T H E

CQResearcherPUBLISHED BY CONGRESSIONAL QUARTERLY INC. DNA Databases Does expanding them threaten civil liberties?

NA identification has moved from an ex- perimental technique to an established crime-solving tool for police and prosecu- tors in the United States, as well as other nations.D Now, law enforcement agencies are creating DNA I N databases of criminal offenders that can be used to link THIS ISSUE S THE ISSUES ...... 451 criminals or suspects to unsolved crimes. All 50 states I BACKGROUND ...... 457 have laws requiring DNA profiling of some offenders, and D CHRONOLOGY ...... 459 some law enforcement officials want to compile DNA E CURRENT SITUATION ...... 463 profiles of arrestees as well. Defense lawyers are also AT ISSUE ...... 465 using DNA analysis to challenge old convictions; more OUTLOOK...... 467 than 60 prisoners — some on death row — have been BIBLIOGRAPHY ...... 469 exonerated by DNA testing. But civil liberties and privacy THE NEXT STEP ...... 470 advocates say expanding government DNA databases will lead to misuse of sensitive personal information that can be gleaned from DNA analysis.

May 28, 1999 • Volume 9, No. 20 • Pages 449–472 DNA DATABASES T H THE ISSUES OUTLOOK CQE Researcher May 28, 1999 • Should the use of DNA New Applications Volume 9, No. 20 451 databases be expanded? 467 New uses of DNA identifi- EDITOR • Do DNA databases pose cation are being found, but Sandra Stencel a threat to individual civil liberties advocates rights? worry about abuse. MANAGING EDITOR Thomas J. Colin SIDEBARS AND STAFF WRITERS BACKGROUND Adriel Bettelheim GRAPHICS Mary H. Cooper The Power of DNA Kenneth Jost 457 The ability of DNA typing DNA Testing Frees Many Kathy Koch to convict the guilty and 453 Convicted Offenders David Masci exonerate the innocent At least 62 offenders have PRODUCTION EDITOR was first demonstrated in been freed, including some Angela S. Dixon 1987 in an English court- on death row. room. EDITORIAL ASSISTANT DNA Testing Helps Free Laura S. Cavender 455 Inmates After Years in 458 Fighting for Acceptance Prison PUBLISHED BY Some experts initially Two innocent Oklahoma Congressional Quarterly Inc. questioned the degree of men waited 10 years. certainty that could be CHAIRMAN given to a DNA match 456 All States Provide for DNA Andrew Barnes within a particular racial or Databases VICE CHAIRMAN ethnic grouping. All the laws at least cover Andrew P. Corty sexual offenders. PRESIDENT AND PUBLISHER Gaining Acceptance Robert W. Merry 460 By the mid-1990s, DNA Chronology 459 Key events since 1953. evidence had become an EXECUTIVE EDITOR David Rapp established forensic Databases and DNA Drag- technique. 461 nets Aid Police in England Thousands of DNA samples Copyright 1999 Congressional Quarterly Inc., All Creating Databases have been collected in some Rights Reserved. CQ does not convey any license, 462 States began passing laws high-profile cases. right, title or interest in any information — includ- requiring DNA samples ing information provided to CQ from third parties At Issue — transmitted via any CQ publication or electronic from some convicted 465 transmission unless previously specified in writing. offenders as early as 1988. Should DNA be collected No part of any CQ publication or transmission may from arrestees and included be republished, reproduced, transmitted, down- in law enforcement databases? loaded or distributed by any means whether elec- tronic or mechanical without prior written permis- CURRENT SITUATION sion of CQ. Unauthorized reproduction or trans- DNA Testing of Newborns mission of CQ copyrighted material is a violation 466 Stirs Privacy Debate of federal law carrying civil fines of up to $100,000 Expanding Databases Some people are pushing and serious criminal sanctions or imprisonment. 463 Despite implementation profiling of babies at birth. Bibliographic records and abstracts included in problems, many states The Next Step section of this publication are the want to expand DNA copyrighted material of UMI, and are used with databases to cover more FOR FURTHER permission. convicted offenders. RESEARCH The CQ Researcher (ISSN 1056-2036). Published weekly, except Jan. 1, April 2, July 2, Dec. 3, Dec. 31, by Congressional Quarterly Inc., 1414 Working the Cases Bibliography 22nd St., N.W., Washington, D.C. 20037. Annual 464 Police are using DNA in 469 Selected sources used. subscription rate for libraries, businesses and imaginative, new ways to government is $396. Single issues are available The Next Step for $10 (subscribers) or $20 (non-subscribers). investigate and prosecute 470 Quantity discounts apply to orders over 10. cases. Additional articles from Binders are available for $18. Additional rates current periodicals. furnished upon request. Periodicals postage paid at Washington, D.C., and additional mailing of- fices. POSTMASTER: Send address changes to Cover: Jenifer A.L. Smith, chief of the FBI’s DNA Analysis Unit I, explains how DNA samples The CQ Researcher, 1414 22nd St., N.W., Wash- helped convict a rapist in Milwaukee. (Reuters/Rick Wilking, Nov. 12, 1997) ington, D.C. 20037.

450 CQ Researcher DNA Databases BY KENNETH JOST

about the science of DNA identi- THE ISSUES fication have faded away. But some civil liberties and privacy advocates are assailing moves by ew York City police arrested law enforcement agencies to con- Isaac Jones in April outside struct a nationwide computer da- N a pawnshop in the Bronx. tabase of DNA profiles of criminal He was waiting in a car while his offenders. Law enforcement offi- girlfriend redeemed a diamond cials say police and prosecutors pendant that had been taken from can use the databases to link sus- a rape victim. 1 pects and offenders to crimes that At first, Jones denied any knowl- otherwise would either go un- edge of the attack, according to solved or require substantial police. When detectives threatened courtrooms in 1987, DNA profiling, amounts of time and money to solve. to charge his girlfriend, however, or so-called genetic fingerprinting, has Critics, however, fear the databases Jones reportedly admitted that he was evolved from a controversial forensic will be abused. “There is a frighten- the man police had been hunting in novelty to a powerful and widely ac- ing potential for a brave new world a string of rapes dating back to 1993. cepted tool for identification in crimi- where genetic information is routinely Jones, who had previous convic- nal investigations and prosecutions. 2 collected and its use results in abuse tions for sodomy and unlawful im- DNA identification has also been used and discrimination,” says Barry prisonment of a woman, could not in some 60 cases in the United States Steinhardt, associate director of the recall details of the other attacks, to exonerate defendants wrongfully American Civil Liberties Union police said, so they charged him in convicted years ago — freeing in- (ACLU). Employers and insurers, for only four assaults. But an analysis of mates from death rows or long prison example, could uncover a worker’s the DNA contained in a sample of sentences. (See story, p. 455.) predisposition to disease and use the Jones’ blood showed a likely match “It’s the most significant advance- information to exclude him from em- with DNA samples obtained in many ment in investigative tools at least in ployment or insurance coverage. other rapes.* “We have 17 positive this century,” says Christopher The same biological sample used hits of DNA evidence leading back to Asplen, a federal prosecutor who is for DNA identification “can also be Isaac Jones as the rapist,” First Deputy currently serving as executive direc- used for a full biological dissection of Police Commissioner Patrick Kelleher tor of the Justice Department’s Na- that person,” says geneticist Paul told reporters. tional Commission on the Future of Billings, who edited a collection of Acquaintances from Jones’ Bronx DNA Evidence. “It’s one of the most critical essays about DNA identifica- apartment house and the New York accurate technologies we have. It has tion several years ago. 3 office building where he worked as an incredible ability not just to con- Law enforcement officials note, a floor polisher described Jones as vict the guilty but also to exonerate however, that the DNA used for iden- polite and friendly and voiced sur- the innocent.” tification purposes actually does not prise at his arrest. “The DNA evi- Walter Rowe, a leading academic contain genes and thus provides no dence speaks for itself as to what forensic scientist, says that DNA typ- genetic information about a person: kind of individual he really is,” ing, in fact, is going beyond the iden- “junk DNA,” they call it. But critics Kelleher responded. “We got a very, tification technique introduced at the emphasize that law enforcement very dangerous individual off the turn of the century: fingerprinting. agencies retain the original samples streets of New York.” “Now we’re probably more likely to collected from criminal offenders — Introduced in U.S. and British recover usable DNA from a scene than usually blood or saliva — making it a fingerprint,” says Rowe, a professor possible to use the samples for other * DNA — deoxyribonucleic acid — is the basic genetic substance of all living cells. Embedded at George Washington University in purposes. “Whoever holds those in the giant DNA molecules — identical Washington, D.C. “We’re now start- samples has full access to all the throughout the body — is the hereditary information that determines everything from eye ing to do DNA work from animals and genetic information about that per- color to predisposition to some diseases. In plants. It may be the greatest advance son,” Billings says. addition, a DNA molecule contains stretches of chemical building blocks with repetitive patterns in forensic science in history.” Steinhardt also warns against what that vary from individual to individual. Most of the early controversies he calls the “creeping expansion” of

