals’ DNA to crime scene DNA) do not guarantee that crimes will be solved.  While DNA technology poses some potential solutions, it also requires an exceptionally smooth-running and non-corrupt criminal justice system to ensure proper usage — something which many communities feel the United States lacks.  Furthermore, the racial disparities present in our current criminal justice system are reflected in and exacerbated by DNA database expansion, exposing those groups to further disadvantage and discrimination.  This paper seeks to illustrate these points through an explanation of the federal and state legal framework for DNA laws, a critique of the utility of DNA collection for criminal justice purposes, and an analysis of the disparate impact these laws are likely to have on minority communities as they exacerbate pre-existing disparities in the criminal and juvenile justice systems.

Comprehensive legislation for criminal DNA collection began with the DNA Identification Act in 1994, which authorized collection of samples from people convicted of serious, violent crimes.[2]  This Act also authorized the FBI to create a centralized national DNA database that would facilitate the sharing of DNA profiles among the states.  This software system, called the “Combined DNA Index System” (CODIS), enables state and local authorities to share profiles collected at all levels of government throughout the country — local, state, and national — so long as the profile was collected under applicable legal authority.  By 2004, all 50 states were connected to CODIS, and as of September 2004, CODIS contained 1,885,776 offender DNA profiles.[3]  The number of profiles contained in CODIS has skyrocketed in the past few years, and will continue to do so given the recent state trend toward authorizing the collection of samples from a broader array of individuals.  

            Originally, when DNA laws started popping up in the early 1990s, database inclusion was reserved for people convicted of serious and usually violent felonies.  Inclusion was frequently limited to sexual offenders in particular, based on the assumption that their recidivism rate is high, and that they frequently leave biological evidence at the scene of the crime.[5]  The federal government expanded the categories of people whose DNA profiles could be shared state-to-state via the federal database in 2004, however, with the passage of the Justice for All Act.[6]  This expanded the “serious, violent crime” and “federal qualifying offense” terminology from the DNA Identification Act, so that CODIS could include profiles from all persons convicted of any felony offense — including both violent and property crimes.  The FBI estimates that 1.4 million violent crimes are committed each year, as compared to 10 million property crimes (the majority of which are considered felonies, though qualification varies by state).[7]  As such, this definitional change to include property crimes vastly increased the quantity of profiles that could be shared.        

While a handful of states established DNA laws prior to any federal legislative action, most states’ decisions to expand database usage appear to be responsive to federal prompts.  This is partially due to federal funding opportunities, such as the 2000 DNA Backlog Elimination Act’s provision that grants would be made available to the states in order to facilitate database expansion.[8]  The following graph depicts a timeline of when the states adopted their own DNA legislation, with federal laws noted separately.  The graph demonstrates that the number of states passing new statutes peaked (in 1995-96 and in 2005) after the passage of each comprehensive federal law.

Year Passed: 1989 Nevada; 1990 Virginia;1991 Kansas, Missouri, Oregon;1992 Kentucky;1993 Wisconsin; 1994 Alabama, Connecticut, Delaware, New York; 1995 Montana, Maine, North Dakota, Pennsylvania, West Virginia;1996 Alaska, Arkansas, Idaho, Indiana, Oklahoma;1997 New Mexico, Wyoming; 1998 Rhode Island, Tennessee, Vermont; 1999 Louisiana; 2000 Georgia; 2002 California, New Hampshire, Utah, Washington; 2003 Maryland, Mississippi, New Jersey, South Dakota; 2004 Arizona, Massachusetts, Michigan, South Carolina; 2005 Hawaii, Illinois, Iowa, Minnesota, North Carolina, Ohio, Texas; 2006 Colorado, Florida, Nebraska.

Federal Laws: 1994 DNA Identification Act; 2004  Justice for All Act; 2006 VAWA Renewal.

More recently, however, the legislative trend at the state level has been to expand collection authorization to include samples from those convicted of less serious crimes and people who have not been convicted, but merely arrested.  In or since 2003, for instance, 18 states passed laws amending their existing DNA statutes, allowing for the inclusion of additional categories of individuals, such as “all felons, all criminals, misdemeanants, prostitutes, terrorists, those serving community sentences, immigration violators, and arrestees.”[9]  The rate of state database expansion has been alarming, and is not likely to slow anytime soon. 

