IN THESE TIMES
DECEMBER 26. 1999

GENE COPS: The Police Want Your DNA

By PAUL DERIENZO AND JOAN MOOSSY

There was an interesting array of shiny gadgets on display at the American Society of Crime Lab Directors' annual conference here in September: a microscope for comparing bullets, glow-in-the-dark crime scene chalk, a special light that illuminates nearly invisible footprints. But the real excitement concerned the latest DNA fingerprinting technology. The ability, in theory at least, to identify someone from a sample as small as the saliva on a coffee cup has politicians and law enforcement officials drooling.

DNA technology is heralded by law enforcement as a way to solve cases thought to be unsolvable. At the same time, the increasing use of DNA evidence is raising important legal and ethical questions from civil libertarians. Will the expansion of DNA testing by law enforcement cast a shadow over our basic constitutional freedoms? Or is DNA the vehicle for ensuring that only the guilty are punished?

DNA, or deoxyribonucleic acid, is the basic building block that makes up the genetic material determining each person's heredity and individual identity. DNA can be used like a fingerprint to identify individuals because each person's DNA is unique (except for identical twins and bone marrow transplant recipients). The FBI and each of the 50 states are building an interlinked computerized database that already has a backlog of 1 million blood and tissue samples taken from crime scenes and convicted offenders. The FBI says that nearly 600 cases have been solved using its DNA database, including the identification of a serial rapist in Washington who also turned out to be a serial rapist in Florida.

Claiming that DNA fingerprinting allows them to link crime scenes to suspects throughout the United States, police officials say they see a time when no criminal suspect will be unidentified. Attorney General Janet Reno is calling for the DNA fingerprinting of everyone arrested in the United States, potentially as many as 15 million people a year. "We should be collecting it from everybody," agrees New York City Police Commissioner Howard Safir. "The only ones who have anything to worry about from DNA testing are criminals."

The model for the police in the United States is Great Britain, where the use of DNA-based identification has gone much further. British police already have an extensive DNA database that has been functioning since 1995, with the stated goal of including the entire population. The police in Britain have asked, and even required thousands of citizens in certain buildings or towns to give samples in high-profile cases.

Politicians wanting to took tough on crime have been taking the lead in promoting the use of DNA evidence. New York has established one of the nation's most ambitious DNA identification programs. Starting in December, half the defendants convicted in the state each year-about 25,000 individuals, on average--will have to provide a DNA sample. New York is also one of the few states to require DNA samples from everyone already in prison, on parole or on probation for certain crimes, about 100,000 people. But Safir isn't satisfied. Although the plan "is a good start," he says, "it doesn't go far enough."

Until recently, New York, like most states, limited DNA collection to people convicted of sex crimes and a few other violent offenses. New York now joins eight states (the others are Alabama, Maine, Massachusetts, New Mexico, Tennessee, Vermont, Virginia and Wyoming) that track a wider range of felons. The crimes that will be listed in the databanks now include drug dealing, robbery, burglary, grand larceny, arson, kidnapping, attempted burglary and the most serious categories of drug possession, as well as murder, manslaughter, assault and sex crimes. In July, the New Mexico state legislature went even further, voting to require DNA samples from all convicted felons, including for those found guilty of nonviolent offenses like passing bad checks.

Milwaukee Assistant District Attorney Norm Gahn, a tireless advocate of DNA fingerprinting, has pushed the envelope by filing rape and kidnapping charges against a suspect known only as "John Doe, unknown mate with matching deoxyribonucleic acid profile." Gahn wanted to beat the statute of limitations, which was set to run out on the six-year-old crime. "We know that one person raped these three women," he says. "We will catch him."

But criminals are evidently on the cutting edge of the new technology, too. There are stories of deliberate contamination of the crime scene and convicts exchanging saliva to contaminate samples. Gahn tells the story of an incarcerated rapist who sent a semen sample to a friend and convinced her to apply it to her body and to report a rape in an effort to discredit his own DNA identification.