CQ on the Web: www.cq.com May 28, 1999 451 DNA DATABASES

databases. The earliest databases as expunging the DNA identification Such cases explain why law en- were limited to sex offenders, but of anyone who was not convicted. forcement officials view DNA data- over time they have been expanded Even so, civil liberties advocates bases as an important tool in fully in some states to include people fiercely denounced the idea, while realizing the benefits of DNA evi- convicted of other crimes. “We’ve even some DNA database advocates dence. “It’s not just crimes that occur gone very quickly from data banks said practical considerations weighed today,” says Steve Niezgoda, program for persons convicted of sex offenses against the idea for the time being. manager for the FBI’s DNA database. to data banks for most felonies to (See “At Issue,” p. 465.) “It’s crimes that occurred in the past: proposals to test all arrestees and The issue is one of many ques- women raped five or six years ago.” even to test all newborns,” says tions concerning the use of DNA Niezgoda says there have been Steinhardt (See story, p. 466.) evidence being considered by the more than 600 cold hits through the So far, the criticisms of DNA data- national DNA commission, which is FBI’s DNA database since it was banking are having little effect. All 50 expected to complete its work by established in 1990. The database also states have passed laws providing for August. As the commission, ap- produces benefits that are less sus- DNA databases on convicted sexual pointed by Attorney General Janet ceptible to quantifying, he says. “A offenders. Four of those states collect Reno, sifts through a variety of is- database hit saves a lot of police samples from anyone convicted of a sues, here are some of the major resources,” Niezgoda says. “And it felony (see p. 462). questions being debated: might lead to longer sentences, or The FBI, which established its own less cost with the trial, because the database in 1990, is now working to Should the use of DNA data- evidence is of higher quality.” create a national database compa- bases be expanded? Critics of DNA databases are hard- rable to its national criminal finger- Carolyn and Tony Sievers, of Virginia pressed to dispute the benefits to law print file. Twelve states have con- Beach, Va., have no doubts about the enforcement. “Of course, there would nected to the FBI’s system — known value of DNA databases. Virginia’s da- be benefits for the criminal justice as CODIS for Combined DNA Iden- tabase helped solve the murder of their system,” says Philip Bereano, a pro- tification System — since it was of- 22-year-old daughter, Hope Hall, more fessor of technology and public ficially announced in October; FBI than two years after she was raped and policy at the University of Washing- officials hope to have all 50 states killed in her suburban Richmond, Va., ton in Seattle. “There would be ben- connected within a year or so. apartment. Her killer, Shermaine efits if we let police knock down But the states face significant fund- Johnson, was identified after he had doors at random in search of criminal ing and logistical problems — in- begun serving a long prison sentence activity. I’m sure they would find cluding a backlog of nearly a half- for rape and abduction in southeastern some, but the Fourth Amendment million DNA samples that have been Virginia. Johnson was identified when wouldn’t permit it.” collected but not analyzed. And some the DNA sample he had provided after “Law enforcement is always look- states have yet to set up their data- his conviction — as required under Vir- ing for new tools to investigate bases — including Louisiana, the only ginia law — was matched in August crime,” says the ACLU’s Steinhardt. state with a law on the books for 1996 in a computerized “cold hit” to “We still have problems with the collecting DNA samples from people DNA collected at the scene of the 1994 notion of mass testing of individuals who simply have been arrested for crime. Johnson was convicted in July based not on reasonable cause that felonies, as well as those who have 1998 of Hall’s murder and sentenced to they are a suspect in the crime but been convicted. death. just on their status’’ as a convicted Despite those difficulties, lawmak- The Sievers have created the “Hope offender or arrestee. ers and law enforcement officials in Denise Hall Action Memorial” Web So far, however, civil liberties many states are actively debating site to advocate more funding for challenges to creating DNA databases expansion of DNA databases. New national and international DNA data- of convicted offenders have failed in York City Police Commissioner bases to identify and prosecute crimi- state and federal courts. Three fed- Howard Safir stirred the controversy nal offenders. “Instead of convicting eral appeals courts have upheld state in December by proposing that DNA a criminal of one crime,” the Sievers laws allowing the collection of DNA samples be collected from all write, “we can identify him for all the samples from inmates and parolees, arrestees in the city, saying it would crimes he committed, and then he and the only state court ruling to bar help reduce crime. He coupled the goes to prison for the rest of his life or the practice — by a lower court judge proposal with some safeguards, such is properly executed if warranted.” 4 Continued on p. 454

452 CQ Researcher DNA Testing Frees Many Convicted Offenders

At least 62 convicted offenders have been freed from prison in the United States after DNA testing of evidence established their innocence or cast sufficient doubt on their guilt to warrant their release. A Justice Department report published in 1996 analyzed the 28 cases known at that time. All but one of the defendants were convicted by juries; the one guilty plea involved a defendant with a mental disability. All of the cases involved some form of sexual assault. The inmates served an average of seven years before their release. Three of the freed inmates had been sentenced to death, and six others received life terms. Here are synopses of those cases:

Primary Charges/ Case Name/ Date of Conviction/ Selected Evidence Result of DNA Testing; Location Sentence at Trial Time Served

Bloodsworth, Kirk Murder, rape (1985); Five witness IDs; Excluded by test of Baltimore, Md. death, reduced to life self-incriminating panties; 9 yrs. statements

Cotton, Ronald Rape, 2 counts (1985, ’87); Victim ID; similarity Excluded by test of Burlington, N.C. life + 54 yrs. of shoes, flashlight panties, vaginal swabs; 1 10- /2 yrs.

Cruz, Rolando Murder, kidnapping, rape Witness statements; Excluded by test of Chicago, Ill. (1985); death “dream visions” of murder semen-stained underwear; 11 yrs.

Daye, Frederick Rene Rape, 2 counts; kidnapping Victim, witness ID; Excluded by test of San Diego, Calif. (1984); life blood analysis semen-stained jeans; 10 yrs.

Hernandez, Alejandro Murder, kidnapping, rape Witness statements; Excluded by test of Chicago, Ill. (1985); death self-incriminating semen-stained statements underwear; 11 yrs.

Honaker, Edward Rape, sexual assault, Victim, witness IDs; Excluded by test of Nelson County, Va. sodomy (1985); 3 life hair analysis vaginal swab; 10 yrs. terms + 34 yrs.

Jones, Joe C. Rape, kidnapping (1986); Victim, witness IDs; Excluded by test of 1 Topeka, Kan. life + 10-25 yrs. proximity to crime scene vaginal swab; 6- /2 yrs.

Nelson, Bruce Murder, rape (1982); Codefendant testimony; Excluded by test of crime- Allegheny Co., Pa. life inculpatory statements scene evidence; 9 yrs.

Woodall, Glen Sexual assault, kidnapping Blood, hair analysis; Excluded by tests of Huntington, W. Va. (1987); 2 life terms victim ID vaginal swabs, clothing; + 203-335 yrs. 4 yrs. + 1yr. electronic confinement

Source: U.S. Department of Justice, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (1996).

CQ on the Web: www.cq.com May 28, 1999 453 DNA DATABASES

Continued from p. 452 are going to be tremendous,” says collecting biological samples that in Boston — was overturned by Paul B. Ferrara, director of Virginia’s contain DNA, and there are no real Massachusetts’ highest court in April. Forensic Science Division. controls over how that information The successes in matching con- Critics, however, say that collecting can be used and for what purposes,” victed offenders to unsolved crimes, samples from arrestees is just one more says Steinhardt of the ACLU. “We combined with the favorable court step down a slippery slope that could believe that inexorably databases rulings, lead some DNA advocates to lead someday to universal genetic reg- created for one purpose wind up call for expanding the databases. “We istration — a system that they say is being used for other purposes.” need to have the databases as com- fraught with privacy implications. Advocates of using DNA evidence prehensive as possible to get the “This is a technology that power- in court have acknowledged poten- maximum benefit,” says George ful groups will want to use eventu- tial risks to privacy since the early Washington’s Rowe. ally to monitor all of us, not just the days of the technology. “When data Civil libertarians naturally oppose bad people, but the rest of us,” banks are established in such a way any further expansion of the data- Bereano says. “That’s what this tech- that state and federal law-enforce- bases. But many law enforcement nology is about.” ment authorities can gain access to officials and other DNA database ad- DNA profiles, not only of persons vocates also oppose the idea of col- Do DNA databases pose a convicted of violent crimes but of lecting samples from arrestees — at danger for individual rights? others as well, there is a serious least for the time being — for prag- “Danny,” a 7-year-old California boy, potential for abuse of confidential matic reasons. was diagnosed several years ago with a information,” the National Academy “On the face of it, it sounds good, gene that predisposes him to a heart of Sciences concluded in its first but it does present some problems,” disorder. The family’s doctor prescribed report on DNA profiling, in 1992. 6 says Rowe. “Right now, you just don’t medication to lower the risk of a heart Law enforcement officials today, have the capability to do anything with attack. But when Danny’s father however, insist that the state and FBI it. And if [a suspect] is acquitted, there’s changed health insurers, the company DNA databases pose no real risk to some case law that would say he would refused to insure the boy, saying the privacy rights. They insist that the have the right to have the sample de- genetic trait amounted to a “pre-exist- DNA profiles are strictly safeguarded stroyed and the record expunged.” ing condition” that disqualified him and, in any event, are nothing more “If we get to the point where our from coverage. than “junk DNA” that contains no DNA labs can start turning these The Council on Responsible Ge- sensitive information about a person’s [samples] around in a month, and we netics, a bioethics advocacy group in health or background. start collecting all the samples owed Cambridge, Mass., cites Danny’s case “These aren’t genes,” Ferrara says. and analyzing all the samples from as one of 200 instances of what it la- “They don’t tell us anything about crime scenes, once that happens, bels genetic discrimination. 5 Critics of medical conditions.” come back and talk to us about typ- DNA databases say the risk of genetic Steinhardt and other critics ac- ing all arrestees,’’ says Barry Scheck, discrimination will necessarily in- knowledge that the DNA profiles a defense lawyer, member of the crease with the increasing number of themselves are useful only for iden- national commission and director of DNA profiles being collected in both tification not for other genetic infor- the Innocence Project at Yeshiva private and government computers mation. But they note that law en- University’s Cardozo Law School in that can readily be interconnected. forcement agencies retain the blood New York. Scheck, who came to “We have a forensic, data-banking samples used to obtain the DNA used national prominence as the DNA system based in the states, some more in profiling and that those samples evidence expert on the defense team developed than others, but com- could be used — or misused — at a in O.J. Simpson’s 1995 murder trial, pletely designed so that they will later time to find out more personal is a DNA database advocate. share information and cross state lines information. “If the states and FBI Still, some law enforcement offi- for doing searches of the sort we’re were serious about limiting the use cials who oppose including arrestees talking about,” says geneticist Bill- of these samples to law enforcement for now also say there would be ben- ings, who reported Danny’s case and purposes, they would be destroying efits in the future. “If we took samples others several years ago. “What’s the these samples rather than retaining from suspects at arrest and searched a reason for thinking that you won’t be them indefinitely,” Steinhardt says. database of samples from crime able to cross agencies?” “There are real and valid reasons scenes, the advantages to public safety “The government is increasingly Continued on p. 456