Currently, six states have legislation authorizing DNA collection from arrestees: Texas, Louisiana, Virginia, California, New Mexico, and Kansas.  The following graph depicts a timeline of when each state adopted their arrestee legislation.

            An additional state, South Carolina, is on the brink of amending their statute to include arrestees.  Under this proposed law, “[p]eople arrested for felonies and other crimes with longer prison terms would have to submit DNA samples that police could use to solve unrelated crimes.”[11]  As of February 15, 2007, the law has passed the South Carolina Senate and, as of this writing, is being reviewed by the House Committee on Judiciary.[12]  As of 8/11/06, several other state legislatures were currently in the process of reviewing similar amendments:

At least one state has decided, however, to repeal their DNA statute authorizing collection from arrestees.[14]  In the Minnesota case In the Matter of the WELFARE OF C.T.L., Juvenile, which was tried before that state’s Court of Appeals, a juvenile charged with aiding and abetting first-degree aggravated robbery and committing fifth-degree assault challenged the constitutionality of the Minnesota statute which allowed for the taking of a biological specimen for the purpose of DNA analysis.  The court held that statutory provisions that direct law enforcement to take biological specimens from juveniles and adults who have had a probable cause determination on a charged offense but, as here, have not been convicted violate state and federal constitutional prohibitions against unreasonable searches and seizures.[15]  While state courts of appeal decisions are only persuasive authority in other jurisdictions, the fact that one state court was willing to strike down an arrestee statute indicates that others may be amendable to doing the same.

The addition of arrestees to the national database will vastly expand the number of stored DNA profiles, and therefore the number of people whose DNA will be consistently scanned for “cold hits.”  In 2005 alone, there were 14, 094, 186 arrests in the United States, a number that is consistent with years previous.[16]  The following chart illustrates how many additional profiles will be added to the national database just from the 6states (as well as South Carolina, which is on the brink) who have passed arrestee legislation:

Number of Yearly Arrests (Based on 2005 Data)[17]

            Most recently, the U.S. Congress passed a little-noticed renewal of a pre-existing law that will have a massive impact on the DNA database.  The Violence Against Women Act (VAWA), which is geared toward preventing and punishing behavior related to domestic violence and sexual assault, was amended in January 2006.  Part of the renewal of this Act included amending a different law, which addresses the DNA database.  As a result, the federal government is now required to collect DNA samples from persons arrested or non-US persons detained under federal authority.[19]  Thus, anyone arrested by a federal government official — for any reason whatsoever, regardless of the nature of the violation — will have their DNA sampled for the database.  Given that there are approximately 250,000 federal arrests per year and about 1.3 million people detained yearly on suspected immigration violations, this will have an astounding impact on the number of profiles kept in the DNA database.[20]   

            Two border-state Republicans sponsored the 2006 VAWA amendment: Senator Kyl of Arizona and Senator Cornyn of Texas.  In an interview, Senator Kyl indicated that the law was intentionally broad in an effort to encompass illegal immigrants in addition to Americans arrested for federal crimes.[21]  The Senator explained “[s]ome of these are very bad people…The number of sexual assaults committed by illegal immigrants is astonishing. Right now there is a fingerprint system in use, but it is not as thorough as it could be.”[22] However, Peter Neufeld of the Innocence Project, which has not opposed DNA collection from felons, says “[t]here is no demonstrable nexus between being detained for an immigration violation matter and the likelihood you are going to commit some serious violent crime.”  Immigration advocates also worry that the law will deepen social stigmas against immigrants, and argue that equating immigration violations with sexual assault is an outrageous leap.  Furthermore given that this measure will result in an overrepresentation of minorities in the database, advocates worry that “pervasive problems of profiling in the United States will only be exacerbated.”[23]   

            States collecting DNA from broad categories of individuals argue that their collection is justified by the higher number of cold hits they are able to achieve through sweeping database searches, referring to matches of crime scene DNA to DNA of people not previously suspected of the crime being investigated.  However, an increased number of cold hits does not necessarily mean that more crimes are being solved.  Crime resolution requires devoting time and resources to follow through on clues beyond database cold hits.  In fact, all of the resources devoted to DNA testing and database management, which are extremely costly and time-intensive, diverts necessary resources away from other aspects of investigations, like tracking down witnesses, victims, and suspects.[24] 

