Blue Byline

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DNA: confusing identification with punishment

Post by Brian O'Neill on Jan. 26, 2012 at 10:15 pm with 13 Comments »
January 27, 2012 8:39 am

This is the second in a three part series on balancing civil liberties and public safety.

Deoxyribonucleic acid, aka DNA, contains the genetic instructions used in the development and function of all living organisms (at least according to Wikipedia). The unique strands that make up each one of us as individuals is a dramatic peek into the fabric of our individual selves. For all intents and purposes, we are defined by our DNA.

DNA testing/ AP photo

The realm of law enforcement has been capitalizing on this discovery for several years, making DNA identification the cutting edge of police forensic science. DNA is now routinely used to filter out suspects in unsolved cold cases, as well as recent serious crimes. In many instances, DNA evidence has led to the exoneration and release of convicted individuals, and many crimes have been solved with positive DNA sampling.

In fact, it would be fair to say that the use of DNA has provided balance to the scales of justice.

With that in mind, Rep. Jeannie Darneille, D-Tacoma, has sponsored HB 2588, a measure that would require the collection of DNA samples from subjects being booked into jail on major felonies (and a handful of gross misdemeanors). The lawmaker’s proposal was prompted by a 2005 sexual assault in Tacoma – the serial rapist involved would likely have been incarcerated prior to the ’05 rape if the provisions of this bill were to have been enforced.

Under current procedures, DNA samples are not taken until post-conviction, but this factor has provided a very small amount of DNA samples for comparison.

Despite the obvious benefit, some legislators have decided that this provision is unfair and un-American. In concert with the thin-skinned and easily offended ACLU, they have raised an objection against the measure that is significant only its misrepresentation of our legal system as a whole.

Judge for yourself. In a Trib article, Rep. Sherry Appleton, D-Poulsbo, is quoted on the so-called  unconstitutional nature of HB 2588: “In this country, you are innocent until proven guilty; it’s not the other way.”

That statement completely misrepresents the purpose of DNA testing. The polymerase chain reaction test (PCR is the most common DNA test) is a means of identifying a single individual in exactly the same fashion as fingerprinting. Fingerprinting has been a part of the police booking procedure for decades; it is often the sole means of identifying subjects without I.D. who also refuse to provide their names to jail staff. DNA is simply a more useful and complete means of making a positive identification.

Let’s be clear. Conducting a test for the purpose of identifying an individual is not a punitive action. Whether the sample is for fingerprints or DNA, whether it is taken before or after conviction, should not matter to anyone…unless of course that person was or will be commit a crime of violence.

Instead, if you feel that it’s really necessary to speak out against the intrusion of the government into the lives of citizens, there are much more deserving targets. To begin that quest, look no further than the plight of law-abiding airline customers who are forced to partially disrobe, are subjected to scanning that digitally takes off the rest of the clothes, are groped in all the sensitive places, and then are abandoned with their belongings in a box without so much as a kiss goodnight.

That process is an infringement. Collecting a DNA sample from an arrested subject during the booking procedure is not. More importantly, those samples will one day lead to the arrests of violent individuals before they have a chance to find their next victim.

Once lawmakers realize that this DNA testing is not punishment, they can take the courageous step of defending the rights of victims and not the rights of those who prey upon them.

Leave a comment Comments → 13
  1. Chippert says:

    Just because huge parts of personal privacy is being violated today is no reason to surrender it all. Indeed it should be the impetus to rebel against the trend and strive to restore what our Constitution purportedly guarantees. Yes, DNA is incredibly useful in investigating crimes and yes, it has been standard procedure to fingerprint when booking for a long time. But maybe, just maybe, we should be looking at that procedure in regards to privacy violation instead of saying “well, we ALREADY do that, so what’s a little more?”. The argument that, if we already have the data on hand, we can solve a lot more crimes, does not hold sway either. If we are all micro-chipped and fingerprinted at a very young age, photographed and registered every six months, and had a complete Big Brother tracking system deployed we could solve many more crimes quickly too.

