The United States and the Development of DNA Data Banks

20/02/2006

Summary*

Since the viability of using DNA as an investigative tool was realised in the early 1990s, individual States began to implement measures to mandate for the circumstances in which DNA samples could be collected and retained. Differences in the respective legislative powers exist across the spectrum of States, although broadly speaking each initially required that serious sexual and violent offenders provide samples of DNA for storage.

Statutory authority for the creation of a national (federal) DNA database was provided by the Violent Crime and Law Enforcement Act 1994 and the resulting database was the National DNA Index System (NDIS). In the early stages of the database, there were four categories of DNA information: profiles from convicted offenders, from crime scenes, from victims of crime and from unidentified human remains.

Although each State exercises differing legislative powers relating to DNA profiling, the national database is compatible for their respective lawful purposes. At a minimum this will constitute uploading profiles derived from serious sex or violent offenders. To enable States to effectively exchange information and search the database, the FBI developed a programme called the Combined DNA Index System (CODIS) which would ensure consistency across the methods of profiling and uploading DNA profiles employed by the individual States. The FBI Laboratory provides the CODIS software, installation, training and user support to federal, State and local forensic laboratories. CODIS is implemented as a "distributed database with three hierarchical levels"[1] - local, State and national levels. All DNA profiles originate from the local level and then 'flow' to the State level, where laboratories within States may exchange DNA profiles, and ultimately to the national level.

Table of Contents

The Federal Level Database

State Level Databases

Uses of DNA Databases in the United States

Arguments against the Constitutionality of DNA profiling and Concerns regarding its increasing use

Concerns relating to DNA Databases

Conclusion

The Federal Level Database

In addition, as in the UK, the DNA profiles created from DNA samples are produced by Short Tandem Repeat (STR) analysis and do not currently reveal information relating to medical conditions[2].

In order to ensure compatibility and accessibility of NDIS across the fifty States, the FBI created the Combined DNA Index System (CODIS) ö a software programme that enables federal, State and local laboratories to store, exchange and compare DNA profiles electronically. "The FBI Laboratory provides this CODIS software, installation, training and user support to other federal, State and local forensic laboratories at no charge"[3]. CODIS first commenced in 1990 as a pilot programme using a handful of State and local laboratories, but has significantly expanded and is now deployed in laboratories across all fifty States.

At December 2005, the National DNA Index System contained 2,952,820 profiles ö comprised of 126,315 forensic (scene of crime) profiles and 2,826,505 convicted offender profiles[4]. In relation to samples stored from identified individuals, the NDIS only retained profiles taken from offenders convicted of sexual offences and other violent crimes. However, the advancement of DNA technology and its increasing application has influenced a surge in the number of circumstances where individuals may have DNA samples taken from them and more recently, the circumstances within which these may be retained ö both at the State level and the federal level.

The Justice for All Act 2004 enacted in October of that year expanded the national DNA database by allowing for the inclusion of virtually any DNA information that any State chooses to collect. Two exceptions were included:

1. DNA profiles of arrestees who have not been charged in an indictment or an information may not be uploaded;
2. Samples that are voluntarily submitted for the purposes of elimination from a scene of crime sample may not be uploaded.

The changes in the legislation thus allow for the retention in the NDIS of profiles from persons who have been charged in an indictment or information, even if the charges are eventually dropped or not pursued.

In addition, a further significant change enabled by the Justice for All Act affects the qualifying offences for entry onto the National DNA database. Previously these were limited to sex offences and other serious violent crimes, but are now amended to include "any felony"[5]. The resulting increase in eligibility for entry onto the NDIS system may well result in significant growth to the database in light of the continuing trend amongst States to also implement similar changes in their respective territories[6]. In 2004, FBI statistics revealed that 590,258 arrests were made for violent crimes, 1.6 million arrests for property crimes and 1.7 million arrests for drug abuse violations[7].