            Furthermore, DNA databases present immense risk for misuse.  This danger was recently illuminated in Virginia when the Virginia Department of Forensic Science made a number of matches between crime scene DNA and the DNA profiles of people who were mistakenly placed in the state’s DNA database.[25]  These were profiles of people who had been initially charged, but ultimately not convicted of felonies, and thus were not authorized for inclusion in the database under VA law.  The state lab maintains that it is not authorized to notify law enforcement officials about any cold hits they identify because of such people’s mistaken placement in the database.  However, a new law, which so far has passed the Virginia House of Representatives unanimously, would enable the lab to report their findings to police as long as the sample was taken in “good faith.”[26]  At that point, courts would be responsible for making a case-by-case determination as to the admissibility of the DNA as evidence.  While database proponents argue that any match that leads to a crime resolution is a positive development, no matter the route of discovery, mistakes such as these present enormous civil liberties concerns, flying in the face of the 4th amendment right to be free of search and seizure without probable cause.       

In addition to seemingly genuine mistakes like the ones described in Virginia, DNA databases present significant opportunities for the exercise of police corruption.  Sadly, the U.S. criminal justice system is fraught with racial disparities.[27]  Numerous studies illustrate this disproportionate rate of intersection between racial minorities and the criminal justice system.  A 1993 study indicates the racial breakdown of offenses charged for that year:[28]

A comparison to the U.S. census [see chart below] for 2005 indicates that the general population’s racial breakdown does not reflect similar percentages.  As compared to the study, this indicates that non-whites are significantly more likely to be arrested than whites.[29]  These arrest rate disparities do not appear, however, to be linked to higher rates of crime based on race.  A Californian study from the 1990s, for instance, revealed that 64% of white drug arrests and 81% of Latinos were unsustainable, as compared to the fact that 92% of the black men arrested by police on drug charges were subsequently released for lack of evidence or inadmissible evidence.[30]

*Note: the FBI does not categorize Hispanics separately in their statistics.

Racial disparities have been especially prevalent in two areas of crime: violent crime and drugs.  Several statistical studies indicate that there are close links between violent crime and economic and racial inequality.[32]  Poor, segregated neighborhoods with weak community ties and concentrated disadvantage have also been linked to higher rates of homicide, robberies, and burglaries.[33] 

            Statistics also demonstrate that minorities are significantly more likely than whites to have their cars stopped and searched for drugs.  In the state of New Jersey in particular, racial profiling has historically been a serious problem.  In fact, the head of the New Jersey state police was fired for remarks suggesting that minorities could be targeted because they were more likely to use drugs — an assertion that is not factually correct.[34]  After several egregious instances of profiling came to light, the state entered into a consent decree with the Department of Justice barring police from relying on race as a deciding factor in traffic stops and other actions.  

A major study conducted in the state of Maryland between 1995-2000, as a result of a 1995 court order, illustrates the intense race-based disparity in car stops/drug searches.   This study revealed that while whites were slightly more likely to be found carrying drugs, blacks were searched more often — the relative risk of being stopped as a black driver was between 4.7-9.6 times higher than for white drivers, depending on which direction drivers were traveling on the highway being studied.[35]  The Customs Service collects nationwide figures that corroborate this disparity, indicating that “while over forty-three percent of those subjected to these searches were either black or Hispanic, ‘hit rates’ for these searches were actually lower for both blacks and Hispanics than for whites.”[36]  Studies indicate that

[t]he percentages of drug users who are black or white are roughly the same as the presence of those groups in the population as a whole. For example, blacks constitute approximately twelve percent of the country's population. In 1997, the most recent year for which statistics are available, thirteen percent of all drug users were black. In fact, among black youths, a demographic group often portrayed as most likely to be involved with drugs, use of all illicit substances has actually been consistently lower than among white youths for twenty years running.[37]

Studies of juvenile populations, which are included for collection in many DNA database statutes, reflect similar racial disparities.  Juvenile and adult crimes rates are roughly parallel, and nearly all adult felons have a history of juvenile offending.[38] In fact, between 80-90% of children in the juvenile justice system find themselves in the criminal justice system as adults.[39] 

The Department of Justice issued a bulletin in 2003 that addressed the effects of race on police decisions to take juvenile offenders into custody.[40]  The chart below includes their findings on racial disparities in arrest rates:

While this bulletin described a lack of consensus among studies on this topic, it acknowledged that studies “underscore the fact that race is central to the administration of justice in this country” and that “within their scope of responsibility, police decide when to arrest and when not to arrest, and to the extent that this decision-making process results in the arrest of African American youth at a higher rate than white youth, it contributes to overrepresentation.”[42]  The Report fails, however, to come down on one side or the other as whether overrepresentation is the result of racial bias or differential behavior.

