Retreating Justice
Proposed Expansion of Federal DNA Database Threatens Civil Liberties
by Tania Simoncelli

On November 5, 2003, the U.S. House of Representatives passed by a vote of 357-67 a bill entitled the “Advancing Justice Through DNA Technology Act of 2003.” Contained within this bill is a version of the long-awaited Innocence Protection Act (IPA), which would grant any inmate convicted of a federal crime the right to petition a federal court for DNA testing to support a claim of innocence. State legislation of this sort has resulted in 141 postconviction DNA exonerations to date,(1) including the release of 13 inmates from death row.(2) A federal law to ensure national access to such testing would represent a meaningful step towards advancing justice.

Two other provisions of the bill, however, would do just the opposite. First, the bill calls for expansion of the Combined DNA Index System (CODIS), a database maintained by the FBI which allows DNA profiles to be shared and compared within and between states. HR 3214 would effectively authorize inclusion of DNA profiles taken from persons who have not been convicted of a crime. Second, the bill would extend indefinitely the statute of limitations for some cases involving DNA evidence.

A suspect could then be identified and tried for a crime any number of years after it has been committed. Ironically, these provisions, if enacted, could create a new round of innocence cases for people mistakenly convicted on DNA evidence that is no longer available, or is unsuitable for retesting.

Justice reform advocates should not allow the Innocence Protection Act to be used as a vehicle for expanding the federal government’s power to collect, analyze and use information against its own citizens. If HR 3214 becomes law, it will allow the FBI to take a big step towards altering the purpose of its DNA database from criminal investigation to population-level surveillance. In addition, it will likely foster a criminal justice system that relies more on “cold hits” than thorough investigations, a more error-prone system which undermines a defendant’s right to a fair trial.

Expansion of CODIS

The DNA Identification Act of 1994 authorized the FBI to establish a national DNA index for law enforcement purposes. By 1998, the resulting software system, CODIS, connected all 50 state databanks. CODIS allows state and local authorities to share DNA profile information collected at local, state and national levels. Today, CODIS includes DNA profiles from approximately 1.5 million convicted offenders.(3) This includes DNA profiles from persons convicted of qualified federal offenses, currently limited to sex offenses and other serious, violent crimes, and those convicted of qualifying state offenses.(4)

HR 3214 seeks to expand CODIS in two ways. First, it broadens the definition of a “qualifying federal offense” to include DNA profiles from persons convicted of “any felony.”(5) Second, the bill would allow state authorities to upload DNA profiles of persons beyond those convicted of a crime, including “persons who have been indicted or who have waived indictment for a crime” and “other persons whose DNA samples are collected under applicable legal authorities, provided that DNA profiles from arrestees who have not been indicted and DNA samples that are voluntarily submitted solely for elimination purposes shall not be included.”(6)

The significance of this can only be understood within the context of the historical progression of state databank laws. While the earliest state statutes of the 1990’s were explicitly limited to profiles from sexual offenders — on the theory that they are likely to be recidivists and that they frequently leave biological evidence — the past decade has witnessed a dramatic expansion of databases in both size and function. Today, thirty states collect DNA from all felons, thirty-two from juvenile offenders, and twenty-three from those who commit “misdemeanors.”(7) In the past couple of years, a few states have started to move beyond criminals. Three states — Virginia, Louisiana, and Texas — have authorized the collection of DNA from arrestees. The rate of state database expansion is not likely to slow. In 2003, alone, eighteen states passed laws to amend their statutes to include more categories of people in their databases, such as all felons, all criminals, misdemeanants, prostitutes, terrorists, those serving community sentences, immigration violators, and arrestees. Seven state legislatures considered legislation to broaden their databases to include arrestees. A ballot initiative currently circulating for signature would expand the California database to include all persons, including juveniles, convicted or arrested for any felony offense. (8)

The FBI has encouraged the states to broaden their legislation to include all felons, (9) so HR 3214’s proposal to expand the federal database in this manner is not surprising. Nevertheless, the sheer magnitude of the potential growth of the database from this change is worth noting. According to the FBI, about 1.4 million violent crimes are committed each year in the United States. By contrast, over 10 million property crimes are committed, the majority of which would be considered felony offenses under state laws. In 2002, U.S. law enforcement made an estimated 1.6 million property crimes arrests. Felony offenses would also include some portion of crimes in other categories, such as forgery, fraud, embezzlement, vandalism, and drug abuse, which account for over 2 million additional arrests each year. (10)