    I fully support DNA registration, etc when there is a compelling need for it. After a conviction then you surrender some of your personal rights by default. That’s the time to sample the DNA. Until that time, you are innocent and your privacy should be zealously protected.

  2. APimpNamedSlickback says:

    Brian:

    I understand your stance that this would be similar to taking fingerprints; however, the minimally intrusive nature of collecting DNA is not without it’s own problems here.

    For starters, unlike taking fingerprints, an oral swab involved removing something from the body. There are several religions that strictly prohibit this, and without a court order, compelling adherents of those religions to give a DNA sample does intrude on their civil rights.

    Now I realize that the state would dispute that and their first defense to this argument would be that we collect blood samples from DUI suspects without regard to religion already, but that is an entirely different case. First, blood samples for DUIs are covered under implied consent. You don’t need a court order to take it because the driver — if licensed — already consented prior to the alleged offense. And second, the collection of those samples have a much more limited scope. They are collected as evidence to prove a single crime that already occurred; not to identify suspects of multiple crimes that may or may not occur in the future.

    Additionally, the bill as currently written has other serious problems with it. For instance, it provides a method of expunging the DNA records, but it places an undue burden on the person from whom the DNA was collected, and the process itself is designed to violate the 4th Amendment.

    First, the bill states that the records may be expunged, not shall, and only at the request of the person who it was collected from. If that person does not go through the process of requesting an expungement, the state retains the DNA in its database. So if a person is never charged, or is acquitted, but doesn’t request the expungement, the sample is retained.

    Second, there are numerous requirements to request an expungement. Among them, the subject must wait at least one year after collection and prove that they have not been arrested for any other offense — not convicted, and not even arrested for an offense requiring collection — before they can even ask to have the sample expunged. Bear in mind, this applies to people who were arrested by mistake, too. If the subject has any prior convictions for any crime, they cannot request an expungement, even if they were never charged with a crime when the sample was collected. That means if you had a conviction for passing bad checks 30 years ago, then you get arrested but are released without charge, the state gets to keep the DNA they collected at your arrest and you can never ask them to destroy it.

    Next, in order to request expungement, the subject has a lengthy administrative process to go through (at their own expense) to prove to the state that they are not guilty of anything. Then, once they have done this to the satisfaction of the person who administers the database, that person is legally mandated to push the subject’s DNA sample to the top of their list for analyzation, run it to verify that DNA is not connected to any crime, then send the results to the FBI and wait for them to do the same. Then, and only then if both searches produce no hits, can the state lab expunge the DNA.

    Consider the following analogous scenario: I am arrested on suspicion of computer-related fraud because an investigation traced the fraud back to an IP address located at a house I own. My computer is seized by the state. Before I am even charged, the actual perpetrator (my tennant) comes forward, provides his computer and confesses to the crime. I am released without charge, but the state keeps my computer. Now I have to wait a year before I can ask the state to give me my property back, and even then, I have the burden of proving to a agency administrator — not a judge — that: a) I am not guilty of ANY crime, and b) I have paid any number of fees to produce proper documentation of that fact. Then, that agency administrator gets to examine my computer to see if there is any evidence of a crime on it, and he gets to send a copy of my hard drive to the FBI for them to do the same. Then, once both agencies have determined no crime has occurred (by examining a piece of evidence that neither agency may have ever had a warrant to seize), my property may be returned to me and the state would have to destroy any copies it had.

    Does that scenario seem like it is an unnecessary infringement on my civil rights, and a grossly overreaching intrusion by the state? If so, then the same must be said of what will happen with HB2588.

    Lastly, as a concern for the public and not the individual, the bill specifically provides for the subject to bring a lawsuit against the county if jail officials do not destroy samples already shared with the state lab in the event that no charge is ever brought, yet it is silent on the matter of bringing suit against the state or the lab. This creates a huge liability for already cash-strapped local governments, while implicitly shielding the state from the same liability.