            The American Civil Liberties Union (ACLU) also issued a report in 2003 addressing disproportionate minority confinement among Massachusetts juveniles.[43]  This report illustrated the race-based disparate treatment Massachusetts police give to youth.  One police officer stated that “when kids from wealthier (often white) neighborhoods get in trouble, generally the police officer who is involved and the probation department look at the kids and say, “Well, this kid could go to college, could be a doctor or lawyer. We might mess that up if we pull him out of home or school and give him a record.’ When kids of color are involved, we tend to see only the bad behavior and how we need to punish him.”[44]  This kind of decision-making has led to a notable overrepresentation of youth of color in the Massachusetts juvenile justice system, as illustrated by the chart below:

These racial disparities persist after controlling for gender, age, severity of offense and prior record.[46]

As a result of these disparities, minority communities tend to be more skeptical of DNA databases than the rest of the population, and with good reason: in the past 10-15 years alone, we have learned of major police corruption scandals in Dallas, New Orleans, Philadelphia and Chicago.[47]  If these situations were allowed to take place, where police planted such things as cocaine and guns on minority individuals, it would seem that police could easily plant DNA as well.  Given that the integrity of the criminal justice system is ultimately dependent on the equitable application of laws, the possibility for corruption makes it very likely these DNA laws will further disproportionately impact minorities.

Beyond fears about race-influenced police corruption in planting of evidence, there is a more general concern that the trend toward broad inclusiveness in DNA profiling will exacerbate what we know to be the racist tendencies of the criminal justice system.  There is significant concern that the databases will reflect the overrepresentation of minorities that is apparent in the criminal justice system as a whole, exposing minority communities to the negative effects of inclusion in the databases at a higher rate than their white peers. 

When limited in scope, DNA databases provide some utility to the criminal justice system.  Given the unfettered expansion of federal and state databases, however, the appropriate controls to keep this system honest threaten to collapse.  Particularly as databases expand to include arrestees, there is enormous potential to equate arrest with guilt, empowering police officers with criminal decision-making power that our legal system intentionally bestows on more neutral parties, like judges and juries.[48]  Given the potential for police corruption and disparate minority impact, there is much to be feared by this rapid expansion.  It may be too late to prevent damage from being done, given that the racial impacts of the criminal justice system are extremely engrained at this point.  Steps must be taken to prevent database expansion from unnecessarily accessing more and more categories of individuals, particularly arrestees and juveniles.  States that have already enacted arrestee legislation must follow Minnesota’s example by repealing those statutes on the basis that they violate the 4th amendment.  If we are to have any hope that this database expansion will help and not further harm our criminal justice system and the individuals who encounter it, aggressive measures to ensure the integrity of the system must be put into place. 

1. David Glazer, DNA and the Criminal Justice System, xi-xv, xii (David Glazer ed., The MIT Press)(2004).

2. 42 U.S.C. § 14132.

3. Tania Simoncelli & Barry Steinhardt, California’s Proposition 69: A Dangerous Precedent for Criminal DNA Databases, The Journal of Law, Medicine, and Ethics: DNA Fingerprinting & Civil Liberties, 202 (Summer 2006), citingNational DNA Index System, www.fbi.gov/hq/lab/codis/national.htm.

4. Simoncelli & Steinhardt, supra at 202; CODIS Statistics, http://www.fbi.gov/hq/lab/codis/clickmap.htm.

5. Id.

6. 18 U.S.C. § 3771 (2004).

7. Simoncelli & Steinhardt, supra at 202.

8. 42 U.S.C. § 14135(a) (2006).

9. Id.

10. Cal.Penal Code § 296; Kansas: 2006 Kansas Laws Ch. 171 (H.B. 2554); Louisiana LA R.S. 15:609; New Mexico N. M. S. A. 1978, § 29-16-10; Texas Tex. Gov't Code Ann. § 411.1471; Virginia Va. Code Ann. § 19.2-310.2:1.

11. The Associated Press, Bill calling for DNA sampling after arrests moves to Senate floor, Jan. 24, 2007.

12. South Carolina Legislature Online, General Bill S 0142, http://www.scstatehouse.net/.  This list is not exhaustive – several other states have bill proposals in progress for similar statutes.  Those listed here appear to be the closest to passage at this writing.

