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I. Introduction: Identity testing in criminal investigation

During the mid-to late nineteenth century, European intellectuals and government leaders worried about the rising crime rate that accompanied industrial progress and colonial expansion (Sankar, 2001). Analysts proposed a biological degeneration as the cause of rising crime in general, and in particular, the creation of a criminal class. To reverse this degeneration in England, Francis Galton proposed compulsory marriages between people of good stock. This presented the challenge of finding an outward sign of inward character, so that it would be possible to identify those who should be breeding. In the 1880s, Galton thought that he had found this marker in fingerprints. However, his studies showed that variations in papillary ridges would not provide an external marker of internal character, and hypothesized that this was due to a millennia of indiscriminate mixing of character types. Nevertheless, he decided that fingerprints could aid social improvement by providing a unique identifier, which would be especially useful to identify habitual criminals who took advantage of the anonymity offered by the new, large cities (Cole, 2001 ).

One hundred years later, Alec Jeffreys, a geneticist working in England on blood anomalies, developed DNA typing. As the analytic techniques evolved, "DNA fingerprinting" became more popular. In 1995, Britain began to take DNA samples from anyone arrested for a felony or misdemeanor (Cole, 2001). The United Kingdom’s National DNA Database currently holds DNA profiles of more than 1.5 million suspects (Forensic Science Service, 2002). The United States is beginning to get as aggressive as the UK in collection of DNA samples for criminal identification.

II. DNA Testing in the United States

All states have laws authorizing the collection of biological samples for DNA analysis from convicted sex offenders (Gugliotta, 1999; Willing, 2002a). Although requirements vary from state to state, most also take samples from murderers, kidnappers, robbers, and child molesters. Virginia, which has the oldest DNA database in the U.S., has been at the forefront: taking samples from convicted felons, as well as from juvenile offenders whose crimes would have been felonies had they been of age (Siegel, 2002).
More states are moving to collect DNA samples from thousands of non-violent criminals, such as burglars and check forgers (Willing, 2002b). The number of states collecting DNA from all convicted felons rose from seven in 2000 to 19 in 2002, a trend that may be driven by the observation that state DNA databases now routinely solve murders, rapes, and other violent crimes by linking them to criminals convicted of non-violent offenses (Willing, 2002b). In Virginia, for example, nearly two-thirds of the 60 crimes linked to people convicted of drug possession were rapes or murders, and ten out of 22 forgers who were linked to other crimes were linked to murders or sexual assaults. The success of DNA databases has also spurred the authorization of the use of "reasonable force" with inmates reluctant to donate samples. To date, 11 states have authorized the use of such force (Willing, 2002a).
In addition to an expansion of the types of crimes that trigger biological sample collection, states are changing the point at which samples can be taken. In February, a Texas law took effect that requires testing of those indicted in sex crimes (Rein, 2002). That same month, Virginia took a more radical step. The legislature passed a bill that allows authorities to take biological samples for DNA analysis of everyone arrested in a felony case.

Virginia’s SB535, which has an effective date of January 1, 2003, requires a saliva or tissue sample from every person arrested for a violent felony. A "violent felony" includes: first and second degree murder, voluntary manslaughter, mob-related felonies, a kidnapping or abduction felony, any malicious felonious assault or malicious bodily wounding, robbery, carjacking, a criminal sexual assault punishable as a felony, and certain forms of arson. After the law is in effect, a magistrate will determine that probable cause exists for the arrest, and then a biological sample will be taken prior to the person’s release from custody. If the charge is dismissed or the person is acquitted at trial, the DNA sample will be destroyed by the Division of Forensic Science.

Dr. Paul Ferrara, the Director of the Virginia Division of Forensic Science, sees that the primary benefit of the new law is that, by taking a sample at the time of arrest instead of waiting for a conviction, DNA information is available earlier for comparing against DNA samples from unsolved crimes (Sigel, 2002). However, the notion of taking DNA samples from arrestees has stirred protests that it is unconstitutional and should not be done.

III. DNA Collection at the Time of Arrest

1. Is it permissible under the law?

Those who find DNA collection unconstitutional point to the Fifth or Fourth Amendments. Some commentators have argued that a suspect’s Fifth Amendment right not to act as a witness against themselves provides a basis for refusing to give a genetic sample (Morin, 2002). However, courts have limited the right against self-incrimination to a suspect’s oral testimony, and physical or behavioral characteristics are not testimonial. In Boling v. Romer, for example, a federal appellate court found that requiring DNA samples from inmates was not compulsory self-incrimination because DNA samples are not testimonial in nature. The Fourth Amendment provides a more substantial challenge to DNA testing.