In September 2005, a further initiative to expand the collection practice was added by the Senate Judiciary Committee[8] to the Violence Against Women Act 2005[9]. Introduced as the DNA Fingerprint Act 2005 the amendment "will remove current barriers to maintaining data from criminal arrestees, making it easier to include their DNA samples in the National DNA Index System (NDIS)[10]".The DNA Fingerprint Act is intended to make the following changes[11]:

1. It eliminates Federal statutory restrictions that prevent an arrestee's profile from being included in NDIS at the same time their fingerprints are taken and uploaded onto the national database. Previously DNA could not be uploaded until the arrestee was charged with an information or indictment.
2. Prior to the amendment, the burden was on the State to remove an arrestee sample from the NDIS if the arrestee was later acquitted or if the charges were dismissed. Under the new legislation, this burden will shift onto the arrestee, who will be required to file a certified copy of a final court order establishing that all indexable charges have been dismissed, resulted in acquittal or that no charges were filed.
3. It allows expanded use of Federal DNA grants, which previously were only for building databases of convicted felons. The DNA Fingerprint Act will allow these grants to be used to analyse and upload any DNA sample whose collection is permitted by State or local law.
4. The Act allows the Federal Government to take and retain DNA samples from Federal arrestees and from non-U.S citizens or permanent residents who are detained under Federal authority. The Act gives the Attorney General the authority to issue regulations requiring the collection of such DNA profiles including requiring other Federal agencies to collect these: e.g. immigration agencies.

While the content of the National DNA Database is reliant on the DNA profiles that are submitted by the individual States, increasingly these States are changing their respective legislative provisions to allow for retention of samples from individuals who have been charged and not convicted.

The affects of the Justice for All Act 2004 and the DNA Fingerprint Act 2005 will not manifest immediately, however the domino effect of legislative change will in the next decade hugely increase the DNA profiles that are filtered via State databases to the NDIS. This is best illustrated in the case of California, where legislation concerning DNA collection and retention was recently amended to allow, from 2009, the collection and retention of samples from all arrestees who are charged with an offence as a result of an indictment or an information.

State legislation is discussed in further detail below.

State Level Databases

The earliest State legislation mandating criminal DNA databases was enacted in the early 1990s, although by 1998 each of the fifty States had authorised criminal DNA databases[12] and were taking samples from some convicted felons. Originally, States unanimously authorised the retention of DNA samples and profiles for serious violent offences and sexual offences, on the premise that such offences were largely committed by recidivists. However, successes in the application of DNA as an investigative tool and its utility in speculative searches, have led to calls for the expansion of databases in many States, even to the extent that then-New York Mayor Rudolph Giuliani suggested genetic samples should be taken from everyone at birth[13]. By 2002, twenty two States practiced laws that allowed for the collection of DNA samples from those convicted of any felony.

This section will briefly outline a few circumstances emanating from the widely disparate State laws and use this to sketch the future path of DNA profiling across the United States. However, at this juncture, we would like to commend the American Society of Law, Medicine and Ethics (ASLME, see www.alsme.org) for their leading research into the activities of each of the fifty States through their "DNA Fingerprinting and Civil Liberties" project. Their work provides a highly useful service for individuals interested in further investigating the activities in each State. Of particular use is the 'Survey of State DNA Databases'[14]. The following statistics are derived from that report:

▪ With regard to adult convicts:

∙ All State DNA Database statutes are 'directed at certain sex and violent offenders';

∙ Thirty-four States have expanded their powers to adopt "all felony" provisions so that any individual convicted of a felony is required to submit DNA for the purposes of profiling;

∙ At least thirty-eight States also include some misdemeanours[15] as qualifying offences. In New Jersey, the qualifying offences are 'any crime', which is defined as any offence with a sentence of six months or more.

With regard to juveniles:

Twenty-eight States also include the DNA profiles of juveniles 'adjudicated delinquent', which means that they were adjudicated by the State juvenile system for what would constitute a qualifying offence if they were an adult. Twelve of these States do however limit the scope of qualifying offences with respect to juveniles.

With regard to arrestees and suspects:

Four States allow for the involuntary taking of samples from arrestees - California, Texas, Louisiana and Virginia. Although each of these States exercise "all felony" provisions, only Louisiana regularly collects DNA samples from arrestees for all felonies but in certain situations Texas will;

Despite uploading DNA profiles to the database pre-conviction, the respective statutes in Louisiana, Texas and Virginia do require that permanent retention in the DNA database is dependent upon a finding of guilt, and so DNA information should be expunged on acquittal or dismissal of the charges. It is therefore only California that authorises the inclusion of a DNA profile from a suspect indicted for an offence, but not convicted, into the DNA database and this will take effect from 2009.