In 1998, the Justice Department created the National Commission on the Future of DNA Evidence to "encourage the most effective use of DNA evidence." At the commission's September meeting in Washington, Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson, chairwoman of the commission, called for recommendations on how to best promote and integrate DNA fingerprinting into the fabric of daily life in the United States, Congress already is considering legislation to expand DNA fingerprinting at the national level. A Senate bill sponsored by Utah Republican Orrin Hatch would mandate that all individuals convicted of "crimes of violence" or violent acts of "juvenile delinquency" have their DNA profile entered into the FBI databank. The bill is expected to reach President Clinton's desk by the end of the year.

Not everyone is so excited about the promise of DNA. The American Civil Liberties Union objects to any expansion in the list of crimes being entered into DNA databases. "It is a mistake to equate DNA samples with fingerprints," says Norman Siegel, executive director of the New York Civil Liberties Union. "Fingerprints are representations of the physical attributes of the tips of our fingers; they are used only for identification purposes. DNA is that plus much more."

DNA not only provides information about identity, but also about 4,000 different diseases and genetic conditions. According to ACLU Executive Director Ira Glasser, more is at stake than personal privacy. "The history of information in this country is that once the government has it, it is usually misused," he says. "Census information that took down ethnic background was supposed to be used just for counting, then it ended up being used to round up Japanese-Americans during World War Il."

The possibility for racial profiling is one of the issues that some officials worry could turn the public against DNA fingerprinting. Critics fear that despite laws limiting the uses of DNA databanks, there may be pressure from some researchers to use the data for studies of genetic susceptibility to violent or criminal behavior. Frankfort, Illinois Police Chief Darrell Sanders puts it bluntly: "The potential for what you can find out about people is what scares the hell out of everybody."

Others fear that law enforcement could gain access to DNA samples through existing banks of tissue held by medical institutions. The Centers for Disease Control has been collecting tissue samples since 1962, and paternity tests use DNA for identification in custody and child support cases. New York Mayor Rudy Giuliani has proposed that DNA samples be taken from every newborn in the city to aid in identification. "I think we'll reach universal DNA databanking for criminal purposes through the backdoor of public health," predicts Dr. Phillip Reilly, president of the Shriver Center for Mental Retardation at Harvard University.

In 1999, drops of blood will have been routinely collected and saved from almost every newborn. The blood is analyzed for genetic diseases such as cystic fibrosis, muscular dystrophy and sickle-cell anemia. But the samples can be kept for just a few weeks or up to 25 years. "There simply are no laws right now in most cases which control who can collect biometric information from us," says ACLU Associate Director Barry Steinhardt, 11 whether they can transfer it to a third party, what they can do with it, whether they can take it without our consent. All those things are open now."

0f course, not all uses of DNA favor prosecutors and police. Barry Scheck, perhaps best known as a member of O.J. Simpson's defense team, runs the Innocence Project at Cardozo Law School in New York, which has been using DNA evidence to free wrongly convicted prisoners. Nationwide, at least 48 former prisoners, including 12 who were on Death Row, have been exonerated by DNA. Scheck says that this is just "the tip of the iceberg."

Surprisingly, the Justice Department agrees. Based on the record of DNA testing in freeing wrongfully convicted prisoners, the National Commission on the Future of DNA Evidence has recommended that the criminal appeals process be changed, permitting prisoners to use DNA evidence to file an appeal even after the deadline has passed. Scheck calls the proposal a "home run" for civil liberties. Two states, New York and Illinois, already allow late appeals based on DNA evidence. Both pay for the tests if the convict is indigent and there's a reasonable basis to believe the test may prove innocence. There are no court decisions mandating that the state pay for DNA testing, however.

Fears that the floodgates of prisoners contesting their convictions would be opened have led some judges and prosecutors to reject post-conviction DNA testing, which may become a significant legal issue in future cases. Requests by prisoners for DNA tests are already growing. But as the use of DNA fingerprinting becomes universal, say its Proponents, the need for post-conviction testing will diminish anyway.