Under the Fourth Amendment, suspects have a due process right against unreasonable searches and seizures. As a result, a warrant must be issued to conduct a search and probable cause must exist before the warrant is issued. One proponent of DNA testing detects support for the procedure in the U.S. Supreme Court decision, Schmerber v. California, in which the Court found that an involuntary blood draw to assess blood alcohol concentration was allowable without a warrant, because the evidence would have been metabolized by the time a warrant was issued (Scott, 2001). Of course, a suspect’s DNA should be more stable than blood alcohol; if not, than the suspect has bigger problems than the law.

The Fourth Amendment guarantees that all people shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." A governmental action is a search or seizure within the scope of the Fourth Amendment if the person invoking its protection can claim a legitimate expectation of privacy in the place search or the item seized. Courts have found that obtaining a biological sample, such as saliva, for DNA analysis can be considered a search under the Fourth Amendment (see, for example, In re Shaddie Clark Shabazz). However, the Fourth Amendment does not proscribe all searches and seizures, but only those deemed "unreasonable." The general rule is that the question of whether a particular action is unreasonable is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests (see, for example, The People v. James Edward King). When the governmental action is the taking of a sample for DNA analysis, courts have analogized to fingerprinting.

In Rise v. State of Oregon, the court noted that the gathering of fingerprint evidence from "free persons" constitutes a sufficiently significant interference with an individual’s expectation of privacy that authorities are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person’s connection with the offense. In contrast:

[E]veryday "booking" procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. . . . Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state. (p. 1560; citations omitted)

The same argument can be made for the routine collection of a biological sample, such as saliva or a buccal swab, for DNA analysis.

2. Should it be allowed?

In 1998, New York City Police Commissioner Howard Safir went public with his plan for city police to take a DNA sample along with fingerprints of everyone arrested ("DNA," 1998; "Proposal," 1998). Norman Siegel, the Director of the New York Civil Liberties Union, objected that the major fallacy in Safir’s plan was that he equated a fingerprint with DNA when taking a DNA sample, unlike recording a fingerprint, reveals a person’s complete genetic makeup and is too intrusive ("DNA," 1998). The Director of the Connecticut Civil Liberties Union has gone further. According to Joseph Grabarz, when you give up DNA information, you are not just giving up information about yourself, but about your family, past, present, and future (Halloran, 1999). This concern, in turn, fuels the fear that genetic information will be used for genetic discrimination, or that law enforcement agencies might use the information for commercial purposes (Halloran, 1999; Kertscher, 2001). These fears are based upon a misunderstanding about the information derived from DNA analyses by crime laboratories.

There is a difference between the genetic information required for identification and the genetic information that informs about disease or phenotype. Fisher and Jones (2001) explain the differences this way. A genetic marker used for identification should be highly variable, and the more variable the markers, the fewer are needed for positive identification. In contrast, a gene examined in a genetic test is unlikely to be highly variable, because the test is geared to detect an abnormality, which most will not have. Furthermore, a nucleotide sequence is usually of interest in genetic testing because it codes for a protein. In identification, however, a noncoding nucleotide sequence is of most interest. This is because the mathematical modeling used in identification works best with noncoding sequences that are considered unaffected by natural selection.

3. Can it be done?

Even if the sampling of all arrestees’ DNA may be performed, the question remains about whether it can be done. Arizona now tests only those convicted of certain crimes, including homicide, sexual offenses, and home burglary. However, the state legislature may soon pass a bill that would phase in testing of all convicted felons. Yet this increase in scope, which does not include arrestees, presents the unresolved issue of how to pay the estimated $2 million annual cost of expanded testing (Davenport, 2002). Since 1999, Louisiana has a law mandating arrestee testing, but staffing and funding problems have delayed the program (Rein, 2002).

On the federal level, experts have concluded that the collection of DNA samples at the time of arrest is cost prohibitive. According to the National Commission on the Future of DNA Evidence, the majority of crime laboratories face difficult prioritization decisions due to limited financial and personnel resources (National Institute of Justice, 2000). Laboratories find their first priority in cases necessary for upcoming trials, as they struggle to keep pace with prosecutors’ demands for DNA evidence in court. The next priority lies in DNA analysis for investigative purposes, where a suspect exists but DNA evidence is necessary to effectuate an arrest. It is only after prioritizing court cases and suspect cases that laboratories can allocate resources to analysis of non-suspect crime scene samples. This is the class for which the FBI’s Combined DNA Index System (CODIS) was designed and the class of cases where offenders are at liberty to re-offend.