13. 2006 DNA Expansion Bills, http://www.dnaresource.com/.

14. Tennessee also rescinded a DNA statute, but for cost purposes. 

15. In the Matter of the WELFARE OF C.T.L., Juvenile, 722 N.W.2d 484 (Minn. App. 2006).

16. Crime in the United States 2005, Estimated Number of Arrest, http://www.fbi.gov/ucr/05cius/data/table_29.html; National Center for Juvenile Justice, FBI Arrest Statistics for All Ages, 1994-2004, http://ojjdp.ncjrs.org/ojstatbb/ezaucr/asp/ucr_display.asp.

17. Crime in the United States 2005, Arrests by State,http://www.fbi.gov/ucr/05cius/data/table_69.html.

18. State statutes have varying requirements for which property and violent crimes result in DNA retention.  This estimate does not account for individual statute variations, but rather illustrates how many DNA profiles would be retained if all property and violent crime arrests resulted in DNA profile retention.

19. Pub. L. No. 109-162, 119 Stat. 2960 (2006).

20. Tania Simoncelli, Concerns with Ever-Expanding DNA Databases, ACLU and Innocence Project Strategy Session, PowerPoint Slide 5 (October 2006).

21. Julia Preston, U.S. Set to Begin a Broad Expansion of DNA Sampling, N.Y. Times, February 5, 2007.

22. Id.

23. Id.

24. Simoncelli & Steinhardt, supra at 210.

25. Frank Green, DNA-match bill goes before Senate panel: Proposal allows police access to improperly taken genetic samples, Richmond Times-Dispatch, February 18, 2007.

26. Id.

27. Simoncelli & Steinhardt, supra at 205, citing T. Duster, Backdoor to Eugenics, 2d ed., (New York: Routledge, 2003): at 146-63.

28. Robert J. Sampson and Janet L. Lauritsen. Racial and Ethnic Disparities in Crime and Criminal Justice in the United States, Crime and Justice Vol. 21, 311, 326 (1997).

29. Data illustrating the racial breakdown of arrests has been largely unavailable in recent years.  This 1993 study is the most recent study reflecting such information that could be found.  Several studies of this nature were conducted around this time in response to changes during the Reagan Administration, but little has been collected since.  As such, while this data is out of date, it is the most comprehensive information available for adult populations.

30. Simoncelli & Steinhardt, supra at 205, citing J.G. Miller, “From Social Safety Net to Drag Net: African American Males in the Criminal Justice System,” Washington & Lee Law Review 51 (1994):479-90.; S. Nazano, “Odds Grim for Black Men in California,” Washington Post,  December 12, 1993, at A23.

31. 2005 American Community Survey.

32. Bruce Western, Punishment and Inequality in America, 36 (2006).

33. Id.

34. Barry Steinhardt, DNA and the Criminal Justice System 173-196, 187 (David Glazer ed.)(2004).

35. Katherine Y. Barnes & Samuel R. Gross, Road Work: Racial Profiling and Drug Interdiction on the Highway, Mich. L. Rev., Vol. 101, No. 3,  651-754, 707 (2002).

36. David A. Harris, The Stories, the Statistics, and the Law: Why ‘Driving While Black’ Matters,84 Minn. L. Rev. 265, 296 (1999).

37. David A. Harris, THE STORIES, THE STATISTICS, AND THE LAW: WHY "DRIVING WHILE BLACK" MATTERS, 84 Minn. L. Rev. 265, 296 (1999).

38. Western, supra at 39.

39. Carol Rose, Racism’s role in the state juvenile justice system, The Boston Globe, June 7, 2003.

40. Department of Justice, Race as a Factor in Juvenile Arrests (April 2003).

41. Id.

42. Id.

43. Robin Dahlberg for the ACLU, Disproportionate Minority Confinement in Massachusetts: Failures in Assessing and Addressing Overrepresentation of Minorities in the Massachusetts Juvenile Justice System (May 2003).

44. Rose, supra.

45. Dahlberg, supra at 7.

46.Id. at 2.

47. Troy Duster, Explaining Differential Trust of DNA Forensic Technology: Grounded Assessment or Inexplicable Paranoia, Journal of Law, Medicine, and Ethics, 293, 294 (Summer 2006).

48. Steinhardt, supra at 187.