Wednesday, April 04, 2007

The Risks, Benefit & Costs Of DNA

Recent issues regarding DNA have been of great importance. One of those issues that has caused great concern is the desire of law enforcement agencies--from local, county, state and federal levels of government--to amass a huge database of DNA for use in solving crimes.

At first this sounds like a no-brainer. Using a DNA database to catch criminals sounds just like using fingerprints. The current process of using DNA requires some reason to request a suspects DNA. However, there have been encroachments on that process in many states that have passed a DNA collection process law. Under some such laws, anyone arrested is required to submit a DNA sample, but most laws require a conviction. This, too, sounds like a no-brainer, except when we realize that there are a number of DNA processing errors, including lab misconduct and errors. But anyone aware of the DNA fiascoes involved in the O.J. Simpson case, regardless of whether they believe the outcome of that case was correct or not, realizes that DNA is not an absolute science.

When the Human Genome Project was underway there was an international conference on the ethical consequences of such a powerfully compelling science. I was fortunate to be asked to contribute via online participation in this project. I raised concerns about privacy, the extension of use under the law enforcement umbrella, and the circumvention of human rights/civil liberties. While part of raising those issues is derived from being an American and believing in a system of justice where there is a presumption of innocence, certain specific rights against self-incrimination, and an incumbent requirement that the prosecution (aka government) must prove its case beyond a reasonable doubt, another part of raising those concerns was the human error factor.

While using the Human Genome database, or any other DNA-based database, for the purposes of tracing genealogy, providing medical baselines and gene information, as exculpatory evidence, or in any other voluntary process where the DNA donor is giving permission is certainly useful, the use of such DNA databases by the government or industry (especially the insurance, security, biometrics industries) is wrought with peril. The voluntary involvement and participation in a DNA data project is useful and can be used for productive and positive purposes. But as usual, our laws, including the rules of evidence propagated by the US Supreme Court and the various state supreme courts, have not kept pace with the scientific developments--including the concomitant problems of human and scientific error--in our society. Given that we are now realizing such problems with fingerprinting, dental and bite radius evidence in an abundance of criminal cases.

Given these problems, and potential moral/legal issues, it does not make sense to bring DNA to the forefront of law enforcement techniques in a manner inconsistent with the provisions of the US Constitution, the various state constitutions, and the Universal Declaration of Human Rights. This is especially true when the US Supreme Court is currently stacked with ultra-conservatives that seek to shape the Constitution in their own vision and world view. The evidence of the same is offered in the refusal to hear cases concerning habeas corpus from victims of improper imprisonment and maltreatment at Camp Delta in Guantanamo Bay, Cuba), even though the Court left room for future hearing of these issues if the current process underway in lesser courts fail to resolve these matters.

But since the laws and rules of evidence are not quite up to date, the use of DNA submitted in voluntary processes might also be used as evidence without a warrant specific to the individual, as is generally required by current legal doctrine and precedent, and specifically by the Fourth and Fifth Amendments, but is being circumvented by various secretive procedures and abuse of powers under the umbrella of homeland security, national security, the war on drugs, the war on terror, or misconduct by government officials. Given the nature of the USA Patriot Act, various executive orders effecting secret, warrantless surveillance programs, and the increasing reports of surreptitious employment of surveillance squads by law enforcement agencies (i.e. NYPD surveillance and profiling of civil protest and advocacy groups during the NYC Republican National Convention), it seems prudent to encourage state legislatures and congress to pass specific legislation that protects DNA privacy and ownership.

The need for specific laws is even more clear when we consider recent efforts by law enforcement to use the existing DNA databases to search for family members when a non-specific hit is found, but when that hit has several corresponding alleals that might--and the emphasis is on MIGHT--point to a family member as the perpetrator of a crime.

