Big Brother and his science kit: DNA databases for 21st century crime control?

• Author: Tracy, Paul E.
• Position: Statistical Data Included

1. INTRODUCTION

   --Pudd'nhead Wilson(1)

   Mark Twain was speaking about fingerprints, of course, but prophetically, he might just as well have been speaking about DNA.(2) The protagonist in Pudd'nhead Wilson was an attorney who had a passion for collecting fingerprints. One wonders if a modem-day version of Twain's vivid character would have the same affinity for collecting samples of DNA for law enforcement purposes. As law enforcement agencies the world over have been amassing huge collections of fingerprints since the closing days of the nineteenth century,(3) so too have they recently begun to collect, organize, analyze, and store collections of DNA samples for forensic purposes.

   This trend, as was the case with fingerprints, has been hailed as a godsend for crime fighting, but also decried as an evil at the same time. However, as with fingerprints, it looks like DNA testing and associated databases are here to stay. Accordingly, the current proliferation of DNA databases and their likely further expansion raise three significant policy issues and attendant questions. First, how do we utilize this new technology, while protecting against misuse and abuse? The question is really much more complex than this, and it certainly covers a multitude of sub-issues. At the essential core of this issue is the same question which appears in virtually every facet of our daily lives today. Science and technology are progressing at exponential rates, while the ordinary citizen struggles to keep up; so, what happens when technology, and the manifold advances it spawns, transcends society's ability to regulate such technology? Further, in the absence of a serious and well-informed debate about the advisability and demonstrative value of putting into practice whatever advances new technologies may provide, will particular interest groups exert unchallenged influence, if not complete hegemony in a particular area, and successfully lobby for very large expenditures of public financing?

   In order to address the first issue properly, the investigation of a second issue requires careful and immediate attention. Although technology makes certain advances possible, are these advances truly necessary? Moreover, will they produce the alleged benefits and if so, at what cost? This paper will not attempt to solve this dilemma in a macro context. Rather, our interest centers on the forensic application of DNA technology, and in particular, the construction of scientific databases that contain such information. In the past few years, supporters of DNA testing for forensic applications have made remarkable claims about the potential of DNA testing as a crime fighting tool and have touted DNA as the next great breakthrough since fingerprints. It should be noted at the outset that we have no quarrel with DNA testing per se. The scientific community has conclusively demonstrated the reliability and validity of DNA testing and that the "matching" of an evidence sample with that taken from a suspect for purposes of exclusion versus inclusion can be highly successful. Further, although at one time there was considerable debate about the admissibility of DNA evidence, the point is now moot.(4)

   However, our inquiry is guided by a healthy skepticism about the widespread collection of DNA samples and their subsequent storage in databases as a crime control measure. For example, a new program in New York, announced as recently as August 7, 1999, requires (as of December 1, 1999) that any person convicted of certain designated felony offenses will have his/her DNA stored in a database.(5) The program will involve both persons newly convicted (about 25,000 persons per year) and the retroactive testing of persons already in the criminal justice system (approximately 100,000 prison inmates).(6) Estimates of the cost of the program range from $10 million to $20 million.(7)

   Regarding the potential of such programs as a law enforcement tool, Ronald S. Neubauer, the president of the International Association of Chiefs of Police offered the following comments:

   I think it's one of the most important developments in forensic science in law enforcement.... And in the 21st century, I not only see DNA being a tool to solve crimes, but as a way to insure that innocent people are not being convicted of crimes they did not commit.(8) It is precisely this type of unsupported assertion, if not blatant exaggeration, concerning the crime fighting value of DNA, together with the manifold costs of DNA testing and database construction, that frame the scope of our analysis. To put it more simply, will DNA databases provide law enforcement and the subsequent criminal prosecutions with measurable and significant effects on crime? Further, can these effects, once demonstrated and replicated on a wide-scale basis, be produced in a cost-effective manner?

   Assuming that DNA databases are indeed valuable in the fight against crime, and can be administered in a cost-effective fashion, a final remaining issue arises concerning appropriate regulations surrounding DNA database construction, maintenance, and access. As will be shown below, since there are various schemes concerning who should be required by statute to contribute DNA samples, this question indeed poses significant legal and ethical issues which must not be ignored or dismissed amidst the fervor surrounding the alleged benefits of DNA testing.

