Police Expanding Powers By Collecting DNA From Arrestees

by Marcelo Ballve

(PNS) -- Genetics and crime fighting are becoming as intertwined as the DNA double helix. But that quickly evolving collaboration has taken a dangerous new twist.

Three states -- Virginia, Louisiana and Texas -- already require the collection of DNA samples from arrestees as part of the booking process, even before suspects go on trial. Critics see a worrying erosion of due process and what they call "DNA privacy" -- the right of citizens to keep genetic information private.

Nationwide, "DNA data-banking" policies vary, but over 30 states already require DNA collection from felons. California requires DNA sampling only from those convicted for violent felonies and some sex crimes.

But some want to go further, and take DNA samples from arrestees. Prop. 69, the "DNA Fingerprint" initiative, will be on November's ballot and already enjoys broad bipartisan support. If voters pass it, California -- a bellwether state for criminal justice trends -- will have among the country's most sweeping DNA sampling policies.

Proposition 69 already has momentum. On July 7, Republican Gov. Arnold Schwarzenegger announced his support. Attorney General Bill Lockyer, a Democrat, also backs it.

If approved, DNA collection would go into effect immediately for suspects arrested for murder or rape. They would have their DNA sampled by mouth swabs as part of the booking process. Beginning in 2009, samples would be taken from individuals arrested for a felony crime in California.

Critics say this is a blatant violation of the principle that one is innocent until proven guilty. Although arrestees who are not convicted can later have their DNA removed from databases, this would involve a bureaucratic process.

The Bush administration is keen on expanding the FBI's DNA database, known as CODIS, which pools together state databases. Under current law, only the DNA profiles of convicts can be placed in the federal database. Last year, U.S Justice Department officials spoke with members of Congress to lift that restriction so that the DNA of some arrestees, including juveniles, can also be made available through the database.

Advocates of "DNA Fingerprinting" claim that even if innocent people are sometimes forced to give DNA, the practice is no more risky than the traditional ink or digitally scanned fingerprint that people nowadays submit to routinely. They also say that only a portion of the DNA sample submitted is actually uploaded to the database.

Opponents reply that law enforcement still holds the entire sample. Unlike a fingerprint, that puts the most intimate information that an individual possesses at the government's disposal.

"Fingerprints...are useful only as a form of identification," Barry Steinhardt of the American Civil Liberties Union told the National Commission on the Future of DNA Evidence. "The DNA samples that are being held by state and local governments can provide insights into the most personal family relationships and the most intimate workings of the human body."

Police DNA databases have expanded rapidly. In 2003 alone, over a dozen states changed their laws to expand the scope of their DNA collection. When first proposed, most plans called for the compulsory sampling of convicted sex offenders. Today, three states take DNA from arrestees and similar plans are showing up on ballots and rattling around in state capitals nationwide.

Since a bigger database increases the possibility of a match with genetic material from a crime scene, law enforcement hunger for DNA continues to grow -- even going beyond arrestees.

One major fear is law enforcement will begin using genetic evidence to create a 21st century version of racial profiling. Already, police in Charlottesville, Va., had to face accusations that they were casting a "DNA dragnet," aggressively collecting saliva samples from African Americans in a serial rape case.

Bruce Harrington, the California proposition's sponsor, has deeply personal reasons for seeking a large DNA database. A serial rapist and murderer killed his sister and brother-in-law in 1980 in a case that remains unsolved.

But as the entire nation witnessed during the trial of O.J. Simpson, strong DNA evidence is no sure-fire legal tool. Genetic evidence does not "prove" innocence or guilt. Supposedly infallible DNA evidence is subject to human error through mishandling, contamination and misinterpretation. A skillful lawyer can shatter a case built on a DNA "match."

The Council for Responsible Genetics, a Cambridge, Mass.-based nonprofit, issued a proposed "Genetic Bill of Rights" in 2000. Article 7 says all people should be able to prevent the taking or storing of bodily samples for genetic information without their voluntary informed consent.

In proposals like Proposition 69, U.S. society is setting precedents for how highly this right will be valued, or if it will be respected at all. The problem is not the use of DNA in courtrooms, in legal actions to exonerate the innocent or as a part of police work. Those uses already are common, often with the consent of those submitting DNA. The issue is who will be forced to give up their genetic information. If arrestees have the right to remain silent, shouldn't they also have the right to keep their DNA to themselves?