454 CQ Researcher DNA Testing Helps Free Inmates After Years in Prison NA profiling was too new to be of use when Ronald obtained before widespread use of the technology. “DNA Williamson and Dennis Fritz were tried in 1988 for aids the search for truth by exonerating the innocent,” D the rape-murder of a waitress in Ada, Okla. Attorney General Janet Reno wrote three years ago in the Prosecutors did have some scientific evidence, though. An introduction to a Justice Department report that examined expert from the state’s crime laboratory testified that the 28 such cases. 2 The report showed that the 28 inmates — 17 hairs found on the victim were an exact match to either most of them convicted in the mid-to-late 1980s — served Fritz or Williamson. In addition, the expert said that semen a total of 197 years in prison, or an average of seven years found on the victim could have come from the two men. 1 each, before being released. Reno cited the report earlier The scientific evidence, combined with testimony from this year as one of the reasons for creating the National two jailhouse informers and a convicted felon, satisfied Commission on the Future of DNA Evidence. the jury of the two defendants’ guilt. Williamson, a local Now the commission is working on recommendations that sports hero and former professional baseball player, was would ease the way for post-conviction DNA testing for sentenced to death. Fritz, a junior high school science some defendants. Meeting May 7 and 8 in Santa Fe, N.M., the teacher and coach, received a life commission approved a recommend- prison sentence. ation that prosecutors, defense In April, the two men were both attorneys and judges should allow DNA freed from prison after DNA tests testing of evidence in old criminal cases showed that the semen found on the if the results could conclusively victim’s body could not have come establish the defendant’s innocence. from either Williamson or Fritz. “If everyone agrees that an exclusion Instead, the tests showed a match with would, in fact, exclude someone, one of the witnesses against the two everyone should agree to do the men: Glen Gore, who was serving testing,” says Christopher Asplen, the three 40-year prison sentences on commission’s executive director. kidnapping charges at the time of the The recommendations — due to original trial. be prepared in final form within the AP Photo/J. Pat Carter When they walked to freedom after next two months — also include model Dennis Fritz, left, and Ronald a decade behind bars, Williamson, 46, state legislation to waive statutory Williamson and Fritz, 49, became the 61st and deadlines that might block inmates’ 62nd inmates known to have been freed from prison in requests for DNA tests. Williamson’s lawyer, Barrett, calls the the United States because of post-conviction DNA testing. recommendations “excellent” but said he would go further. Defense lawyers say many more inmates could show they “I think it would be worthwhile to have the DNA evidence were wrongfully convicted if evidence used in their own automatically considered significant if the prosecution trials was subjected to DNA analysis. considered it significant when they were getting a conviction,” “We will get thousands of people out,” Barry Scheck, a Barrett says. lawyer for Fritz and professor at Yeshiva University’s Scheck, who serves on the DNA commission, says the Benjamin Cardozo School of Law in New York, told The group’s recommendations will help inmates get DNA testing New York Times after the two men were released. Scheck, to challenge their convictions. But Asplen, a federal the DNA expert on O.J. Simpson’s defense team, directs a prosecutor, cautions against allowing such testing too freely. legal clinic at the law school — known as the Innocence “We cannot open cases for victims and prosecutors where Project — that has used DNA testing to challenge it would be frivolous to do so,” he says. convictions in scores of cases. In its draft recommendation, the commission concludes, Fritz had been asking for DNA testing since as early as “The need for post-conviction DNA testing will wane over 1989, but officials turned him down. The DNA tests that time. Within the decade, DNA testing with highly exonerated the two men resulted instead from a federal discriminatory results will be performed in all cases in court’s decision in 1995 ordering a new trial for Williamson which biological evidence is relevant, and advanced because of ineffective legal assistance in the 1988 trial. technologies will become commonplace in all laboratories.” Williamson’s new lawyers — Mark Barrett and Sara Bonnell of the Oklahoma Indigent Defense System — requested 1 Background from The New York Times, April 19, 1999, p. A12. the DNA test as part of the preparation for the new trial. 2 U.S. Department of Justice, “Convicted by Juries, Exonerated by Law enforcement officials acknowledge the importance Science: Case Studies in the Use of DNA Evidence to Establish of DNA testing in examining the validity of convictions Innocence After Trial,” 1996.

CQ on the Web: www.cq.com May 28, 1999 455 DNA DATABASES

All States Provide for DNA Databases All the states have passed laws to establish databases containing DNA profiles of convicted offenders. All the laws at least cover sexual offenders. In addition, a majority of the states maintain DNA profiles for offenses against children or murder. Four states — Alabama, New Mexico, Virginia and Wyoming — require DNA profiles of all convicted felons. One state, Louisiana, has a law requiring DNA profiling of arrestees as well as convicted offenders, but the law has not been put into effect.

Kidnapping

Juveniles

Burglary Robbery Offenses

Stalking

Children Offenses

Felonies

Murder

Against Assault

Sex

Only

Date

Alabama 1994 X X X X X X X X X Alaska 1996 X X X X X X X X Arizona 1989 X X Arkansas 1995 X X California 1989 X X X X X X Colorado 1988 X X Connecticut 1994 X Delaware 1994 X X Florida 1990 X X Georgia 1992 X X Hawaii 1992 X X X Idaho 1997 X X X X X X X Illinois 1990 X X Indiana 1996 X X X X X X X X Iowa 1989 X X X X X Kansas 1991 X X X X Kentucky 1992 X X Louisiana 1997 X X X X X X X Maine 1995 X X X X X X X X X Maryland 1994 X X Massachusetts 1997 X X X X X X X Michigan 1990 X X Minnesota 1989 X X Mississippi 1995 X Missouri 1991 X X

Continued from p. 454 In addition, Niezgoda says that Ferrara has made similar argu- for keeping those samples,” counters holding onto the samples would al- ments in the past about keeping the FBI’s Niezgoda. First, he notes that low retesting if a DNA profile were samples, but today he is prepared to the technology used in DNA typing challenged. “No one’s made a mis- change his position. “The forensic changed in the 1990s, requiring the take yet on a hit that I know of,” he science community has now settled retesting of old samples. “Without says. But two states — California and on a standardized [procedure] in DNA those samples in the freezer,” he says, Florida — do reanalyze samples after profiling,” Ferrara remarked in an in- “they’d have to collect [new] samples a match is made, just to double- terview in his office earlier this if the technology changes again.” check. month. “If I got rid of the samples,

456 CQ Researcher Kidnapping

Juveniles

Burglary Robbery Offenses

Stalking

Children Offenses

Felonies

Murder

Against Assault

Sex

Only

Date

Montana 1995 X X X X X X X Nebraska 1997 X X X X X X Nevada 1989 X X New Hampshire 1996 X X X New Jersey 1994 X New Mexico 1997 X X X X X X X X X New York 1994 X X X X North Carolina 1993 X X X X X X X North Dakota 1995 X X Ohio 1995 X X X X X X Oklahoma 1991 X X X X X Oregon 1991 X X X X X Pennsylvania 1995 X X X X X Rhode Island 1998 X X X South Carolina 1995 X X X South Dakota 1990 X X Tennessee 1991 X X Texas 1995 X X X X Utah 1994 X X X X Vermont 1998 X X X X X X X Virginia 1990 X X X X X X X X X Washington 1990 X X X X X X X West Virginia 1995 X X X X X X X Wisconsin 1993 X X X X X X Wyoming 1997 X X X X X X X X TOTALS 50 29 22 36 15 13 20 16 14 6 Note: Congress has not passed a law requiring DNA profiling for federal offenders, including those in the District of Columbia. Source: FBI Laboratory Division, June 1998

I could live with it today because I newborns do. Average individuals do.” know it’s all right.” Law enforcement officials ac- Steinhardt says destruction of knowledge the public concerns about BACKGROUND samples would allay some of his privacy issues. “When you say gov- concerns, but he still worries about ernment and computers and DNA, the “creeping expansion” of DNA da- people’s hair raises,” the FBI’s The Power of DNA tabases. And he predicts that the Niezgoda says. public’s attitude toward DNA data- “You’ve got to decide how much bases will change as a result. of your personal freedom you’re he first use of DNA as a tool for “Once you take it outside the crimi- willing to give up in return for secu- T identification came more than a nal context, there will be substantial rity,” Niezgoda adds. “I can tell you century after the substance was dis- opposition to government data- that from what I hear people are in covered by the German biochemist banking,” Steinhardt continues. “Crimi- favor of the data bank, even in favor Friedrich Miescher in 1869 and some nals don’t have much of a lobby, but of testing all arrestees.” three decades after its molecular

CQ on the Web: www.cq.com May 28, 1999 457 DNA DATABASES structure — the famous “double he- an English courtroom in an episode that notes that police investigating a re- lix” of complementary strands of DNA advocates like Levy today cite as cent rape at a Massachusetts nursing nucleotides — was accurately de- evidence of the unique power of DNA home asked all male workers at the scribed in 1953 by the American bio- typing both to convict the guilty and facility to “cooperate, quote-un- chemist James D. Watson and the exonerate the innocent. 9 quote,” and provide a DNA sample. British molecular biologist Francis The small village of Narborough In the United States, DNA typing Crick. 7 had been shaken by the rape-mur- made its debut more as courtroom The development of DNA typing ders of two teenage girls — in 1983 evidence than as an investigative tool, resulted from genetic research by and 1986. Police identified a teenage according to Asplen. The first convic- scientists in the United States and suspect in the second killing, who tion using DNA evidence appears to England: Roy White of the Howard initially confessed, then recanted and have come in January 1987, when a Hughes Medical Institute at the Uni- then confessed again. The suspect’s Florida teenager was found guilty of versity of Utah and a British geneti- father recalled later that he had heard sexual battery after prosecutors used cist, Alec Jeffreys, at the University of of Jeffreys’ work and asked his son’s DNA analysis of semen taken from a Leicester. lawyer to “look into it.” Police claimed rape victim, along with traditional White developed a technique in they turned to Jeffreys on their own. blood and hair tests, to link him to 1980 that “revolutionized modern bi- In any event, DNA analysis of the crime. 10 ology,” according to Harlan Levy, a semen from both crimes showed that Prosecutors scored at least two former federal prosecutor who traced the offenses were committed by the other convictions with DNA evidence the development of DNA identifica- same person — but not by the sus- in 1987, but also failed to win a tion in his book And the Blood Cried pect in custody. Police then decided conviction in an Oklahoma murder Out. 8 to gather DNA samples — “voluntar- case despite a DNA match between White discovered that when a DNA ily” — from thousands of men in the blood found in the hose of the molecule was cut, certain repetitive area: 4,582 in all. None of the samples defendant’s vacuum cleaner and the patterns could be identified. These matched, but one villager reported to blood of a presumed murder victim. strands of DNA had no known pur- police that he had heard a man in a By 1989, experts were estimating pose, but they could be used to help pub saying that he had paid some- that DNA evidence had been intro- locate specific genes. As Levy ex- one else to provide a sample for him. duced in at least 80 murder or rape plains, the technique was called re- When police went to question the cases in 27 states. Prosecutors were striction fragment length polymor- man, he confessed to both crimes. In enamored of the technique, judges phism (RFLP) because a restrictive Colin Pitchfork’s 1987 trial, the judge and juries seemingly impressed. But enzyme was used to cut DNA into gave credit to DNA typing for the some doubts were being raised — various fragment lengths and the dif- arrest. “If it wasn’t for DNA, you doubts that would be aired and ar- ferences, or polymorphisms, were might still be at large today,” the gued in courtrooms and elsewhere then analyzed. judge said. Today, law enforcement over the next several years. Four years later, in 1984, Jeffreys experts are also quick to note that discovered that some of those repeti- the technique cleared someone who tive patterns at particular locations was innocent. “The first use was just on the DNA “ladder” showed great as important for its exonerative abil- variability between different people ity as its ability to convict people,” Fighting for Acceptance and thus could be used for purposes says the DNA commission’s Asplen. of identification. He published his Civil liberties advocates, on the he infatuation with DNA was still findings the next year in the British other hand, see the story as a harbin- T fresh in January 1988 when journal, Nature, describing the re- ger of DNA dragnets: mass collection California’s attorney general, John sults as a “genetic fingerprint.” He of DNA samples from people without Van de Kamp, sounded a cautionary listed several potential medical appli- any need for police to show prob- note. “We can botch a golden oppor- cations of the technique but also able cause or even reasonable suspi- tunity by rushing too quickly into added that it could be useful for cion on an individual basis. “There court,” Van de Kamp said. 11 Over paternity or maternity testing and in are DNA dragnets, they’ve already the next few years, police and pros- forensic sciences. occurred and it’s only going to in- ecutors worked to develop expertise Within three years, the technique in crease,” says Benjamin Keehn, a in DNA technology, while defense fact did move from the laboratory into Massachusetts public defender. He Continued on p. 460