Allowing the FBI to include DNA collected from anyone under applicable state authorities will inevitably result in a database that goes far beyond convicted criminals. Last year, Louisiana passed a law requiring DNA samples from new police applicants. (11) In 1999, then-New York City Mayor Rudolph Giuliani proposed collection of DNA samples from all newborns for both medical and law enforcement purposes. (12)

A similar proposal has been put forth in Michigan. (13) It is not far-fetched to imagine that states may decide to routinely collect DNA from day care providers, public school teachers, immigrants, truck drivers, or any other category of people whose catalogued DNA profile might be justified on the basis of safety precautions or merely identification purposes. Storing DNA taken from unsuspected individuals in a criminal database undermines presumptive innocence and sets a chilling precedent for data collection by the government of its citizens. In addition, it violates the rights of people to be secure and protected from “unreasonable searches and seizures” as is guaranteed by the Fourth Amendment to the Constitution. In general, U.S. Courts have allowed collection of DNA from convicts because of their “diminished expectation” of privacy.(14) Still hotly debated is whether that “diminished expectation” should be forever, as is the case with a permanent database that is used in countless investigations, and whether the extent of that diminished privacy depends on the severity of the crime committed. What does seem clear is that persons who have not been convicted of a crime do not belong in a criminal DNA database.

Allowing the addition to CODIS of DNA from persons who have been “indicted or who have waived indictment for a crime” could result in the addition of innocent people or those convicted of less severe crimes. Persons who are charged with a crime are not always convicted. Sometimes they are released. Often, they are ultimately convicted of a crime of lesser severity than that for which they were indicted, one that perhaps would not have resulted in their inclusion in the database.

Finally, the bill fails to disallow inclusion of DNA profiles from juveniles. This means that the juvenile offender profiles currently collected in thirty-two states would wind up in CODIS. Permanent retention of juvenile offender information is in sharp contrast to the long-standing principle of rehabilitation in the juvenile justice system.

Perhaps the most troubling aspect of this proposal to expand CODIS is that it is not accompanied by long overdue privacy and discrimination protections. Unlike a fingerprint, a DNA sample contains a person’s entire genetic code. As researchers probe the connections between genes and race, behavior, and disease, the potential for DNA databank abuse escalates. Some of these concerns could be met by indexing only DNA profiles and destroying the biological samples; yet, to this day, only one state requires that DNA samples be destroyed after profiling.(15)

Instead, 29 states require that the samples be retained in a repository and 24 states explicitly allow DNA samples to be used for a variety of other non-law enforcement purposes. For example, Massachusetts law allows for the disclosure of DNA records for “advancing other humanitarian purposes.” Alabama allows access to its DNA population statistics database “to assist . . . medical research.” New Jersey law states that DNA test results may be used “for purposes as required for federal funding.” Furthermore, few laws have been enacted — and certainly none at the federal level — to effectively prohibit genetic discrimination by employers, insurers, or medical care providers.

Extending the Statute of Limitations

If enacted, HR 3214 would extend indefinitely the statute of limitations for cases involving a felony offense and where DNA evidence is available, so that it would not begin to run until a person is implicated by DNA testing.(16) This provision would apply retroactively to any offense committed whose applicable limitation period has not yet expired.(17)

As with database expansion, other recent proposals to whittle away the statutes of limitations have appeared at both the state and federal levels. In 2003, three states — Louisiana, New Mexico, and Utah — enacted legislation extending the statutes of limitations for certain cases involving DNA. A federal law enacted last year authorized “John Doe DNA Indictments” for federal sexual assault crimes which effectively doubled the statute of limitations for these cases.(18) Statutes of limitations are essential for ensuring fairness to a defendant. With the passage of time, documents are lost, memories fade, and witnesses disappear. Statutes of limitations attempt to address this inherent unfairness by requiring that lawsuits be brought within a certain period of time.

An extension of the statute of limitations might be considered warranted for DNA cases in the event that DNA evidence was both permanent and incontrovertible. Permanence of DNA samples would allow the defendant to request retesting of the sample at any time after the biological evidence was profiled and a “match” determined, in the case that an error occurred or improved DNA testing methods might produce a more complete analysis. If the DNA test were incontrovertible, then the results of the test or re-test could be accepted as truth, and any other evidence to which the defendant no longer has access would be insufficient for overturning a clear “match.”

