It’s getting harder to be a criminal…at least a career criminal. That’s because 25 states now collect DNA for certain felony arrests, such as violent or sexual crimes. Furthermore, as of July 1, New Mexico joins 12 other states to collect DNA evidence from anyone arrested for a felony as part of their booking process. And if that isn’t enough, 15 states are going even a step further and collecting DNA from those arrested on certain misdemeanors as well. While all states acquire DNA samples for felony convictions, the switch to collecting upon arrest has been gaining momentum and doesn’t seem to be letting up. An increasing number of people who are arrested are having their DNA profile entered into enormous databases accessible by numerous law enforcement agencies across the country. Talk about a deterrent to crossing the line again. Thanks to the technology that has made DNA analysis faster and easier, the swift arm of the law is getting even faster.
Statistically, 70 percent of crime in America is committed by six percent of criminals. Additionally, more than 90 percent of state prisoners are repeat offenders, as stated on the Surviving Parents Coalition website. It makes sense that if it was possible to thwart the most active criminals then it should be done and genetic profiling offers a much more rapid and accurate approach than fingerprinting. Amazingly, it was only eight years ago when Virginia became the first state to acquire DNA from those arrested for sex and violent crimes.
The legislation most responsible for this trend is known as Katie’s Law in honor of Kathyrn Sepich, a New Mexico State University graduate student who was brutally raped and strangled in August 2003. Forensic analysis of skin and blood found underneath her fingernails allowed for a genetic screen to be uploaded into CODIS, the Combined DNA Index System, which is the national database for DNA profiles. Over three years later, the DNA profile was matched to Gabriel Avila, who was convicted for breaking into a home of two college students in 2004. Avila is now serving a 69-year prison term for her murder. Katie’s parents, Dave and Jayann Sepich, became advocates for the law arguing that if Avila had been genetically tested for a felony arrest in November of 2003, he would have been caught much sooner and not allowed to roam free.
The new law has one major drawback and that’s red tape: the cheek swab that is obtained at booking for all felony arrests remains unanalyzed until one of three conditions is met: a felony arrest warrant is filed, a judge or magistrate establishes probable cause or the defendant fails to show up in court or skips bail. The bill was debated with one side saying that analyzing all samples could lead to misconduct by police to acquire DNA by trumping up charges. After all, what better way to get someone into the system than arresting, sampling and releasing them in a day? But, at the same time, by not analyzing samples right away, a defendant who is in the database could slip through the system by posting bail and walking out the door.
Clearly, genetic screening of arrestees adds more fuel to the debate over the right to privacy for those suspected of a crime, raises serious concerns about who has access to potentially incriminating DNA information stored in databases, and further demonstrates the weight society is placing on genetic screens for identification. A communications specialist for the ACLU in New Mexico argued that this and similar laws go against the principle that a person is innocent until proven guilty. Consider political protesters who may be arrested but never actually convicted. Their DNA goes into the database and can serve as an unfortunate deterrent from avoiding situations in which they might accidentally get picked up on a misdemeanor because their DNA information is in the hands of the police. Ultimately, the Supreme Court will have to make a ruling on whether DNA sampling of arrestees is unconstitutional for violating their fourth amendment rights before the debate is settled.
Scientifically, DNA profiling and its use in law enforcement has room for improvement. Scientists in Israel reported in 2009 that DNA evidence could be made up as they fabricated both blood and saliva DNA from someone who was not the donor. Furthermore, they could doctor up a DNA profile in the database to make a match without ever testing a single sample. The lead author on the paper warned that they had demonstrated the possibility of engineering a crime scene through the ability to plant fabricated DNA evidence. Considering how much easier it is to plant DNA than fingerprints, the potential for misconduct is troubling.
Fortunately, for all the privacy issues and potential for abuse, screening of felony arrests has a big bonus feature – true justice. Increased genetic screening has proven suspects were innocent through DNA testing in tens of thousands of cases, according to the Innocence Project. In addition, 272 post-conviction cases have been overturned through exoneration by DNA, allowing innocent people to go free, and 122 true perpetrators were identified through DNA exoneration.
Undoubtedly, an increasing number of states will be collecting DNA for felony and misdemeanor arrests. This is quickly becoming the reality of our modern culture and the more the public understands that, the less inclined many will be to actually commit crimes. While that creates some thorny issues when it comes to privacy, the overall effect is likely to be very positive as repeat offenders are taken off the street faster. We often think about DNA screening being used in medicine to help people identify dispositions toward illness or even underlying genetic abnormalities. But the fact that DNA profiling at booking has the potential to save lives as well builds a strong case for the increasing number of benefits that come from genetic testing.