458 CQ Researcher Chronology

1988 DNA evidence is “not in doubt”; 1950s Molecular Colorado passes law requiring softens stance on laboratory structure of DNA — deoxyribo- genetic samples from convicted standards, racial and ethnic nucleic acid, the basic genetic sex offenders before parole. identification. material of all living cells — is discovered. 1997 • Louisiana passes law requiring 1953 DNA testing of arrestees, but J.D. Watson and Francis Crick implementation is delayed by demonstrate “double helix” 1990s All 50 states financial and logistical issues. structure of DNA. Discovery establish DNA databases for Attorney General Janet Reno lays basis for development of some criminal offenders. creates national commission to modern genetics. study future of DNA evidence. 1990 Twelve states pass legislation April 1998 • requiring DNA samples from Trial judge in Boston rules some offenders; Virginia is first Massachusetts’ law requiring to require samples from all felons. DNA sampling of non-violent 1980s DNA typing is offenders unconstitutional. discovered and first applied in 1991 criminal cases. Scientists debate whether DNA December 1998 experts are exaggerating signifi- New York City Police Commis- 1980 cance of DNA matches within sioner Howard Safir calls for U.S. researcher Roy White discov- ethnic or racial groups. taking DNA samples from all ers technique for cutting repetitive arrestees; proposal is criticized patterns of DNA: restriction frag- 1992 by civil liberties advocates. ment length polymorphism or RFLP. National Academy of Sciences’ report endorses general reliabil- April 13, 1999 1984 ity of DNA evidence, but calls Massachusetts’ highest court British geneticist Alec Jeffreys for higher standards for labora- upholds DNA sampling of all discovers RFLP technique can be tories and more cautious ap- convicted felons, reversing trial applied for identification pur- proach in describing the fre- court decision that had ruled the poses; labels the DNA profile quency of occurence of a par- practice unconstitutional. “genetic fingerprinting.” ticular DNA profile in some instances. May 8, 1999 1985 National DNA commission U.S. geneticist Kary Mullis and 1994 endorses recommendations to others publish first paper de- DNA Identification Act estab- ease inmates’ use of DNA scribing “polymerase chain lishes guidelines for national evidence to challenge convic- reaction” (PCR) to amplify small DNA database, authorizes $25 tions; panel also decides to quantities of DNA for analysis. million over five years in grants oppose DNA profiling of arrestees. to states for setting up databases. 1986-1987 September 1, 1999 DNA profiling exonerates sus- 1995 Louisiana law requiring DNA pect in rape-murder case in O.J. Simpson is acquitted in samples from all arrestees due England; police use mass DNA sensational murder trial after to take effect, but likely to be screening of villagers to locate defense lawyers attack prosecu- delayed because of funding, perpetrator. tors’ DNA evidence. technical difficulties.

1987 1996 DNA identification is introduced National Academy of Sciences’ in criminal cases in the U.S. second report says reliability of

CQ on the Web: www.cq.com May 28, 1999 459 DNA DATABASES

Continued from p. 458 investigation and justice,” but cau- DNA identifications, and courts did lawyers often tried to discredit DNA tioned that the technology was “vul- not require expert witnesses to com- evidence in court. Some scientific nerable to error” and interpretation of ply with the committee’s methodol- experts supported some of the cri- results required “an appreciation of ogy in giving their testimony. 14 tiques — in particular, over the issue the principles of population genetics.” Today, the issue has diminished in of the degree of certainty that could On the racial grouping issue, the importance because DNA profiles are be given to a DNA match within a report recommended a conservative based on an examination of a larger particular racial or ethnic grouping. approach — known as “the ceiling number of “loci,” or sites, on the DNA In the face of some scientific uncer- principle” — that limited the statisti- molecule: The FBI standard of 13 loci tainty, some courts initially were slow cal significance to be given to a DNA is now in more or less universal use. to accept the evidence. By the middle match in comparison to the so-called With each additional site, the likeli- of the 1990s, however, the legal product rule favored by more enthu- hood of a coincidental match is di- doubts were largely suppressed and siastic DNA advocates. The report minished and the resulting “identifica- the admissibility of DNA typing in noted that varying approaches had tion” can be stated with greater statisti- court firmly established. produced wild variations in court- cal certainty. “The forensic community The debate over racial and ethnic room testimony about the possibility has more or less all agreed that this is groupings was densely statistical, but of a coincidental match — ranging the way we’ll calculate these numbers,” fiercely fought and critical to court- from one in 500 to one in 739 billion Ferrara says. “When you have a de- room use of DNA typing. The issue in one case cited. The more conser- clared match, for all intents and pur- was publicly aired in the scientific vative approach, the report con- poses that’s an identification.” community in a pair of articles in the cluded, represented “the most pru- journal Science in December 1991. A dent course for the future.” prominent Harvard geneticist, Rich- The report also recommended a ard Lewontin, and a colleague from series of safeguards for laboratories Washington University in St. Louis, performing DNA analyses. The issue Gaining Acceptance Daniel Hartl, argued that DNA advo- reflected a concern about quality as- cates were ignoring genetic similari- surance at the private laboratories that y the middle of the 1990s, DNA ties within specific ethnic subgroups were the first to offer DNA typing — B evidence was no longer a scien- and consequently overstating the sig- and that had a financial incentive in tific curiosity but an established fo- nificance of a DNA match. Without promoting use of the technology. The rensic technique. Police and pros- subpopulation studies, they wrote, report’s recommendations appeared ecutors used it in investigations and the high probabilities of identifica- to be so restrictive that The New York criminal trials, while defense lawyers tion being testified to in court were Times initially described them as discovered the technology sometimes “unjustified and generally unreliable.” amounting to a “moratorium” on DNA could produce powerful evidence to In an unusual step, the journal evidence. When the report was actu- exonerate a defendant years after his published a simultaneous rebuttal by ally released, the committee’s chair- conviction. Courts accepted the evi- two other geneticists: Ranajit man, Victor McKusick of Johns dence in trials and sometimes even Chakraborty of the University of Hopkins University, said the Times in post-conviction challenges. And Texas and Yale’s Kenneth Kidd. They report was wrong — and the newspa- the public, too, came to regard DNA insisted that genetic differences were per ran a corrected story the next day evidence as valid and reliable. great even within population sub- under a headline that admitted the Levy cites one especially telling groups and that what they called previous story was “in error.” demonstration of the power of DNA “conservative” estimates of a match Even with that high-level correc- evidence: a Baltimore rape case in provided “overwhelming evidence tion, the report still attracted strong which the victim identified the wrong that cannot be coincidental.” 12 criticism from many scientists and law person as the perpetrator. 15 The vic- A National Academy of Sciences enforcement advocates of DNA evi- tim in the 1990 assault told police that committee on DNA technology gave dence. The result, according to Levy’s she had been attacked by her es- further airing to the issue in April 1992 account, was “an extraordinary vic- tranged boyfriend. After the boy- in a comprehensive report on the use tory” for the scientific critics of the friend’s arrest, however, a DNA analy- of DNA evidence in court. 13 The re- report. The academy itself agreed to sis showed that semen recovered from port opened by describing DNA typ- create a new committee to re-exam- the woman came from somebody ing as a “powerful tool for criminal ine the issues of race and ethnicity in Continued on p. 462

460 CQ Researcher Databases and DNA Dragnets Aid Police in England

ngland is far ahead of the United States in building screening. In that case, police discovered that a suspect a DNA database of criminal offenders and using DNA had fled to South Africa without providing a sample, but E profiling in criminal investigations. But Americans would South African police obtained a DNA sample from the rebel at some of the tactics that English police use, according man and sent it back to England for profiling. to U.S. law enforcement officials and civil liberties advocates. Police in the United States have not used such tactics The United States is still working to establish a and would not be able to force anyone to provide a DNA nationwide DNA database, four years after the Forensic sample without a search warrant based on specific Science Service for England and Wales established the information implicating the individual. By contrast, world’s first such computer-linked file of DNA profiles of Gammon says Britons appear to have no problem with the criminal offenders in 1995. Today, the British database technique. “People in this country, thankfully, still are includes profiles of more than 360,000 offenders and about shocked by heinous crimes, and they want to help the 27,000 crime scene samples. That’s much bigger than the police in any way they can,” he says. FBI’s data bank, which currently has about 150,000 U.S. law enforcement officials acknowledge that the offenders and 7,000 crime scene samples despite the United United States lags behind Britain on working with DNA States’ greater population and higher crime rate. Only 12 profiling. “It was really [Britain] that took the lead,” says states are hooked up to the FBI’s database so far. Christopher Asplen, executive director of the Justice Police in England and Wales say the DNA database is Department’s National Commission on the Future of DNA a valuable crime-fighting tool on a daily basis. “We’ve Evidence. But Asplen and others also acknowledge that solved a large number of cases that were originally based civil liberties and privacy concerns are stronger in the solely on DNA profiles,” says Peter Gammon, president of United States than in Britain. “In the United States we the Police Superintendents Association. As of last fall, the have a different perspective on privacy and on the extent independent forensic service said the DNA database had to which we would be willing to depend on a database,” matched 28,000 individuals to crime scenes — roughly, an he says. average of 700 a month over the life of the data bank — Civil liberties advocates say more directly that Britain’s and made 6,000 links between crime scenes. By experience has little relevance to the United States. “They comparison, the FBI counted only 182 “offender hits” and don’t have a Bill of Rights. They have different views of 233 crime-scene hits from its DNA database through July civil liberties than we do,” says Barry Steinhardt, associate 1998. director of the American Civil Liberties Union. “We fought The starkest contrast between the two countries, though, a revolution against England because of our opposition to is the use of mass DNA screening — in effect, DNA the kind of general searches that were conducted by the dragnets — to investigate crimes in Britain. In several British colonial powers. That’s why we have the Fourth high-profile cases, police in England or Wales have Amendment. It was a direct reaction to standardless collected DNA samples from hundreds or even thousands searches conducted by the British, and that’s what these of people from the area where the crime occurred in an DNA searches are.” effort to identify a suspect. Theoretically, cooperation with Gammon, however, did draw opposition in England the investigation is “voluntary,” though police sometimes last year when he called for establishing a universal DNA make clear that anyone who refuses to provide a DNA database — with profiles from the entire population. “It sample may face more intensive investigation as a result. would save a lot of time and money,” Gammon says. But In fact, the first application of DNA profiling in a criminal he acknowledges the plan “has some real ramifications in case entailed the use of mass DNA screening of more than terms of civil liberties.” 4,000 people to try to flush out a suspect in a pair of rape- The police group shelved the idea after it was criticized murders in a small village in the English Midlands in 1986. both on both privacy grounds and on practical consider- The apprehension of the suspect and his subsequent ations: the cost of establishing the database was put at 20 conviction were the subject of a best-selling book, The million pounds (about $32 million). Instead, police are Blooding, written by the American crime author, Joseph now talking about a voluntary database of DNA profiles. Wambaugh. More recently, police in South Wales took Gammon says the broader database could still help police DNA samples from about 2,000 men in a Cardiff even if it did not include everyone. “It’s an interesting neighborhood in 1995 to solve another rape-murder of a development, and it hasn’t been written off,” he says. teenage girl. 1 And Gammon recalled that police in Bristol, England, solved a 1997 rape-murder case with mass DNA 1 See The Washington Post, Feb. 2, 1996, p. A21; April 14, 1995, p. A1.