With regard to expungement generally:

Only thirty-eight States include a variety of provisions detailing the process for expungement ö this process is for individuals who have been convicted of a qualifying offence but have successfully appealed;

∙ However thirty-three of these States require that the appellant initiate the process and only Texas operates a statutory provision requiring that the appellant is informed of his right to the expungement of his record after receiving an acquittal.

Sample Retention:

Twenty-eight States are silent on the issue as to whether samples should be retained or destroyed once they have been analysed and a profile has been created;

The State of Wisconsin exercises the only statute that requires the destruction of all offender samples after analysis has been conducted;

Conversely, Nebraska, Connecticut, Georgia and Virginia require that samples from qualified offenders be permanently retained and Arizona requires retention for 35 years;

It is probable, as a result of the provisions detailing expungement and the duty on the appellant to instigate this process, that DNA samples are likewise retained in other States.

The State most worthy of our scrutiny is California. Its recent legislative changes involve a significant broadening of the powers of collection. Their broad expansion of the DNA Database provisions, but also because changes made to Californian law are "especially important due to the State's propensity to establish national legal precedent", particularly as a result of its vast size and population[16].

Established in 1998, California's database was originally designed to accommodate the DNA profiles of individuals convicted of serious violent crimes. The legislative changes to the operation of the database were approved by vote in November 2004 after substantial campaigning by a Californian attorney whose brother and sister-in-law were victims of a serial killer in 1980. The changes, manifested in "The DNA Fingerprint, Unsolved Crime and Innocence Protection Act", also known as "Proposition 69", expand the provisions in this regard to include retention of samples from[17]:

• All persons including juveniles convicted of any felony offence;
• All persons including juveniles, convicted of any sexual offence, including misdemeanours;
• All persons including juveniles, who are in prison or on probation or parole with a record of a past or present conviction of any of the qualifying offences;
• From 2009, all adults arrested for any felony offence.

California's 'Proposition 69' also changes the law with regards to speculative searches and expungement. The DNA profile derived from a suspect's sample may now be searched against any available database regarding any case or investigation ö a significant expansion from its once limited use to the relevant investigation for which the sample was taken. Further, it was originally the duty of the Californian Department of Justice to routinely destroy files that should not be on the database. However the burden is now placed on the wronged individual to instigate a complex procedure to request removal.

As mentioned above, California is not alone in expanding their legislation beyond the pre-requisite of a conviction. The States of Virginia and Texas both maintain provisions that allow for the taking of a sample from an individual arrested for certain felonies and Louisiana has a provisions allowing for DNA testing from arrestees for any felony[18]. Furthermore, in 2003 seven States considered expanding their DNA capabilities to include arrestees[19].

Uses of DNA Databases in the United States

The clear purpose of DNA Databases was to 'aid and enhance law enforcement' which, as was the case in the United Kingdom, justifies the more 'primitive' models which only incorporated DNA profiles from individuals who had been convicted of serious violent or sexual offences. As the criterion of 'guilty' becomes an increasingly overlooked stipulation in legislative change, this necessarily entails a shift in the purpose and role of the DNA databases.

In the United States, legislation relating to genetic privacy is stringent in some applications but not in others. This is illustrated by the fact that many State legislatures exercise genetic privacy laws that prohibit employers, insurance companies and any other parties, from genetic testing. Furthermore, where DNA tests have been conducted, e.g. for a paternity test, retention or disclosure of the results without informed consent is prohibited.

Conversely, the not all DNA Databases are subject to the same regulations. While some States explicitly prohibit the use of DNA profiles for purposes other than law enforcement, other sates are more vague. Thirteen States allow their DNA databases to be used for 'other humanitarian purposes' and thirty-four States expressly authorise the creation of a population statistical database[20] - a database which allows for the analysis and interpretation of DNA profiles, albeit anonymous profiles.

The use of information contained on DNA databases is also not exempt from being used for medical and genetic research. Alabama is currently the only State that expressly mandates for the use of population statistical data in medical research and Michigan authorises the use of anonymous database information for academic or research purposes. On the contrary, eight States do prohibit the use of these profiles for being used in research for genetic prediction of human characteristics and predisposition to diseases or other genetic disorders. The remaining forty States have no specifications concerning this crucial issue: four States are totally silent and thirty-six do not make express provisions, although examination of authorised uses will help to delineate the policy[21].

