PAUL G. CASSELL Ronald N. Boyce Presidential Professor of Criminal Law Telephone: 801-585-5202 cassellp@law.utah.edu

January 12, 2014

Representative Steve Eliason Utah House of Representatives 350 North State, Suite 350 P.O. Box 145030 Salt Lake City, Utah 84114 Via e-mail: [email protected]

Re: DNA Collection from Criminal Arrestees

Dear Representative Eliason,

I don’t believe that we have ever met before, but I read in the papers about your proposed bill to collect DNA samples from those who have been arrested for serious criminal offenses. As someone who has had extensive experience working with crime victims and the criminal justice system, I wanted to send you this letter expressing my strong support for your important effort, which will help to take sex offenders and other dangerous criminals off the streets in Utah.

A bit of background: I am currently the Ronald N. Boyce Presidential Professor of Criminal Law the S.J. Quinney College of Law at the University of Utah. I have taught criminal law and criminal procedure at the University of Utah for more than 20 years. I also served as a U.S. District Court Judge in the District of Utah from 2002 to 2007, and have previously served as an Associate Deputy Attorney General in the U.S. Department of Justice as well as an Assistant United States Attorney. I started my legal career as a law clerk to then-Judge Antonin Scalia on the U.S. Court of Appeals for the D.C. Circuit and Chief Justice Warren E. Burger on the U.S. Supreme Court.

Currently, when I am not teaching law school classes, I spend much of time working pro bono to assure the rights of crime victims. Based on my extensive work with victims of crime, I know that nothing is more important to those victims than that those who have harmed them be apprehended and brought to justice. Currently at least 27 states and the federal government take DNA samples from arrestees in some circumstances. Utah should join them.

Several key points support legislation like the one that you are supporting:

(1). DNA Sampling is a routine identification procedure like fingerprinting.

Taking a DNA sample upon arrest is just like any other routine law enforcement identification procedure at arrest, such as fingerprinting and photographing. No one disputes that law enforcement agencies should be entitled to follow such identification procedures. DNA sampling is simply the 21st Century equivalent of this standard procedure.

The process of DNA “sampling” needs to be distinguished from DNA “profiling,” which are easily confused. With a DNA sample, only a very small portion of the genetic information is retained and analyzed. This analysis is typically limited to only thirteen locations (“loci”), which allow for unique identification. These 13 loci are not genes, instead they are alleles that are simply non-coding, and non-regulatory DNA sequences. These sequences reveal identification information only, which is the same type of information gleaned from the pattern of blood vessels in a person’s retina or the whorls and ridges in a fingerprint. Thus, DNA sampling provides no information about a person’s susceptibility to disease, bodily structure, or mental functioning.1 Additionally, the purely identifying features of DNA sampling are far from the truly personal information that can be revealed in, for example, a urine or blood test

It many surprise some to know DNA sampling has been in place for quite some time. By the year 2000, every single state had begun collecting DNA from citizens convicted of certain offenses.2 Also, taking a DNA sample is quick, painless, and minimally invasive process. The removal of cells from arrestees for DNA sampling does not require a physician, or even a technician. This is because the required DNA can be extracted via a “buccal swab” or a “skin scraping.” Despite its title, “skin scraping” only involves removing epidermal cells with a sticky pad. Similarly, a “buccal swab,” the most common form of DNA collection, only requires the inside of a cheek to be briefly and painlessly brushed with cotton. These simple procedures are as intrusive, if not less so, than the fingerprinting and photography process that every arrested person is subject to today.3

Thus, because DNA is obtained in a noninvasive manner and provides information related only to identification, it is indistinguishable from other routine arrest procedures such as fingerprinting. Just as Utah’s law enforcement agencies fingerprint everyone they arrest for a serious crime, they should take a DNA sample from everyone they arrest for a serious crime.

(2) The 4th Amendment permits DNA sampling.

As I am sure you are aware, the United States Supreme Court recently determined that using a buccal swab to obtain a defendant’s DNA sample after arrest for a serious offense was a reasonable search under the Fourth Amendment.4 The Supreme Court’s framework for making that decision follow well-established precedent. In that case, the Court first found that a buccal swab, even though it is not very invasive, constitutes a “search” covered by the Fourth Amendment. The Fourth Amendment, of course, allows law enforcement searches provided that they are “reasonable.” Some searches are reasonable because they are made pursuant to a warrant. Many other searches, however, are reasonable without a warrant because of the strong basis for the search. In the case of a DNA swab from an arrested person in valid police custody, the police have “probable cause” to support the arrest. Moreover, like fingerprinting, taking a DNA swab does not interfere with a legitimate expectation of privacy. In other words, such a swab is “reasonable” under the Fourth Amending, balancing the government’s strong interest against the minimal to nonexistent intrusion on an arrested person’s privacy.

1 D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol'y 455, 461-62 (2001) 2 Id. at 456 (2001) 3 Id. at 482 (2001) 4 Maryland v. King, 133 S. Ct. 1958 (2013)

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The Court gave “great weight” to the government’s interest in identifying arrested persons, and recognized DNA’s immense potential to serve that interest. The Court went on to describe DNA sampling as part of the routine administrative procedures that occur at police station when a person is brought into custody, and acknowledged that no private genetic traits will be uncovered. Accordingly, there can be no doubt that legislation bringing DNA sampling to Utah for arrests is constitutional.