CQ on the Web: www.cq.com May 28, 1999 461 DNA DATABASES

Continued from p. 460 nique was also refined by the use of National Research Council decisively else. The stunned prosecutors ar- additional, easier-to-locate stretches reaffirmed the validity of DNA typing ranged for the man’s release and of DNA for analysis — known as and softened some of the recommen- pressed police to investigate further. “short-tandem repeats” or STRs. dations of its first report on the issue Finally, police came upon a sec- One dramatic application of PCR four years earlier. “The admissibility ond man, a friend of the original analyses came in the case of one of of properly collected and analyzed defendant and a former boyfriend of the suspects in the Feb. 26, 1993, DNA should not be in doubt,” stated the victim’s roommate. The two men bombing of the World Trade Center the report — which came to be known resembled each other enough to in New York City. Three days after as NRC II. 18 The report backed away explain the misidentification. The vic- the bombing, The New York Times from some of the recommended safe- tim clung to her original identifica- received an anonymous letter claim- guards in the earlier report and, most tion, however, even after a DNA ing responsibility for the blast. Police significantly, endorsed the less restric- analysis showed the semen was the recovered saliva from the envelope tive methodology for characterizing friend’s. Prosecutors decided to ac- flap and had a PCR analysis per- the significance of a DNA match. Levy cept a guilty plea with a 40-year formed, which showed a possible says the report — without mention- prison sentence. Without the DNA match with a suspect, Nidal Ayyad, ing the Simpson case by name — evidence, the prosecutor in the case who had previously been implicated “seemed to limit some key avenues of told Levy, the wrong man “would by circumstantial evidence. The DNA attack” that his attorneys had used in have been sent to prison.” “identification” was weak: the possi- the trial. 19 The use of DNA evidence was also bility of a coincidental match was boosted by application of a different one in 50. But it combined with the technology that made it possible to other evidence to satisfy the jury. analyze samples containing minute Ayyad was convicted. amounts of blood or semen. The tech- The most visible use of DNA evi- Creating Databases nique — known as polymerase chain dence — less auspicious for DNA reactions or PCR — had been devel- advocates — came in 1995, with the he idea of creating DNA databases oped in the 1980s by American bio- sensational murder trial of O.J. T emerged quickly after the tech- chemist Kary Mullis, then working Simpson, the former football star, for nology was introduced into court- with the Cetus Corp., a California the stabbing deaths of his former rooms and police laboratories, both biogenetics firm. 16 Mullis, who was wife, Nicole Brown Simpson, and a in England and in the United States. researching the genetics of sickle cell friend of hers, Ronald Goldman. 17 States began passing laws requiring anemia, figured out a way to get The prosecutors had DNA evidence genetic samples from some convicted around the recurrent problem of hav- to show that blood with DNA match- offenders as early as 1988. Congress ing too little DNA to work with. By ing Simpson’s was found at Brown’s gave its support to the idea in 1994 introducing a DNA sample in a bio- house and that blood spots in by authorizing grants to the states logical substance (known as a poly- Simpson’s car and at Simpson’s house and establishing guidelines for a merase), Mullis produced a chain re- contained DNA matching Nicole national database. Defense lawyers action in which the original DNA was Simpson’s and Goldman’s. and civil liberties advocates criticized repeatedly replicated. The technique Against such seemingly powerful many of the moves along the way allowed a minute trace of DNA to be evidence, a defense team led by Scheck and argued in court against the most “amplified” a millionfold or more. mounted a determined attack to show expansive database proposals. So far, Mullis was awarded the Nobel that the DNA evidence was either federal and state courts have uni- Prize in chemistry in 1993 for his tainted by laboratory contamination or formly upheld DNA sampling from discovery. Despite its obvious appli- planted by corrupt police officers. The convicted offenders, but the issue of cations to crime scene investigations, strategy worked. To the vast surprise of testing arrestees or others has yet to however, the technique did not gain the worldwide audience for the trial, be squarely joined in court. immediate acceptance in police fo- the Los Angeles jury on Oct. 3, 1995, FBI officials were predicting as rensics — in part because the FBI found Simpson not guilty. early as 1988 that DNA typing would was slow in developing guidelines DNA advocates worried that the become as routine as fingerprinting for its use. Gradually, though, the Simpson verdict could be a setback and were talking about the possibil- technology became more common for the technique, but the fears proved ity of linking state databases to a and its value recognized. The tech- to be unfounded. Within a year, the national system comparable to the

462 CQ Researcher bureau’s national fingerprint files. 20 But in a dissenting opinion, Judge April, however, the state’s highest Colorado passed a law in 1988 re- Francis Murnaghan discounted the court reversed the decision in a unani- quiring genetic sampling of convicted usefulness of taking DNA samples mous opinion. “The state has an es- sex offenders before they could be from non-violent offenders and tablished and indisputable interest in paroled. California began consider- warned that Virginia was “taking sig- preserving a permanent record of ing the creation of a statewide data- nificant strides toward the establish- convicted persons for resolving past base the next year. Virginia became ment of a future police state.” Three and future crimes,” the court declared, the first state to require DNA samples years later, a federal appeals court “and now will use DNA identification from all convicted felons in 1990 — upheld, in another split opinion, a for these purposes.” 23 one of 12 states to pass some form narrower Oregon law requiring DNA of DNA sampling legislation that year. sampling only of violent and sexual By 1994, 29 states had passed such offenders. Inmates in each case asked laws; by 1998, all had done so. 21 the U.S. Supreme Court to review the Congress threw its support behind decisions, but the justices declined to CURRENT the creation of DNA databases in 1994. take up the issue. 22 The DNA Identification Act, part of State court cases challenging DNA SITUATION the omnibus Violent Crime Control databases were similarly unsuccess- and Law Enforcement Act, specifically ful, allowing the expansion of the authorized the FBI to establish a na- databases to proceed without legal tional index of DNA identification obstacles. Even as some states were Expanding Databases records of “persons convicted of beginning to set up DNA databases, crimes” and analyses of DNA samples other states that initially collected recovered from crime scenes and samples only from certain groups of ov. George E. Pataki, R-N.Y., samples recovered from “unidentified criminals — most commonly, sex G was flanked by police, prosecu- human remains.” Disclosure of the offenders — were changing their laws tors and his own criminal justice chief information was permitted only to to take samples from all felons. But when he unveiled details last month criminal-justice agencies “for law en- states did face practical constraints in of a legislative proposal to dramati- forcement purposes,” in judicial pro- expanding the databases: money, cally enlarge the state’s DNA data ceedings, and for limited research or time and expertise. Hundreds of thou- bank. Pataki’s plan, announced at a quality-control purposes after removal sands of DNA samples were collected news conference on April 13, calls of personally identifiable genetic in- but went unanalyzed. Today, the for expanding the database to include formation. The act also authorized $25 backlog is estimated at 480,000 and anyone convicted in the state of a million over a five-year period in is continuing to grow. In addition, felony or attempted felony. In addi- grants to the states to help set up simi- states have failed to collect samples tion, Pataki also wants the director lar databases; states seeking grants from tens of thousands of offenders of his criminal justice service to study had to abide by the same safeguards who are required by law to provide the possibility of including arrestees on disclosure. them. “There are a tremendous num- in the data bank. 24 Court cases challenging the DNA ber of people who should be in the The proposal — if enacted and databases began soon after their cre- system but aren’t in the system,’’ fully implemented — would take ation. The federal appeals court in Asplen says. samples from about 50,000 offenders Richmond, Va., ruling in 1992 in a After an uninterrupted string of a year and would expand the data- suit brought by six Virginia inmates, courtroom victories, advocates of base more than tenfold. It currently upheld the state’s law enacted two DNA databases suffered their first le- includes samples from about 6,000 years earlier requiring DNA sampling gal defeat last August when a lower people convicted since 1994 of any of all convicted felons. The majority court judge in Boston invalidated the of 21 crimes, including sex offenses, opinion called DNA testing “a dra- Massachusetts law requiring sampling homicide or felony assault. “The matic new tool for the law enforce- from violent and sexual offenders. untapped potential for advancing ment effort to match suspects and The judge agreed with the inmates’ public safety is enormous,” Pataki criminal conduct” and called the col- claim that the 1997 law — not yet put told reporters. lection of samples a “minimal” intru- into effect at the time — amounted The governor failed to acknowl- sion comparable to fingerprinting all to an unreasonable search under both edge, however, that even the present arrestees at the time of booking. the federal and state constitutions. In value of the state’s existing database

CQ on the Web: www.cq.com May 28, 1999 463 DNA DATABASES is itself untapped. When Pataki first down, Ferrara has contracted with a predict the legislature will approve called for expanding the database in private laboratory in Northern Vir- some expansion of the state’s data- his annual state of the state speech ginia, Bode Technology, which is pro- base. But financial and logistical in January, the newspaper Newsday cessing some 2,000 samples a week. considerations may weigh against reported that only 1,500 of the 6,000 If no new samples were added, it covering all convicted felons. samples had actually been analyzed. would still take two years to elimi- In addition, the library of profiles nate the backlog. was not being used because guide- Ferrara also joined with other lines had yet to be drawn up for its members of the DNA commission in operation — nearly five years after calling for federal funds to help states Working the Cases enactment of the law creating the do the work. “This would be the one database and three years after the area where it would be useful to hen sheriff’s deputies in Maricopa first samples were drawn. Officials throw money at the problem and see W County, Ariz., found Denise were hoping to complete the guide- some results,” Ferrara explains. The Johnson’s body in a remote location lines by the end of the year, the commission asked for $22.5 million outside Phoenix several years ago, newspaper reported. 25 in the coming fiscal year; the Clinton one of the clues at the scene was a New York’s example is typical. All administration included $15 million scar on a nearby tree that looked as 50 states have DNA database laws, in its proposed budget. though it might have resulted from a but many of the databases are on Even more worrisome, Niezgoda collision with a pickup truck. By a paper rather than on-line. The FBI’s says, is the backlog of unanalyzed fortunate coincidence, the tree was national database was announced crime-scene evidence. “We’ve got thou- an unusual type that grows wild and with fanfare in October, but only 12 sands of rape kits that are just sitting in was susceptible to DNA identifica- states have hooked up so far, accord- lockers,” Niezgoda says. “It’s like hav- tion. When deputies later arrested ing to Niezgoda. The database in- ing a database of fingerprint cards but Mark Bogan for the killing, they found cludes about 150,000 offenders — a never dusting for fingerprints.” seedpods in the bed of his pickup tiny fraction of the 33 million indi- “It’s more than just money,” truck — seedpods that a DNA analy- viduals in the FBI’s criminal finger- Niezgoda adds. “The crime-scene side sis showed were a likely match for print files — and about 7,000 DNA needs people and needs training, seedpods from the tree at the murder profiles from crime-scene evidence. both in the forensic science and in scene. The evidence convinced a jury Louisiana, the only state with a the courtroom.” that Bogan was lying when he denied law on the books to collect DNA Despite the implementation prob- being at the murder scene; he was samples from arrestees, has no state- lems, lawmakers in many states are convicted of first-degree murder and wide database yet — two years after taking up proposals this legislative sentenced to life imprisonment. the law was passed. The law is theo- season to expand the coverage of Bogan’s 1993 murder conviction — retically due to take effect on Sept. their state database laws. There is believed to be the first case in the United 1, but Louisiana officials say funding also a bill pending in Congress to States based on plant DNA identifica- and implementation problems will require DNA sampling of federal tion — gives one more indication of the likely result in another delay. “We offenders, including offenders in the variety of uses of DNA technology in would like to see it get through,” says District of Columbia. The bill, intro- the courtroom. “There is nothing com- Pat Wojtkiewicz, who runs a regional duced by Sens. Mike DeWine, R- parable to that in the fingerprint area,” forensic science laboratory in Shreve- Ohio, and Herb Kohl, D-Wis., would says George Washington’s Rowe. “We port that serves northern Louisiana. fill a seemingly inadvertent gap; it have this extremely powerful tool. We “We think we could solve a lot of would require sampling of offenders just don’t know how far we’ll be able to cases that way.” convicted of murder, armed robbery run with it. It’s just a question of how Nationwide, a daunting backlog of and burglary, among other crimes. 26 imaginative we can be with the use of DNA samples has been collected but Civil liberties advocates concede DNA.” not analyzed. Virginia, which has that expansion of DNA databases to Police and prosecutors are already been taking DNA samples from all cover more convicted offenders is using their imagination to use DNA felons since 1990, has the biggest difficult, if not impossible, to stop. technology in investigating and pros- individual backlog: about 180,000 Steinhardt concedes the federal bill is ecuting more cases. When DNA typ- samples collected but awaiting analy- likely to be passed if it gets to the ing was first developed, advocates sis. To try to whittle that number floor, and observers in New York Continued on p. 466