    The fact is, HB2588 is terribly written and poorly conceived, despite its admirable intentions. I agree that something needs to be done to provide for easier identification of criminals, but this is not even close to the proper way of doing it.

  3. APimpNamedSlickback says:

    Sorry for the lengthy comment, but I thought of one other item that concerns me:

    The bill states that the samples taken only test 13 loci, which the bill’s author has been assured by the FBI and the state DNA lab can only be used for human identification — not the detection of predisposition to or actual existence of health problems and genetic disorders. However, while I’m not a scientist, who is to say that 20 years from now that information cannot be gleaned from those 13 loci?

    The bill specifies that the information is only to be used for human identification, but even so, do we want the state to maintain a clearinghouse of information that COULD be used (even if in strict contravention of the law) to detect that privileged information?

    That is where DNA and fingerprints differ. Consider this: what if the state was not mandating DNA samples, but retinal scans. Even if the law stated that the scans would only be used for identification, such a scan would be a detailed examination of the eyes which has the potential to detect the presence of the following conditions:

    – Cataracts
    – Glaucoma
    – Diabetes
    – Syphillis
    – Malaria
    – Sickle Cell Anemia
    – Leukemia, and
    – initial indications of HIV/AIDS

    Evidence of the presence of any of these conditions would constitute privileged medical information. Is it acceptable for the state to create a database of people who could potentially be categorized by these factors? Of course not, so why would we allow the state to create a database of information where the applications of the data collected has expanded over the past few decades and could reasonbly expand further into these other areas in the coming decades?… Particularly when the list of people that data was collected from in all likelihood will include people who were never convicted of any crime.

  4. BlaineCGarver says:
  5. I’ll provide my DNA but nobody will want it.

  6. 1. Will we get rid of the fingerprinting?

    2. It looks to me that a large amount of the funding is coming out of the gas tax fund.

    3. Well this be more effective then fingerprinting, and are they planning to track the its effectiveness versus fingerprinting?

  7. m9078jk3 says:

    Let’s use a hypothetical imaginary situation.An adept contract killer sucks up DNA from an innocent person lets say that innocent person is a avid gun collector.He does this by befriending the innocent person over say a short amount of time giving out a false name,modified appearance etc.Then the contract killer having DNA uses it at a crime scene (wearing a sanitized suit so his DNA or prints won’t be at the crime scene).He offs the intended (hit) victim silently using say a suppressor and now the police find DNA of a avid gun collector at the crime scene.Since the contract killer has left no DNA there who would the Police likely believe to be the killer?
    The contract killer BTW uses Thermite to dispose of his firearm,turn it into unrecognizable molten slag.
    DNA BTW can convict the innocent too.

  8. Brian O'Neill says:

    Couple things.

    Pawl- Fingerprinting and DNA are both excellent tools for identification. Rather than overlapping, the addition of DNA testing simply adds an additional tool for forensic specialists whose job is to assist in criminal investigations. As far as tracking its effectiveness, that’s a good question for another column. Down the road.

    m9078jk3- Strange screen name. Anyway, one of the basic precepts of crime scene investigation is that it is virtually impossible to enter a scene without leaving a trace of oneself, whether it is a shoe print, fingerprint, hair strand, clothing fiber, etc. As far as the extensive scenario you’ve created, with all due respect it seems like you’ve been spending too much time with role-playing games or on conspiracy theory websites. That doesn’t represent the reality in which I practice my profession.

  9. Brian O'Neill says:

    Pimp – Thanks for the extensive information into this topic. I’ll agree that perhaps HB2588 may lack proper wording – let’s not forget that this bill is from the same authors of the toxic medical marijuana legislation – but I believe it is too important an issue to let pass. This series of columns is on the balance of civil rights and public safety, and the DNA topic is a perfect example of a tool that could save lives at the expense of some intrusion. The question before us is, “What level of intrusion is worth the benefit of real protection?”