   This paper is organized as follows: Part II provides a brief introduction to DNA testing and its increasing application in criminal jurisprudence. In this section we devote special attention to federal initiatives that seek to expand the use of DNA (and DNA databases) owing to its reputed evidentiary value. In Part III we provide an analysis of the efficacy of DNA testing and associated databases, from both a "pure" effectiveness basis (i.e., DNA's impact on crime) and a "cost" effectiveness standpoint (i.e., the crime level effect per unit cost of DNA testing and storage). Part IV reviews predictions of what the future may hold for DNA and related databases, and the normative policy concerns regarding current use and likely future expansion. Here our goal is to provide informative commentary on the fundamental question of concern: are we better off living in a world where our most basic and singularly unique characteristics are on file, serving as a constant shadow over our daily lives? Part V provides a discussion of how DNA databases are being designed, and a survey of the existing law in the United States as to their present structure. Part VI offers a summary and the conclusions of the inquiry into the ultimate value of DNA databases.

2. THE EMERGENCE OF DNA TYPING

   1. DNA IS DISCOVERED

      The DNA story begins with two gentlemen named Watson and Crick who came upon a remarkable discovery in 1953. They unraveled the mystery of DNA for the first time, obtaining a Nobel Prize for their efforts.(9) Like many scientific discoveries, it would take years to realize the full magnitude and potential of this pioneering work. It was not until the early 1980s that Dr. Alec Jeffreys at the University of Leicester in England pioneered the use of DNA in the law enforcement arena.(10) The Federal Bureau of Investigation (FBI) quickly followed suit in 1988.(11)

      DNA is the chemical deoxyribonucleic acid, which carries the genetic code of each human's body--the genetic blueprint we inherit from our parents. DNA, while not actually a part of saliva, urine, perspiration, or tears, is found in one place, and only one place--the nucleus of cells.(12) Because these cells are found in all bodily fluids, tissue, and hair, DNA is an omnipresent residue that trails us wherever we go. These physical properties of DNA have made it an important tool in fighting crime. Presently, there are three principal methods by which DNA testing is usually accomplished: (1) Restriction Fragment Length Polymorphism (RFLP); (2) Polymerase Chain Reaction (PCR); and (3) Short Tandem Repeats (STRs).(13) Depending upon the quantity and quality (i.e., molecular weight and possible degradation) of the forensic sample available, the time frame available for testing, and other factors, one or more of these methods will generally produce valid results for making a "match" between an evidence sample and a suspect sample for purposes of excluding or failing to exclude the suspect as the perpetrator.

   2. FEDERAL DNA INITIATIVES

      As might be expected, the United States Department of Justice (DOJ) has taken the lead in developing DNA applications for use by law enforcement agencies and subsequent criminal case disposition. The DOJ has utilized both the FBI and the research and funding capabilities of the National Institute of Justice (NIJ) to develop a far reaching set of programs for DNA applications. The FBI, as noted above, began its involvement with DNA in 1988. Since then, the FBI has continued to play a leading role and has developed a number of DNA initiatives.

      First, the FBI maintains two DNA analysis units. DNA Analysis Unit I performs laboratory testing on evidence samples taken from violent crime scenes. Body fluids and fluid stains are examined serologically and then the DNA is characterized through RFLP and/or PCR testing. In 1996, the FBI opened another unit, DNA Analysis Unit II, which uses mitochondrial DNA testing on evidence samples when the sample is degraded or contains an insufficient amount of DNA for either RFLP or PCR testing.(14) Second, the FBI operates the Combined DNA Index System (CODIS) which began as a pilot project in 1990. CODIS is a software-based system which uses two indices to facilitate violent crime investigations.(15) Third, the DNA Identification Act of 1994 authorized the FBI to establish further DNA indices.(16) The Convicted Offender Index contains DNA profiles of felons convicted of violent crimes and sex offenses, while the Forensic Index contains DNA profiles from crime scenes.(17) The...