464 CQ Researcher At Issue: Should DNA samples be collected from arrestees and included in law enforcement databases?

HOWARD SAFIR BARRY STEINHARDT New York City Police Commissioner Associate Director, American Civil Liberties Union

WRITTEN FOR THE CQ RESEARCHER, MAY 1999. WRITTEN FOR THE CQ RESEARCHER, MAY 1999.

xpanding the use of DNA data-banking will greatly he proposed creation of wholesale DNA data banks of assist law enforcement in its crime-fighting efforts. anyone who is arrested for any reason presents a e The sooner in the process that this reliable and t frightening potential for a “brave new world” in powerful technology is employed, the greater the benefits. which genetic information is routinely collected and used That is why I am calling for the taking of DNA samples in ways that will result in abuse and discrimination. from all those arrested for a fingerprintable offense. By Let’s start with what should be the obvious. Arrest does excluding suspects early in the process, valuable time and not equal guilt and no one should suffer the consequences of resources will be saved. guilt until after they have been convicted. Forcing arrestees to In addition to identifying the guilty, it will also quickly provide blood samples does not serve any legitimate security exonerate the innocent. Sixty people have been exonerated concern when there are ample other means of confirming through post-convictionyes DNA analysis. Unfortunately, there identity. The only possibleno justification is investigatory, and if may be others who have been wrongly convicted of crimes. law enforcement has reason to suspect an individual then it Taking DNA samples from all arrestees will prevent such can and should seek a warrant. unfortunate mistakes from happening. It also should be obvious that DNA is not analogous to Data-banking arrestee profiles will also enhance our a fingerprint. DNA samples can provide insights into the ability to solve crimes. We simply need to look at England’s most intimate workings of the human body, including the experience with DNA data-banking. There, DNA samples are likelihood of the occurrence of over 4,000 types of genetic taken from anyone arrested for a misdemeanor or felony. conditions and diseases. Given the scope of information Since 1995, they have linked 36,000 suspects to crime scenes how can anyone justify forced testing of a person arrested and 6,700 crime scenes to other scenes. for jaywalking or taking part in a political demonstration? While the existing convicted-offender data banks are a Our country has a long history of creating databases for good start, they do not go far enough. Only the FBI and 12 one purpose that later assume additional functions. For states participate in the national convicted-offender data- example, census records created for general statistical bank system; to date, only 450 matches have been made. purposes were used during World War II to round up England has at least that many hits in a week. Additionally, innocent Japanese-Americans and to place them in intern- my staff reviewed 100 forcible sexual assault cases; only 18 ment camps. offenders had previous convictions that would have included Notwithstanding the constitutional impediments, the them in this state’s data bank. Under the law I propose, 75 single greatest obstacle to the DNA database proposal now would have been included. is the existing backlog of 450,000 unprocessed samples. Using this technology, however, carries an obligation to With an estimated 15 million arrests last year, it makes no protect individual rights and privacies. Safeguards should be sense for law enforcement even to consider putting its put in place to control the operation of the data bank. If a dollars into collecting and processing samples from people person is acquitted or not prosecuted, their profile would be who have never been convicted of a crime. Wouldn’t it expunged from the data bank and the sample destroyed. make more sense to put scarce resources into processing The information contained in the data bank would be used the overwhelming backlog of samples, not to mention for law enforcement identification purposes only. It would those that will continue to be generated under the existing not be used for medical research or insurance purposes, and program? it would be a crime to misuse the information. For those who think otherwise, prepare for this modifi- We need to responsibly use the technology available to cation of the Miranda warning: “You are under arrest. solve crimes and prevent others from being victimized. My Anything in your DNA can and will be held against you proposal to take DNA samples from arrestees offers the right and your family in a court of law . . . and by insurance balance between a person’s privacy rights and the right of companies, medical researchers and hackers who break all citizens to live in a crime-free society. It will act as both into the system.” By the time you call your lawyer, it may a sword and a shield, identifying the guilty and exonerating be too late. the innocent.

CQ on the Web: www.cq.com May 28, 1999 465 DNA DATABASES

DNA Testing of Newborns Stirs Privacy Debate

magine your worst nightmare as a parent: Your child then we’re off on a path that we’re concerned about.” is missing — perhaps abducted, maybe feared lost in a The Florida House of Representatives passed a bill in I plane crash or some natural disaster. A body is recovered. March to require hospitals to offer DNA sampling for It may be your child, but the normal forensic techniques newborns, but the measure stalled in the state Senate after cannot make a positive identification. What to do? drawing opposition from the Florida Hospital Association. One answer being pushed by some law enforcement “We are very supportive of the concept of hospitals’ officials and missing-child advocacy groups is DNA profiling voluntarily offering this,” says Bill Bell, the association’s of children at birth. But some civil liberties advocates fear lobbyist in Tallahassee. “The problem with this particular that an idea now being discussed as a voluntary option piece of legislation is that it mandated that hospitals offer for parents could be expanded in the future to become this.” mandatory registration of DNA identifications for everyone Issues surrounding DNA testing of newborns have flared from birth. elsewhere around the country. New York City Mayor In Florida, some 34 hospitals are participating in a Rudolph Giuliani drew sharp criticism in December when program organized by the Florida Department of Law he said, in response to a reporter’s question, that he Enforcement to give parents the chance to have their would have “no problem” with DNA testing or finger- newborns’ DNA tested at birth. Parents take the DNA printing of all children at birth. “There is absolutely no sample home with them on a specially treated card that reason why people should be afraid of being identified,” can be stored for life. Officials stress that the program is Giuliani said. 1 voluntary and that neither the hospital nor the state agency “This really does evoke the specter of Brave New World,” keeps a sample. responded Norman Siegel, executive director of the New “Well over 95 percent of the parents who we offered this York Civil Liberties Union. Giuliani’s police commissioner, agreed to have the DNA sample taken,” says Warren Jones, Howard Safir, who advocates expanding DNA testing of vice president for public relations at Tallahassee Memorial criminal offenders to include arrestees, quickly stepped in to Hospital. “Many parents seemed to take some comfort in stress that he had made no proposal for testing newborns as knowing that that sample would be available if needed.” suggested by the reporter’s question. “We’re very proud of it,” says Jennifer McCord, Meanwhile, more Florida hospitals are expected to join spokesperson for the state agency. The program began as those that are already offering parents the option of DNA a pilot project with Tallahassee Memorial last year and sampling for newborns. The cost is relatively nominal — grew quickly to the 34 hospitals participating today. about $1.40, according to Jones. McCord says the department views the program as a Rep. Bob Starks, a six-term Republican lawmaker who success even though so far none of the DNA samples sponsored the House bill, insists that privacy advocates taken has been put to use in identifying a youngster. But have no cause for concern. “We have all the safeguards to Larry Spalding, legislative counsel for the Florida chapter make sure privacy is protected,” he says. of the American Civil Liberties Union (ACLU), says he is But Spalding disagrees. “We’re slowly eroding privacy “nervous” about the idea. “I understand that that would as technology advances,” he says. “The bad part about it give parents some closure and peace of mind,” Spalding is that when you voluntarily give up a right, it’s much says. “But I can also foresee that [in the future] we could easier to expand it and say, ‘We haven’t had any problems have a situation where we had a child who didn’t have so far, so why don’t we go further?’ ” this identification and we come back and say had this been mandatory, we could have resolved this issue. And 1 Quoted in The New York Times, Dec. 17, 1998, p. B4.