    If worded properly, the DNA collection of arrested subjects would definitely help solve crimes committed by dangerous people. I for one would rather give up my saliva if it would mean saving the life of a future homicide victim.

  10. APimpNamedSlickback says:

    Brian:

    “What level of intrusion is worth the benefit of real protection?’… I for one would rather give up my saliva if it would mean saving the life of a future homicide victim.”

    Were that what this bill was actually intended for, I might be inclined to agree with you, but it is not. In order for it to achieve that end, there would have to be some likelihood of actual protection resulting from it. The purpose of is bill is not to prevent future crimes, but to create a database of SUSPECTS of previous crimes to reference AFTER future crimes occur. The database has no predictive capabilities, and so it only serves as a collection of genetic information held by the state, of people who may never have been convicted of a crime. If the state were entitled to catalog this information at will, there would be no method devised to expunge the data. Instead, the state acknowledges Its avarice by making that process unduly burdensome for the admittedly innocent.

    I have no problem whatsoever with DNA being taken from convicts, provided that data is automatically destroyed if the conviction is overturned, but we’re talking about forcibly taking genetic information from people who have not enjoyed due process, then placing the burden on them to get that data back from the state. The bill also says nothing of what happens to the sample given to the FBI. Even if the sample held by the state is destroyed, the federal government gets to keep that information on file by way of the state sidestepping the Constitution.

    You say that undergoing a search at the airport is an intrusion, but this is not. I disagree. As much as I dislike the TSA touching my junk and taking pictures of me naked, I voluntarily submit to it. If I don’t want to do that, I can travel by bus, boat or train. What HB2588 proposes would be taking and keeping something from a citizen’s body against their will. It doesn’t matter that some or most them were rightly arrested. That’s not how the American justice system works. The burden is on the state to prove that they have both the reason and the right to take something from the citizen in each and every case.

    I understand the point of these columns is to examine to balance of civil rights and public safety, but topic discussed in this column presents an unacceptable imbalance. Those who say that this proposal is acceptable are likely to be in the group unaffected by it. But civil rights aren’t don’t belong only to those who don’t break laws and those who get caught. And the Constitution, while murky in some respects, is pretty clear that the state cannot take away a person’s rights without due process.

  11. Brian O'Neill says:

    I think we need to agree to disagree on this one, Pimp. I recognize that the bill may require tweaking, but the concept is one I am with which I am prepared to live. The arrests these DNA samples will bring about WILL put some pretty bad actors in jail, and that’s sufficient balance for me.

  12. Chippert says:

    Brian, what are your limits to the erosion of the concept of personal privacy when it means putting some “pretty bad actors” in jail? Are you willing to further our match to a Big Brother state that much? Are you willing to forgo all privacy so that these “pretty bad actors” can be caught? All-in-all, it’s just another brick in the wall.

  13. See, I’m guessing that this is all a distraction from the REAL agenda. The dissemination of DNA information won’t be strictly controlled. There is likely going to be evidence at first that law enforcement uses the information to protect the public at large, and that will be completely true, however, there is also the likelihood that others will use the same information for completely different motives. Your insurance company relies on the information about your driving record that law enforcement collects. Helping your insurance company keep tabs on you wasn’t what the police were designed to do, yet the information they collect on you makes it’s way to them. Now, we’ll collect DNA information on convicts, then arrested people, then eventually at birth. Once a particular marker has been linked to, oh say, depression, the insurance companies will want access to your DNA file so they can price your rate accordingly. Schools may overlook you based on your DNA proven emotional problems. You might have trouble finding a spouse based on your DNA profile. Even employers could deny you employment based solely on your profile.
    DNA is an awesome science, but once you let the genie out of the bottle, it’s going to be impossible to put it back in. Historically, we have always found a way to use and re-use information, not always in the ways intended. Think of the damage that can be done TO you by just your Social Security number!!!

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