Despite the claims that DNA testing will be a panacea for law enforcement, DNA based identification is no more effective than the investigators, scientists and labs that handle the samples. In one test, the California Association of Crime Laboratories found that DNA labs like Cellmark and Cetus mistakenly matched test samples that weren't identical. There also have been questions about govermment DNA tabs. The FBI's Crime Lab was the subject of embarrassing revelations by a whistleblower who charged that the lab had been faking results, or "drylabbing."

U.S. Attorney Barry Rand Elden headed an 18-month investigation of the FBI Crime Lab. In 1997, Elden released a scathing report that accused the lab of botched and possibly doctored tests in work on both the Oklahoma City and World Trade Center bombing cases. Elden's report stopped short of saying the lab was framing suspects, but said employees were cutting comers on proper procedures in ways that tended to favor the prosecution. DNA identification often requires a subjective interpretation and determining a match between various samples can be ambiguous, opening up the possibility for bias. The FBI responded to the criticisms by transferring some employees to new jobs and breaking ground this year on new lab facilities in Quantico, Virginia.

Much of the policy discussion at the September meeting centered around the looming issue of how long law enforcement should retain DNA profiles in their databanks. Chicago Police Superintendent Terry 0. Hillard blasted FBI proposals that law enforcement agencies hold DNA information indefinitely. Hillard told commissioners that "being a law enforcement officer for 31 years, I really just don't trust the system that much." Harvard's Phillip Reilly adds: "We run the risk of tripping up on ourselves and failing our charge if we don't adequately address the issue of trust and say we believe in law enforcement's ability to be the custodian of these samples for a long period of time and to treat them with the highest integrity."

California's DNA databank has archived bloodstains and DNA samples from more than 100,000 people convicted of violent and sexual offenses. The head of the state's Bureau of Forensic Services, Jan Bashinski, defends her state's privacy guarantees. She says that California law requires the databank to "remove any evidence samples we test once the case has been solved and it has been determined that the sample didn't have anything to do with the case." Bashinski adds that "if we have a piece of evidence that turns out to be irrelevant, that profile cannot go into the databank."

Advances in technology may soon make much of today's debate over DNA obsolete. The San Diego-based company Nanogen says that within five years credit-card-sized devices with computer chips will be able to analyze DNA samples at a crime scene. With such technology, police officers would be called on to make decisions now made in labs by trained scientists. "Most of this sounds like gee-whiz scientific stuff right now, but my conviction, and a very strong one, is that we've always been surprised with new developments," says James Crow, a professor of genetics at the University of Wisconsin. "We say that it's going to happen tomorrow, and it turns out to happen today."

Paul DeRienzo and Joan Moossy are co-hosts of Let 'em Talk, a weekly radio show on WBAI-FM in New York. Research for this article was supported by a grant from the Stewart Mott Charitable Trust.

GENETIC DISCRIMINATION

The use of DNA testing by insurance companies and employers may be the next civil rights battleground, The nonprofit advocacy group Council for Responsible Genetics has documented hundreds of cases in which healthy people were denied insurance or a job based on genetic predictions. According to the American Management Association, hundreds of companies already use genetic testing for employment purposes. As the cost of DNA testing goes down, the numbers of businesses testing their employees is expected to skyrocket. "Discrimination will be rampant,' says ACLU spokesman Lewis Maltby.

The AMA reports that more than 100 companies test for susceptibility to workplace toxins, Dozens of those companies don't inform their employees about why they're being tested. Lawrence Berkeley National Laboratory is being sued by workers who claim their civil rights were violated when 5,000 employees were secretly tested for cell gene, syphilis and even pregnancy.

The Equal Employment Opportunity Commission considers discrimination because of genetic traits to be illegal under federal disability law, but the courts have yet to rule on that stance. At least 31 states have enacted laws against genetic discrimination. But the legislation varies with some banning testing for a genetic trait and others banning any employee testing. The only federal law on the subject is the Health Insurance Portability and Accountability Act, which limits, the rights of group health insurers to deny coverage for pre-existing and genetic conditions, Self-employed workers and the unemployed aren't covered by the act.

Martha Volner, policy director for the Alliance of Genetic Support Groups, says, "Genetic discrimination is the civil rights issue of the 21st century "

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