Neither of these conditions are met by DNA testing. While techniques for preserving DNA samples have improved over the years, DNA cannot be maintained indefinitely. The actual rate at which a DNA sample degrades depends upon the cell type, the amount of DNA present, and the conditions under which it is preserved, but it is inevitable; and even partially degraded samples are difficult to type, with attempts to do so more prone to error.

Neither is DNA testing infallible, despite what is often portrayed in both the media and the courtroom. (19) While it can be highly accurate when done right, the notion that DNA testing is error-free is wrong in both principle and practice. Any scientific procedure that involves human execution and judgment has some probability of error. Errors in DNA testing can and have occurred during any of the three main stages of the DNA testing process: collection and handling, analysis, and reporting of results. Examples of cases where each of these error types has resulted in the conviction and incarceration of innocent people are provided in the sidebar accompanying this article.

A number of problems can occur in the collection, handling and storage of DNA samples. Several cases have been uncovered where DNA samples were actually switched or mislabeled, either by law enforcement or laboratory personnel. Sample switch errors have led to false incriminations in rape cases in Las Vegas, Philadelphia, and San Diego. In addition, samples can be contaminated, either before or after collection, especially if they are not stored under proper conditions.

Even trace amounts of outside DNA can complicate a DNA analysis. Ironically, as DNA testing becomes more sensitive, inadvertent transfer of minute traces of DNA becomes a greater concern. Errors associated with the DNA analysis itself are perhaps the least recognized. Many people assume that DNA testing is “objective,” but significant ambiguity can arise in interpreting the computer-generated graph displays that are produced in DNA testing.(20) Test results are especially difficult to interpret when a mixture of two or more sources of DNA are present.

In these cases, it can be difficult to “sort” the alleles among their respective contributors, and the presence of one source of DNA can mask that of another. Degradation may also cause one or more sources to go undetected. The potential for error in DNA testing may be exacerbated by the context in which labs carry out their work. Lab technicians do not typically “blind” themselves to the government’s expected or desired outcome. Studies have revealed lab notes indicating that analysts are familiar with facts in their cases and are aware of which results will help or hurt the prosecution. For example, one set of notes stated, “Death penalty case. Need to eliminate [other individual] as a possible suspect.”(21)

Error rates are also not the same for all cases. For example, error rates are higher in situations where DNA profiles are created from samples that are mixed or partially degraded. Also, even a small potential for error can be significant in cases where there is little or no other evidence against a suspect, as in “cold hit” cases. Professor William Thompson of the Department of Criminology, Law & Society at the University of California, Irvine, has shown that even a false positive probability as low as 1 in 10,000 can seriously undermine the value of DNA evidence, and create a significant risk of false incrimination, when the other evidence against the suspect is weak or nonexistent.(22)

Failure to report results of DNA tests in their entirety and the reporting of misleading or inaccurate statistical information has resulted in the conviction of innocent people. There are several known cases where lab analysts have greatly exaggerated the statistical significance of their findings, or reported matches when none was found.

Last year, Houston’s crime lab was shut down after an independent audit revealed widespread problems associated with the handling and analysis of DNA evidence. Thousands of cases are being reviewed; 375 cases are slated for retesting. One person, Josiah Sutton, has been released from jail, and many of the cases re-tested so far have produced inconclusive results that can be explained by degradation.(23) Labs in Fort Worth, Oklahoma City, Baltimore, Phoenix, W. Virginia, Montana, and Washington are also undergoing investigation and review of hundreds of cases. While the problems uncovered in these labs are thought to be the exception rather than the rule, these cases should remind us of the fallibility and limitations inherent in DNA testing and the need for careful scrutiny, particularly in cases that hinge on DNA evidence alone.

Since DNA evidence is neither permanent nor incontrovertible, its use in criminal investigations does not justify the gutting of longstanding legal protections to defendants any more so than any other forensic technology. Tolling the statute of limitations indefinitely, even for a narrow range of cases, establishes a dangerous precedent that would strip defendants of their ability to raise fair questions about the value and admissibility of DNA evidence.