Due to current prioritization and funding constraints, most police departments maintain policies that prevent the submission of non-suspect cases to laboratories, creating a backlog of DNA cases maintained in police evidence lockers. To place the extent of the backlog into perspective, Congress is considering the DNA Database Completion Act of 2001 (H.R. 2680), which authorizes grants to eligible States for DNA analyses of samples taken from individuals convicted of a qualifying State offense, and of samples from crime scenes, for inclusion in the Combined DNA Index System. The cost: $100,000,000 for each of fiscal years 2002 through 2006.

Given the current volume of DNA cases facing the nation’s forensic labs and the current inability of the labs to keep pace with that volume, the Commission recommended that the Department of Justice should not pursue arrestee sampling unless the convicted offender database backlog is substantially eliminated, significant sources are allocated for the analysis of non-suspect cases, and sufficient funds are made available for the collection and analysis of arrestee samples. Until these conditions are met, the Commission concluded, the pursuit of arrestee sampling would seriously exacerbate the backlog and casework and prove more harmful than beneficial by diverting resources from non-suspect cases.

IV. Conclusion

The social development of DNA analysis is paralleling that of fingerprints: initial hesitancy followed by acceptance of police departments and courts, followed by a rush to implement the technology with an ever-expanding scope. According to Cole (2001), the history of fingerprinting should teach the difference between a biological marker and a code that informs about a person’s abilities, weaknesses, or destinies. An emphasis on this distinction may aid the social acceptance of collecting DNA samples from arrestees, as long as there are sufficient assurances that DNA typing will only be used for identification. The cost of implementing such a biological sample collection is another matter. However, the U.S. public may be more inclined to foot the bill since the September 11 terrorist attacks.

References

Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996).

Cole, S.A. (2001). Suspect Identities (Harvard University Press).

Davenport, P. (April 12, 2002). "Lawmakers moving to expand state’s DNA testing of criminals," The Associated Press State & Local Wire.

"DNA from suspects: Plan raises fears," Seattle Times (Final Edition) A6 (December 15, 1998).

Fischer, E.A. and Jones, N.L. (2001). DNA Identification and Evidence: Applications and Issues (Novinka Books).

Forensic Science Service (2002). "History of the Forensic Science Service," Available: http://www.forensic.gov.uk/forensic/entry.htm.

Gugliotta, G. (July 7, 1999). "A rush to DNA sampling: Vital police tool? Affront to Liberty?" The Washington Post, A01.

Halloran, L. (October 24, 1999). "DNA testing fuels debate over privacy some say justice wins, others fear losing rights," Hartford Courant, A1.

In re Shaddie Clark Shabazz, 2002 U.S. Dist. LEXIS 8078 (April 23, 2002).

Kertscher, T. (May 4, 2001). "DNA tests raise privacy worries," Milwaukee Journal Sentinel, 03B.

Morin, S.K. (Spring 2002). "The physician as gatekeeper to the use of genetic information in the criminal justice system," The Journal of Law, Medicine, & Ethics 30:88-94.

National Institute of Justice. (January 16, 2000). "Recommendation of the National Commission on the Future of DNA Evidence to the Attorney General Regarding Arrestee DNA Sample Collection," Available: http://www.ojp.usdoj.gov/nij/dna/arrestrc.html.

"Proposal: DNA sample at arrest/Safir to speak today on controversial plan," Newsday (Combined Editions), A31 (December 14, 1998).

Rein, L. (February 11, 2002). "Va. Senate Panel Backs DNA tests at time of arrest," The Washington Post, A1.

Rise v. State of Oregon, 59 F.3d 1556 (Ninth Cir. 1995).

Sankar, P. (2001). "DNA-Typing: Galton’s Eugenic Dream Realized?," in Documenting Individual Identity, Caplan, J. and Torpey, J. (Eds.), pages 273-290 (Princeton University Press).

Schmerber v. California, 384 U.S. 757 (1966).

Scott, G. (November 20, 2001). "Should Physicians help law enforcement authorities conduct ‘DNA dragnets’?, The New York Times (Late Edition), F7.

Siegel, R. (February 18, 2002). All Things Considered National Public Radio.

The People v. James Edward King, 82 Cal. App. 4th 1363 (Ct Ap Cal 2000).

Willing, R. (2002a). "Some inmates say ‘no’ to DNA sample; Nation’s database could be threatened," USA Today (Final Edition), A.03 (April 15, 2002).

Willing, R. (2002b). "Collection of prisoner DNA widens; Major crimes linked to non-violent offenders," USA Today (Final Edition), A.03 (May 2, 2002).