Arguments against the Constitutionality of DNA profiling and Concerns regarding its increasing use

Legal challenges to the use of DNA testing in criminal investigations have emerged with greater frequency and vigour in the United States than in the UK[22]. Some of this is due to the varying legislation across the numerous State jurisdictions and of course, the distinct federal jurisdiction. We shall review some of the arguments used to carry legal challenges.

Unreasonable search and seizure is the main argument submitted against the taking of DNA samples. The United States constitution, in its Bill of Rights, protects its citizens from unreasonable search and seizure in the form of the Fourth Amendment. The Fourth Amendment does not expressly prohibit government searches without a warrant, however. The ambit of the Fourth Amendment has been interpreted widely by the Supreme Court to encompass any searches by public employees that intrude 'unreasonably' on matters of personal privacy. The Fourth Amendment is appropriate in the circumstances of DNA testing as it is largely agreed that the 'bodily intrusion' required to acquire a DNA sample constitutes an invasive search; although some courts have compared it to mere fingerprinting[23].

The case of Katz v United States[24] was crucial to the establishment of a standard as to what would amount to an unreasonable search. The precedent derived was that anything a person chooses to expose to the public is unable to attract the Fourth Amendment protection; however whatever he chooses to keep as private is potentially constitutionally protected. This creates a subjective expectation of privacy, although it must be one that 'society' too regards as reasonable. In order to invade this level of privacy, regardless of how small the intrusion, a standard of 'probable cause' must be reached[25]. Traditionally, therefore, 'probable cause' had to be demonstrated before the commission of any form of bodily intrusion and courts 'typically interpret the Fourth Amendment to require a warrant where bodily intrusion is involved'[26]. Conflicting conclusions have arisen in the interpretation of 'bodily intrusion'. Consequently, there are instances where the taking of a mouth swab iss said to require a warrant[27], and conversely, a warrant has been held unnecessary, on the grounds that talking and yawning exposes the interior of an individual's mouth to the public[28].

Despite the malleability of the Fourth Amendment, the judiciary has refused to refute the constitutionality of DNA sample taking for two main reasons.

1. The physical intrusion required to obtain a sample is minimal. In fact, one of the most intrusive methods of obtaining a DNA sample ö that of drawing blood ö is permitted by the Supreme Court on the basis of its minimal intrusion[29]. Furthermore, as the courts seem only to concentrate on the 'physical intrusion' rather than the 'result' of the search, it is relevant to note that methods of obtaining DNA samples are becoming frequently less intrusive.
2. The courts hold that 'criminals' have a lesser expectation of privacy compared to free persons, although this argument will not always extend to cover the incoming practice of the retention of arrestees' DNA profiles in data banks.

Even where there has not been a suspicion of wrong doing, the Supreme Court has authorised 'searches' using a balance of interests test: weighing the interests of the government against the degree of intrusion an individual will be subject to. Traditionally, such authorisations were given in administrative and regulatory circumstances as opposed to criminal investigations[30], although with regard to DNA profiling courts grant considerable weight to the governments' interest and perceiving orders to provide a DNA sample as being administrative in nature. Consequently the courts have generally ignored the wealth of personal information that a DNA sample, or even a profile, holds and concentrated on the benefits of governments being able to identify convicts and arrestees, thus analogising it with the accepted practice of taking fingerprints from all convicts and arrestees. In addition, where the constitutionality of the actual databases has been challenged, the 'balance of interests' test has proved particularly useful for the State governments and federal government when advocating the typical 'prevention and detection of crime argument', which invariably outweighs any allegations of the 'unreasonable'.

Cruel and unusual punishment has been advanced as an argument in litigation challenging the taking of a sample, with arguments ranging from the actual blood test fulfilling the criteria of cruel and unusual to the resultant detention in administrative segregation until consent was provided to the taking of a sample. The courts have not however shown sympathy to these arguments, and viewed a refusal to consent as a failure to comply with an administrative order or permitted the use of force to be used where officials are complying with a lawful order[31].