Continued from p. 464 scene. Prosecutors in Orange County, while under interrogation. 27 The sus- cautioned that it would be useful only Calif., for example, have won murder pect, Ahron Kee, who had been ar- in a relatively few cases — mostly convictions in three cases where DNA rested on a petty theft charge, was rapes and homicides — where the samples were obtained from a base- being questioned in connection with perpetrator’s blood or semen could ball bat, a hammer and a rope. a June 1998 slaying. A DNA analysis be obtained. Today, however, DNA In New York City, detectives re- on Kee’s saliva linked him not only to typing can be performed on trace cently obtained a DNA sample from a the killing but also to two other homi- amounts of blood, sweat or saliva that murder suspect less directly — from cides and two rapes of teenage girls. a perpetrator might leave on a mur- the saliva he left behind on a coffee Such deceptive practices concern der weapon or an object at a crime cup that he had been drinking from some civil liberties advocates. “This

466 CQ Researcher is a form of search that should be sive,” says Thomas Bode, president used DNA typing to try to determine done only after the police have ob- of the Virginia company. “This will whether Thomas Jefferson fathered a tained a warrant,” says the ACLU’s cut down on that labor intensity to a child by his African-American slave, Steinhardt. “It shows how arbitrarily significant degree.” The device would Sally Hemmings. Human rights activ- police officers can act and why they also cut the cost of DNA profiles per- ists applied DNA technology to es- should not be given the power to haps to as low as $10-$20, less than tablish the identity of a young girl decide who will be DNA tested based half of the current cost. whose parents were killed by the on an arrest.” Civil liberties advocates say they Argentine military when she was an But Safir calls the police tactic have no problems with the technol- infant. “perfectly legal and certainly proper.” ogy, but still worry about its applica- For many people, however, the cre- “If a suspect leaves a coffee cup tion. “The underlying problem is not ation of DNA databases raises concerns behind, it’s abandoned property,” the technology,” says Steinhardt. “It that the technology has a dark side, that Safir says. “We have every right to is the existence of large databases it will be used to unlock personal ge- use that for investigative purposes.” and collections of DNA that have netic secrets. “It’s a cost to some people, Police and prosecutors in some great potential for misuse.” it’s not a cost to others,” says Asplen of places, such as Orange County, are the Justice Department’s DNA evidence also using DNA databases not only to commission. link suspects to specific crimes but Some advocates of law-enforce- also to try to link crimes with com- OUTLOOK ment DNA databases acknowledge mon features. “If we had a crime with some dangers for privacy rights in the a rope that happened in a park, we use of genetic information outside the would put park and rope in there criminal justice system. “If I have my and all the crimes that had a similar New Applications child tested, who else is going to have situation would automatically come access to that information?” Virginia’s on the screen,” explains Tori Ferrara asks. “We’re going to have Richards, a spokeswoman for the oday, nearly five decades after difficult questions to face about who Orange County district attorney’s of- T Watson and Crick discovered the has that information and who has fice. “If we had somebody who was secrets of DNA, the study of genetics access to that information.” arrested for that, we could run that enables scientists and doctors to di- But Ferrara and other law enforce- person’s DNA through the system and agnose and treat diseases, develop ment officials minimize the dangers link that person with these other new plants and vegetables and even from DNA databases on criminals. offenses.” to produce clones of adult sheep. “It’s hard for me to look at the con- Meanwhile, a San Diego-based The applications of DNA technol- victed-offender databases and think company is working to develop a ogy in forensic science are at least as that they’re going to abuse those device to allow police to perform DNA startling and, for many people, as samples,” Ferrara says. analyses right at a crime scene. 28 The wondrous. But DNA technology does Civil liberties advocates are less device, about the size of a 3 x 5 index not eliminate the need for old-fash- sanguine. “We are seeing an ever- card, is equipped with a microchip in ioned police work. DNA evidence is widening circle of DNA surveillance,” the center that can be connected to a not available in all criminal cases and says the ACLU’s Steinhardt. “Every portable computer. A DNA sample in many cases is not determinative — expansion of data banks and every can be placed in the device, analyzed for example, in a rape case where the new use of those data banks increases on the spot and computer-checked defense is consent. the risk of abuse and discrimination,” against profiles in a remote database. Beyond the criminal justice sys- Steinhardt says. Officials of Nanogen, the company tem, DNA identification has a host of Steinhardt says some concerns working on the device under contract other applications. It is now often about criminal-offender databases with the National Institute of Justice, being used in paternity disputes — could be eased if the DNA samples the research arm of the Justice De- providing results far more reliable were destroyed after identification partment, say the device could be in than previous techniques, such as information was entered. For any police cars within two years. Bode blood typing. Military officials turned databases that include arrestees, Technology Group will be testing pro- to DNA analyses recently to identify Steinhardt says, profiles should be totypes this summer. “The current a Vietnam-era soldier buried in the expunged if no conviction is ob- processes are very, very labor-inten- Tomb of the Unknowns. Historians tained. New York police Commis-

CQ on the Web: www.cq.com May 28, 1999 467 DNA DATABASES

sioner Safir agrees on the need to nature of disease. Most Icelanders ders (1989). Summaries are drawn from expunge DNA profiles in dismissed appear to favor the plan despite Levy, op. cit., pp. 26-31, and Shapiro, op. cases, but sees no special concern in opposition from some privacy- cit., pp. 302-303. 10 taking DNA samples as part of the minded critics. 29 See Debra Cassens Moss, “DNA — The normal police booking process. “We Billings criticizes the idea, but New Fingerprints,” ABA Journal, May 1, 1988, pp. 66-70. take fingerprints at the time of ar- credits Icelanders with giving the 11 Quoted in Moss, ibid., p. 68. rest,” Safir says, “and there is no proposal more serious consideration 12 See R.C. Lewontin and Daniel J. Hartl, reason that we should not pass leg- than data-banking has received so far “Population Genetics in Forensic DNA islation to take DNA samples.” in the United States. “They had a very Typing,” Science, Dec. 20, 1991, pp. 1745- For its part, the Justice Depart- broad debate about the problem,” 1750; Ranajit Chakraborty and Kenneth K. ment commission has now decided Billings says. “Such a standard has Kidd, “The Utility of DNA Typing in Foren- to oppose DNA testing of arrestees, not been met in the United States.” sic Work,” ibid., pp. 1739-1745. For a sum- at least for the time being, but prima- “The big issue is the balance on mary of the debate, see Levy, op. cit., pp. rily because of the urgency of deal- privacy,” the FBI’s Niezgoda ac- 111-116. 13 ing with the backlog of already-col- knowledges. “As the technology National Research Council, op. cit., See lected DNA samples awaiting analy- gets cheaper, and the privacy is- Levy, op. cit., pp. 117-120. 14 Ibid., p. 121. sis rather than because of civil liber- sues become less theoretical, then 15 Levy, ibid., pp. 87-103. ties concerns. “Absent very substan- as a nation we have decisions to 16 Ibid., pp. 138-141. See also Paul Rabinow, tial financial support, taking DNA make.” Making PCR: A Story of Biotechnology from arrestees would do more harm (1996). than good,” Asplen says. The com- 17 See Levy, op. cit., pp. 159-188. mission will be advising Attorney Notes 18 National Research Council, The Evaluation General Reno of its position in a of Forensic DNA Evidence (1996), p. 2. 19 letter within the next two months. 1 Background on the Jones case drawn from Levy, op. cit., p. 193. 20 Whatever law enforcement agen- the Daily News (New York), April 8, 1999; See Jean L. Marx, “DNA Fingerprinting cies do, however, one critic warns April 9, 1999; The Associated Press, April Takes the Witness Stand,” Science, June 17, 9, 1999. 1988, pp. 1616-1618. that the biological samples routinely 21 2 “1998 CODIS DNA Laboratory Survey,” collected in hospitals and university For background, see Robert K. Landers, FBI Laboratory Forensic Science Systems medical centers could pose an even “Solving Crimes With Genetic Fingerprint- ing,” Editorial Research Reports, June 30, Unit, January 1999, p. 10. greater danger to individual privacy. 22 The cases are Jones v. Murray, 4th U.S. “If they get analyzed and stored in 1989, pp. 353-364. 3 See Paul R. Billings (ed.), DNA on Trial: Circuit Court of Appeals, April 7, 1992; Rise ways that can be interchanged, then Genetic Identification and Criminal Justice v. Oregon, 9th U.S. Circuit Court of Ap- you have an enormously powerful (1992). Billings is now the administrator for peals, July 18, 1995. 23 system,” Billings says. The result, he three veterans hospitals in Texas. The case is Landry v. Attorney General, says, could be “a potential enhance- 4 The Web site address is http://www.hope- April 12, 1999. 24 ment for government surveillance that dna.com. Quotes and background drawn from New is disproportionate to government 5 Council for Responsible Genetics, “Posi- York Law Journal, April 14, 1999, p. 1. 25 control.” tion Paper on Genetic Discrimination,” Matthew Cox, “As Debate Rages, DNA Unused: Guidelines Needed for Database on Despite those concerns, some updated Aug. 18, 1997, www.gene- watch.org/gendisc.html. Criminals,” Newsday, Jan. 18, 1999, p. A8. public health experts and organiza- 26 6 National Research Council, DNA Technol- See Legal Times, May 10, 1999, p. 1. tions are today advocating DNA test- 27 See The New York Times, March 9, 1999, ing of all newborns — a step they say ogy in Forensic Science, (1992). 7 For the early history of human genetics, p. B1. can help in early diagnosis and treat- 28 see Robert Shapiro, The Human Blueprint: See USA Today, May 4, 1999, p. 4A. 29 ment of genetic diseases. Meanwhile, The Race to Unlock the Secrets of Our Ge- See The Washington Post, Jan. 12, 1999, the government of Iceland has ap- netic Script (1991). p. A1. proved a plan to compile a database 8 Harlan Levy, And the Blood Cried Out: A of genetic, medical and genealogical Prosecutor’s Spellbinding Account of the information about the country’s en- Power of DNA (1996). Much of the historical tire population of 270,000. The plan material is drawn from Levy’s account. envisions selling the information to 9 The Narborough murders are recounted biotechnology companies that can in Joseph Wambaugh, The Blooding: The use it to find new clues about the True Story of the Narborough Village Mur-

468 CQ Researcher Bibliography Selected Sources Used

Books

Billings, Paul R. (ed.), DNA on Trial: Genetic Identification and Crimi- nal Justice, Cold Spring Harbor American Academy of Forensic Sciences, 410 N. 21st St., Suite 203, Laboratory Press, 1992. Colorado Springs, Colo. 80901-0669; (719) 636-1100; http://www.aafs.org. The book includes eight essays on a variety of scientific and legal issues, American Civil Liberties Union, 125 Broad St., New York, N.Y. 10004- 2400; (212) 549-2500; www.aclu.org. including DNA data-banking, mostly from a critical perspective. Each es- Council for Responsible Genetics, 5 Upland Road, Suite 3, Cambridge, say includes reference notes. Bill- Mass. 02140; (617) 868-0870; www. gene-watch.org. ings, a geneticist, is now chief medi- cal officer for a system of three veter- National Commission on the Future of DNA Evidence, 810 7th St., N.W., ans hospitals in Texas. Washington, D.C. 20531; (202) 307-5847; www.ojp.usdoj.gov/nij/dna. Levy, Harlan, And the Blood Cried Out: A Prosecutor’s Spellbinding Account of the Power of DNA, Basic Books, 1996. 30, 1989, pp. 353-364. Levy, now a criminal defense attorney in New York, The article gives a good overview of the development wrote this account of the use of DNA evidence in criminal of DNA typing and its early use by police and prosecutors investigations and prosecutions based on nine years as a in the United States. prosecutor in the Manhattan district attorney’s office. The book traces the history of DNA sampling, its first appli- Reports and Studies cation to criminal cases in the 1980s through the contro- versies over the practice in the United States and what he National Research Council, DNA Technology and Fo- depicts as its nearly universal acceptance today. The rensic Science, National Academy Press, 1992. book includes 12 pages of source notes. This first report by the National Research Council endorsed the use of DNA typing as courtroom evidence Shapiro, Robert, The Human Blueprint: The Race to but called for careful case-by-case evaluation and safe- Unlock the Secrets of Our Genetic Script, St. Martin’s guards so strict that some experts initially viewed it — Press, 1991. mistakenly — as urging a moratorium on its use. The Shapiro, a professor of chemistry at New York Univer- report includes chapter notes and a six-page glossary. sity, provides an accessible account of the scientific developments in human genetics, including a chapter on National Research Council, The Evaluation of Foren- DNA identification. The book includes 24 pages of sic DNA Evidence, National Academy Press, 1996. source notes and a three-page bibliography. This report — sometimes called NRC II — endorsed a less restrictive statistical methodology for evaluating Wambaugh, Joseph, The Blooding: The True Story of DNA evidence than that recommended by the previous the Narborough Village Murders, William Morrow, National Academy of Sciences committee. The report 1989. includes a 14-page list of references, a five-page glossary Wambaugh, a former police detective turned author, and a listing of state court cases on the admissibility of gives a popular recounting of the use of DNA typing to DNA evidence. solve the Narborough murders in England in the early 1980s — exonerating a suspect who had falsely con- U.S. Department of Justice, Convicted by Juries, Ex- fessed to the rape-murder of one young girl and then, onerated by Science: Case Studies in the Use of DNA after mass DNA sampling in the village, correctly identi- Evidence to Establish Innocence After Trial, 1996. fying the man who committed that crime and another The report summarizes 28 cases in which DNA evidence similar killing. was used to exonerate defendants who had previously been convicted of crimes — rape or sexual assault and Articles sometimes other offenses. It also includes a discussion of the policy implications of the case studies, commentaries Landers, Robert K., “Solving Crimes With Genetic by experts representing a range of views and a two-page Fingerprinting,” Editorial Research Reports, June glossary.