Cold Hits and False Positives in Light of HR 3214

A law that expands CODIS to ever-broadening categories of individuals and extends indefinitely the statute of limitations for DNA cases would encourage a shift in crime solving from thorough investigation to a heavy reliance on quick and easy “cold hits.” Such cases are precisely those most prone to error. Generating suspects by "matching” a DNA profile of evidence from a crime scene with one of hundreds of thousands of DNA profiles, many years after the crime was committed, would likely rest solely on a DNA “match.” Alternative explanations for that “match” may be nearly impossible to argue. Errors that may have occurred in sample collection and analysis might be impossible to uncover when the lab analysts and law enforcers involved in that part of the process are no longer around. A crucial witness who might have been able to confirm an innocent explanation for inadvertent FNA transfer may be dead or missing. Re-testing of the biological sample may not be possible if the sample was not preserved (24) or in cases where it is completely degraded. But even where it has been retained, partial degradation may render results of re-testing ambiguous and particularly susceptible to error.

Provisions to expand the federal DNA database and to eliminate the statute of limitations for cases involving DNA do not belong in a bill that purports to “advance justice.” Ironically, these measures, if enacted, could do just the opposite by creating a new round — and new class — of innocence cases, and lowering incentives for crimes to be solved in a timely manner. As tempting as it may be to look at DNA as a “magic bullet” in criminal justice, an over-reliance on this technology could create more problems than it seeks to fix. Justice reform advocates should work to ensure that DNA testing remains only one of many crime-solving tools and that steps are taken to minimize the possibility of errors. As part of this effort, the public should ask the Senate to remove these troubling provisions from the “Advancing Justice Through DNA Technology Act” when the bill is considered in coming months.

Tania Simoncelli is a Science & Technology Fellow for the American Civil Liberties Union.

FOOTNOTES
1 See http://www.innocenceproject.org/
2 See http://www.deathpenaltyinfo.org/article.php?scid=6&did=109
3 See http://www.fbi.gov/hq/lab/codis/national.htm
4 Each state determines what qualifies as an offense for inclusion in the federal database. Today, many states include all felonies.
5 See H.R. 3214, “Advancing Justice Through DNA Technology Act of 2003,” Title I, Section 103.
6 Ibid.
7 See http://www.dnaresource.com/Table%20of%20State%20DNA%20Laws%20-%202003.pdf
8 See “DNA Fingerprint, Unsolved Crime and Innocence Protection Act,” File No. SA2003RF0065, Submitted to the California State Attorney General’s Office. See http://www.ag.ca.gov/initiatives/pdf/sa2003rf0065.pdf.
9 See http://www.fbi.gov/hq/lab/codis/brochure.pdf. “The FBI hopes that eventually, all 50 states will include all felony offenses.”
10 All crime statistics were taken from DOJ/FBI “Crime Statistics in the United States 2002.”
See http:// www.fbi.gov/ucr/cius_02/html/web/index.html
11 See http://www.dnaresource.com/2003%20DNA%20Expansion%20bills.pdf
12 See, for example Declan McCullagh, “What to Do With DNA Data?”, Wired News, Feb. 6, 1999, available at http://www.wired.com/news/print/0,1294,32617,00.html.
13 See Michigan Communication on Genetic Privacy & Progress, Final Report & Recommendations (1999).
14 See Debra A. Herlica, “DNA databanks: When has a good thing gone too far?” Syracuse Law Review. 951 (2002).
15 The state that requires destruction of the samples is Wisconsin, yet, to date, no samples have been destroyed. See Jonathan Kimmelman, “The promise and perils of criminal DNA databanking,” Nature Biotechnology, Vol. 18 (July) 2000, pp. 695-696.
16 See H.R. 3214, the “Advancing Justice Through DNA Technology Act of 2003,” Title I, Section 104.
17 Ibid.
18 See S. 151, “Protect Act,” Section 610.
19 For example, a number of experts have testified that false positives in DNA testing are impossible, and this sentiment has been repeatedly stated in appellate court opinions. See William Thompson et al., “How the probability of a false positive affects the value of DNA evidence,” Journal of Forensic Science, Vol. 48 No. 1, January 2003, available at: http://www.astm.org.
20 For a detailed discussion on computer-generated graphs in DNA typing, see: William Thompson et al., “Evaluating forensic DNA evidence: Essential elements of a competent defense review,” Champion, April 2003.
http://bioforensics.com/articles/champion1/champion1.html.
21 Ibid.
22 See William Thompson et al., “How the probability of a false positive affects the value of DNA evidence,” Journal of Forensic Science, Vol. 48 No. 1, January 2003, available at: http://www.astm.org.
23 Personal communication with William Thompson, Department of Criminology, Law & Society, University of California in Irvine.
24 HR 3214 calls for preservation of biological samples for cases where conviction has occurred and someone is serving time for the crime, but fails to call for indefinite preservation of biological samples for open cases.