The freedom from self incrimination is protected by the Fifth Amendment in U.S. law and facilitates the right to remain silent encompassing both oral evidence and the production of private records and material. It does however not extend to include the taking of fingerprints, photographs or samples. The courts have held that the DNA found in blood or other samples is "non-testimonial" in nature and therefore the privilege against self-incrimination is not affected[32].

Concerns relating to DNA Databases

The prevalent concern of 'function creep' is particularly relevant in the context of DNA data banks, most notably as the classes of 'participants' expands. Initially dubbed as "criminal databases", the probable incorporation of arrestees across more States and in the NDIS necessarily questions the purpose of these data banks. It is no longer appropriate to label them as 'criminal' and the same accusations made against the UK government of creating a national database 'by stealth with little or no public debate'[33] will become increasingly applicable to the United States. We may draw analogies with the assurances made relating to Social Security numbers in the 1930s ö originally to be used solely as a component of the retirement programme, they have since become the "universal identifier that their creators claimed they would not be"[34].

These allegations of 'function creep' are also substantiated by the deficiencies contained in many of the States' legislative provisions. The DNA databases are not subject to the same 'genetic privacy' safeguards that are applied to samples taken in other situations, such as a medical examination. As mentioned above, thirteen States allow for the DNA profiles in the database to be used for 'other humanitarian purposes'. While this would include circumstances such as the identification of individuals in the instance of a large scale disaster, the non-exhaustive and broad nature of the provisions infers it is by no means limited to such benevolent situations. Further, thirty-four States authorise the creation of population statistical databases using this DNA.

A further deficiency that must be addressed in the legal sphere is the practice of sample retention. Although the DNA profile created from the sample is stored on the relevant data bases, its current format contains enough information to identify an individual but does not as yet reveal enough to pinpoint genetic diseases or other character traits. However the sample itself will invariably contain the complete, or at least partial, DNA code which does disclose as much as the ongoing scientific advancements can determine, such as diseases, physical characteristics and potentially, in the not too distant future, personality characteristics. Retention of these mines of information is justified on the grounds that technical advancements may require the re-testing of samples and it allows re-checking the sample to ascertain any errors. The FBI also points to the fact that no abuse of samples has been reported in over ten years of data-collection and analysis and so storage must be sufficiently safe[35]. Nonetheless, in our experiences, indefinite retention of samples does increase the risk of misuse or uninformed use of stored samples.

One issue of jurisprudential interest is the weight that may be placed on DNA evidence, which will obviously vary on a case by case basis. The understanding of juries as to DNA evidence is particularly apposite. On the simplest level, it is possible for some jury members to overlook the fact that an individual's DNA found at a crime scene is compelling evidence that links them to the location, but it is not in itself proof of guilt. Further issues arise with the employment of statistics in the course of a trial. An example is provided by the O.J. Simpson trial, where the prosecution testimony on matching blood stains proffered statistics such as 1 in a trillion with little or no guidance being granted as to the interpretation of such incomprehensible figures. "Even for a frequency as small as 1 in 1 trillion, the chance that there are others who share the profile is greater than one in two hundred"[36]. Similarly statistics are not only provided in relation to the chances of a match, but may also be used to illustrate the degree of the match, for example when an incomplete sample was obtained from a crime scene. The possibility of contamination and in this regard, standards relating to the collection, analysis and storage of data also play an important role in achieving a fair trial.

The increasing use of DNA databases will inevitably transform the investigative approaches and practices of the law enforcement authorities. As has been highlighted in the context of the expansion of the NDIS and other databases, the use of speculative searches "fosters a criminal justice system that relies more on 'cold hits' than through investigations, precisely the type of cases most subject to error[37]. The pronouncement of a positive match is likely to entail a less thorough investigation of incidents or events, which may affect a defendant's right to a fair trial or to an effective appeal at a later stage. Furthermore, emphasising DNA evidence as a panacea for criminal investigations is misplaced. This is illustrated by many sexual offences ö one of the categories for which DNA evidence is cited as being most useful ö whereby hurdles to justice centre on arguments relating to consent, and so DNA evidence is not in dispute.

Conclusion

This report was written by Rosemary Walsh

Related:
Key report damns UK National DNA Database Policy
National DNA Data Bank of Canada 2004-2005 Annual Report