CQ on the Web: www.cq.com May 28, 1999 469 DNA DATABASES The Next Step Additional information from UMI’s Newspaper & Periodical Abstracts™ database

DNA as Crime-Solving Tool the DNA of a man in prison for a 1997 rape against samples from the 1995 case and came up with a match. Cannizaro, Steve, “Chalmette Man is Arrested in Rapes; DNA Links Him to California Cases,” The New Or- Ethical and Legal Issues leans Times-Picayune, March 2, 1999, p. A1. A sample of blood that ex-criminal Daniel Metzler was Donnelly, Peter, and Richard D. Friedman, “DNA Da- required to give while in custody in California came back tabase Searchers and the Legal Consumption of Sci- to haunt him when St. Bernard sheriff’s deputies, work- entific Evidence,” Michigan Law Review, February ing with California authorities, arrested him in connec- 1999, pp. 931-984. tion with the rapes of four female joggers in a park in DNA evidence has transformed the proof of identity in Mission Viejo, Calif., shortly after his release from prison criminal litigation, but it has also introduced daunting in 1992. problems of statistical analysis into the process. The problem of whether, and how, to present evidence Cole, Caroline Louise, “Ex-Nursing Aide Arraigned; identified through a DNA database search, is analyzed. Review Set for Lawrence Facility; Fired Worker De- nies Rape Charge Resulting from DNA Test,” The Kluger, Jeffrey, “DNA Detectives,” Time, Jan. 11, 1999, Boston Globe, Jan. 14, 1999, p. B3. pp. 62-63. A fired employee was arraigned on rape charges, The use of DNA identification techniques raises several accused of impregnating a helpless and unconscious ethical and civil rights questions. The author discusses patient at the Town Manor Nursing and Rehabilitation the use of genetic identification as used by the FBI and Center, and a state investigator prepared to begin a other law enforcement officials and considers the future detailed evaluation of the home’s procedures and prac- of the technology. tices. Israel Moret, 37, a state-certified nurse’s assistant, pleaded not guilty to counts of rape and abuse of a Expanding DNA Testing patient in a long-term care facility. Moret was arrested while on his regular day shift at the nursing home, after Argetsinger, Amy, and Craig Whitlock, “Md. Seeks DNA testing identified him as the father of the uncon- The DNA Of Violent Criminals; Critics Cite Threat To scious woman’s baby. Privacy Rights,” The Washington Post, March 24, 1999, p. B1. McMurry, Kelly, “Dog DNA Used to Take a Bite Out of Maryland law enforcement officials want to collect the Crime in Seattle,” Trial, February 1999, pp. 104-106. genetic fingerprints of almost every violent felon in the A jury in Seattle recently convicted two men of first- state for a database that could help identify suspects from degree murder and animal cruelty. This was the first case traces of physical evidence found at crime scenes. A bill in which canine DNA was used to obtain a criminal now under consideration by the state legislature would conviction in a homicide case. greatly expand the state’s current database, which now contains the DNA records of a few hundred convicted sex Possley, Maurice, “Prisoner to Go Free as DNA Clears offenders. Him in Beauty Shop Rape,” Chicago Tribune, Feb. 24, 1999, p. 2C1. Pfeiffer, Sacha, “SJC Upholds Taking DNA from Con- After spending more than eight years in prison for victs, Parolees,” The Boston Globe, April 14, 1999, p. B1. crimes he says he did not commit, a man convicted of two In a decision praised by law enforcement officials and sexual assaults was ordered released on bond after DNA harshly criticized by civil libertarians, the state’s highest tests exonerated him in one of the attacks while implicat- court ruled that blood samples may be forcibly taken ing another man whom he closely resembled. from convicted criminals to create a statewide DNA database. The ruling overturned a decision by Superior Robinson, Marilyn, “DNA Helps Find Rape Suspect; Court Judge Isaac Borenstein, who said last summer that Database Points to Man Jailed in Separate Crime,” the state’s 1997 DNA collection law was unconstitutional. The Denver Post, April 3, 1999, p. A1. Authorities have used one of the newest weapons in Tolley, Kim, “Attorney General’s Request for DNA their crime-fighting arsenal — a growing DNA database from Blacks Only Causes Uproar,” Call & Post, Feb. — to find a suspect in the 1995 rape of a 12-year-old girl. 25, 1999, p. A1. Colorado Bureau of Investigation forensic scientists ran A request by the personnel director of the Ohio attorney

470 CQ Researcher general’s office that African-American employees of the Jefferson-Hemings DNA Link department consider participating in a DNA Laboratory Population Database Information survey by providing “DNA Tests Show Jefferson-Hemings Link,” American tissue samples has created an uproar. History, April 1999, p. 6. Recent DNA tests tend to corroborate that the nation’s Willing, Richard, “Reno: Study Broad DNA Testing; third president, Thomas Jefferson, fathered a child with one Commission Would Consider Sampling Everyone Ar- of his slaves, Sally Hemings. rested,” USA Today, March 1, 1999, p. A1. Attorney General Janet Reno has asked a federal com- Cain, Andrew, “Authors Admit Doubts Surround DNA mission to study the legality of taking DNA samples from Study,” Insight on the News, Feb. 22, 1999, pp. 40-41. everyone arrested instead of just the convicted sex The authors of the article in the journal Nature about offenders and violent felons currently permitted by law. Thomas Jefferson and his slave Sally Hemings — who still Such widespread testing would hugely expand government’s believe Jefferson fathered Hemings’ last child — now reach by placing the genetic fingerprints of millions of admit there’s much room for debate. Americans into state crime databases even if they never were convicted of a crime. Cauchon, Dennis, “Group Flags Other Jefferson as Father, Says DNA Test Results Have Been Misinter- Willing, Richard, “With DNA Databases on Fast Track, preted,” USA Today, Jan. 7, 1999, p. A3. Legal Questions Loom,” USA Today, March 1, 1999, p. A group of Thomas Jefferson’s defenders say Jefferson’s A5. younger brother — not the president himself — is the DNA databases designed to clear the innocent and catch man most likely to have fathered a child by the slave Sally the guilty more quickly are moving ahead at the speed of Hemings. At a news conference in Washington, D.C., the technology. Just last October, the FBI activated a national group said the news media and many historians had computer network that lets states match genetic material misinterpreted the meaning of genetic tests released in from crime scenes with the DNA of convicted murderers, November that showed Thomas Jefferson’s DNA was child molesters and rapists. consistent with that of Eston Hemings, born May 21, 1808, to slave Sally Hemings.

Iceland’s DNA Database Wade, Nicholas, “Defenders of Jefferson Renew At- tack on DNA Data Linking Him to Slave Child,” The Lewontin, R. C., “People Are Not Commodities,” The New York Times, Jan. 7, 1999, p. A20. New York Times, Jan. 23, 1999, p. A19. DNA evidence of Thomas Jefferson’s presumed affair The author says that Iceland’s recent parliamentary deci- with his slave Sally Hemings continues to reverberate, sion to create a DNA database controlled by a privately with defenders of Jefferson arguing that others in his owned company further commodifies human bodies. family could have fathered her children.

Lyall, Sarah, “A Country Unveils Its Gene Pool and Debate Testing Newborns’ DNA Flares,” The New York Times, Feb. 16, 1999, p. F1. In December, after a fierce public discussion that raged for Lambert, Bruce, “Giuliani Backs DNA Testing Of New- months, Iceland’s Parliament passed a law giving an Icelan- borns for Identification,” The New York Times, Dec. dic biotechnology concern the right to develop a giant 17, 1998, p. B4. database combining the health records, genealogical back- Escalating his debate with civil liberties advocates, New grounds and DNA profiles of every person in Iceland. The York City Mayor Rudolph W. Giuliani said he had “no concern, Decode Genetics, which is to have exclusive rights problem’’ with the DNA testing and fingerprinting of all to market the database abroad for 12 years, says the newborns, although he did not propose actually gather- information will be used to answer a host of questions ing such records. about the nature and origins of hundreds of diseases. Shepardson, David, “Privacy Furor Hits Blood Tests: Weber, Lara, “DNA Project Raises Few Fears in Ice- Engler Panel Argues to Save Newborn Samples; Oth- land,” Chicago Tribune, Feb. 21, 1999, p. 14. ers Want Them Destroyed,” Detroit News, Jan. 25, For many Americans, the idea of a DNA database raises 1999, p. A1. fears of Big Brother snooping into their medical records. There is a debate in Michigan over whether to keep for But in Iceland, such a project is viewed as an opportunity future use DNA samples taken from newborns to test to cash in. After nine months of debate, Iceland’s Parliament them for rare disorders. The Michigan Commission on approved legislation that allows one company, Decode Genetic Privacy and Progress notes the samples have Genetics, to collect and analyze DNA samples and medical been used to match DNA a few times in cases involving records from Iceland’s strikingly homogenous population. abducted children.

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APRIL 1998 JANUARY 1999 Biology and Behavior Death Penalty Update Liberal Arts Education Obesity and Health Income Inequality Role of Foundations High-Tech Labor Shortage International Monetary Fund

MAY 1998 FEBRUARY 1999 Census 2000 Digital Commerce Child-Care Options Plea Bargaining Alzheimer’s Disease Y2K Dilemma U.S.-Russian Relations Future of the Papacy

JUNE 1998 MARCH 1999 Student Journalism The Politics of Energy Antitrust Policy Truck Safety Environmental Justice Partisan Politics Sleep Deprivation Holocaust Reparations

JULY 1998 APRIL 1999 Encouraging Teen Abstinence School Vouchers Population and the Environment Managing Managed Care Democracy in Asia The Future of Telecommunications Baby Boomers at Midlife Women and Human Rights

472 CQ Researcher