(3) DNA sampling critical to apprehending dangerous criminals.

As you well know, there is a reason that more than half the states, as well as the federal government, take DNA samples from arrestees.5 A DNA database allows police to search individual state databases or the national database to learn whether a known offender might be the source of the DNA left at any given crime-scene. This in turn lets police solve crimes even without physical evidence or eyewitness testimony. Indeed, police can connect an individual to an exact crime “from as little as the saliva on a cigarette butt, skin cells on a steering wheel or pet hairs on clothing.”6 Therefore, DNA sampling upon arrest will most certainly lead to the apprehension of dangerous criminals who would otherwise escape justice. Equally important, DNA sample can help exoneration those who might wrongly fall under suspicion of committing a crime.7

The words of Scott Berkowitz, president and founder of the Rape, Abuse and Incest National Network, crystallize the crucial need for a DNA database in rape investigations. Calling DNA collection ‘‘a detective’s most valuable tool in solving rape cases,’’ he reminds the world that ‘‘[o]ut of every 100 rapes in this country, only three rapists will spend a day behind bars. To make matters worse, rapists tend to be serial criminals, so every one left on the streets is likely to commit still more attacks.”8 These statistics track the facts in Utah. A recent audit of 270 rape cases filed in Salt Lake County from 2003 to 2011, found a mere 6 percent were ever prosecuted.9 DNA sampling upon arrest is vital to the apprehension of rapists, and the prevention of future attacks. And can also help to save law enforcement agencies considerable time and money by more quickly solving serious crimes.

For example, one day in July of 1991, Laura M. Berry began walking to the elementary school in which she worked. A man suddenly clutched her throat from behind, and led her into a

5 See http://www.bostonglobe.com/news/nation/2013/06/03/supreme-court-rules-police-can-take-dna-samples-from- arrestees/g4ZnVgNF7Y8LJgraj4NuTM/story.html. 6 Ashley Eiler, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L. Rev. 1201, 1204 (2011) 7 See, e.g., Carey Goldberg, DNA Databanks Giving Police a Powerful Weapon, and Critics, N.Y. Times, Feb. 19, 1998, at A1 (describing how quickly the newly enhanced CODIS database was able to link a convicted sex offender in Illinois to a 1989 rape and attempted murder in Wisconsin); Colin Moynihan, DNA Evidence Leads to Arrest in a 1993 Rape, N.Y. Times, Sept. 21, 2010, at A28 (detailing the use of CODIS to link a man convicted on drug charges in 2010 to a rape committed in 1993); see also D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol'y 455, 498 (2001) 8 See http://www.bostonglobe.com/news/nation/2013/06/03/supreme-court-rules-police-can-take-dna-samples-from- arrestees/g4ZnVgNF7Y8LJgraj4NuTM/story.html 9 See http://www.sltrib.com/sltrib/news/57323282-78/cases-rape-victims-police.html.csp.

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wooded area where he raped, sodomized, and robbed her.10 After the savage attack, a doctor collected specimens from Laura’s body and clothing as evidence. Unfortunately, police were unable to gain any ground in her case for over a decade. Finally, in 2003 Angel M. Anderson was arrested on unrelated charges of rape and sodomy. Police obtained a DNA sample from him, which matched the DNA from Laura’s crime scene twelve years earlier. Obviously, had the DNA not been collected upon the arrest of Mr. Anderson, Laura would still be wondering if her attacker would ever be found. Moreover, Mr. Anderson’s future victims have DNA sampling upon arrest to thank for their safety.

Another example is Katie Sepich, who was a 22-year-old graduate student at New Mexico State University. The Friday before she was killed, Katie spent the day with her roommate shopping at a local mall because they were about to be bridesmaids in a friend’s wedding.11 Despite these happy plans, everything changed on the night of August 31, 2003. On that night, Katie was brutally raped, sodomized, robbed, strangled, set on fire, and abandoned at a dump.12 Her case went unresolved until December of 2006 when the New Mexico DNA database matched Gabriel Avilla to the crime. Arguably, the saddest part of this case is the fact that Mr. Avilla could have been caught a full three years earlier. In addition to his convictions for several crimes, Mr. Avilla was arrested on felony charges in November of 2003, just a few months after Katie’s murder. If at that time New Mexico had required a DNA sample from Mr. Avilla’s felony arrest, the case may well have been solved much sooner, and prevented Mr. Avilla from victimizing others. New Mexico has since passed legislation allowing DNA sampling from arrestees.

I hope that Utah will join New Mexico and a majority of other states around the country in bringing this valuable tool to law enforcement. Like fingerprinting of arrestees, DNA sampling helps to identify dangerous criminals – and only identifies dangerous criminals. In interferes with no legitimate expectations of privacy. Utah should move quickly to make sure that rapists and other dangerous offenders will not be able to escape justice simply because Utah has not authorized this valuable procedure.

Sincerely,

Paul G. Cassell Ronald N. Boyce Presidential Professor of Criminal Law

10 Anderson v. Com., 48 Va. App. 704, 708, 634 S.E.2d 372, 374 (2006) aff'd, 274 Va. 469, 650 S.E.2d 702 (2007) 11 See http://murderpedia.org/male.A/a/avila-gabriel.htm 12 Gabriel-Avila, Statement of facts in support of criminal complaint. Available at http://murderpedia.org/male.A/images/avila-gabriel/gabriel-avila.pdf

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