Should DNA offered in a voluntary process be used as a tool to seek out other possible suspects when there is no specific evidence pointing to those people? Many of us will snap to judgment on this issue as a matter of convenience and with the conviction of heart that innocent people have nothing to fear. But I urge caution when taking this approach of convenience because, as has been proven, our governments have an inherent trend toward going overboard, even to the level of abuse of process, fabrication of evidence, and prosecution for the purpose of conviction over justice. The number of wrongly convicted persons is growing, but there is still a great deal of resistance toward re-opening cases where there is alleged injustice, wrongful prosecution, errors in the collection or processing of evidence, or a failure to consider other suspects.

There is also a lot of political and professional pressure for prosecutors to achieve high rates of conviction rather than consider matters of justice, fairness and due process. Under such pressure there has been a historical trend by law enforcement and prosecution to rush to judgment. The number of wrongful convictions is on the rise, and DNA evidence has been useful in proving the innocence of those wrongfully convicted. But DNA is fallible and a lot of unanswered issues have arisen. The former GOP-controlled congress took the easy route, fell prey to matters of convenience, and passed a law that allows wide-spread collection of DNA, even from persons merely accused of crimes... many of whom are then released as either being innocent or not having enough evidence to prosecute.

Given that we have a inherent presumption of innocence under our system of juris prudence, this collection process violates that presumption and our Constitution. Of course, there will be numerous legal challenges to using DNA in this manner, especially for those cases where DNA is used in broader ways than the Constitution allows. Should even one federal court case find that the collection of DNA in this manner, or the wide-spread use of DNA databases to seek out new suspects without probable cause be found to be invalid, there will be an avalanche of cases brought back before the courts for consideration of overturning the original verdicts and dismissing the case. Should that happen, then there will be millions of dollars wasted in the original prosecutions and millions more in the settlement of wrongful conviction suits.

It would be more prudent of us to limit the scope of using DNA, DNA databases, and the manner in which DNA is collected until we have some clear process, procedures and protections in place. The current hodge-podge methodology, problems with the science and labs, as well as the patchwork quilt of laws from state-to-state, are markers for a path of wrong-doing on the part of law enforcement, prosecutors and injustice in the courts.


States Stalled on Probing Lab Problems
Tackling critical problems in the nation's justice system, Minnesota, Texas and Virginia have each founded powerful oversight boards in the last two years that can investigate misconduct in crime labs.

But not one of the new boards has yet reopened a case _ either because they have refused to do so or because they haven't been funded.

Those pressing for improvements in forensic work, a foundation of criminal investigations and prosecutions, see the states' unwillingness to act as symbolic of the justice system's overall refusal to dig into its own failings. In their view, it's also an outright failure to follow a 2004 federal law requiring some kind of investigative entity.

"The country has to have trust that we're convicting the guilty and not the innocent," said Texas state Sen. Juan Hinojosa, a Democrat whose bill to create the Texas Forensic Science Commission became law in 2005.

The flaws in his state and elsewhere are "the tip of the iceberg," Hinojosa said. "Prosecutors are supposed to do justice. Instead, they just want notches on their belt. It permeates the whole criminal justice system."

In the past two years, allegations of misconduct have arisen in death penalty cases in Texas and Virginia, including one in which a man was executed.

The DNA Age: Stalking Strangers’ DNA to Fill in the Family Tree
They swab the cheeks of strangers and pluck hairs from corpses. They travel hundreds of miles to entice their suspects with an old photograph, or sometimes a free drink. Cooperation is preferred, but not necessarily required to achieve their ends.

If the amateur genealogists of the DNA era bear a certain resemblance to members of a “CSI” team, they make no apologies. Prompted by the advent of inexpensive genetic testing, they are tracing their family trees with a vengeance heretofore unknown.

“People who realize the potential of DNA,” said Katherine Borges, a co-founder of the International Society of Genetic Genealogy, “will go to great lengths to get it.”

Unlike paper records, which can be hard to come by and harder to verify, a genetic test can quickly and definitively tell if someone is a relative. But not all potential kin are easily parted from their DNA. Some worry about revealing family secrets. Some fear their sample could be used to pry into other areas of their lives. Some just do not want to be bothered.

Those cases inspire tactics that are turning the once-staid pursuit of genealogy, perhaps second only to gardening among American hobbies, into an extreme sport.

Supreme Court Denies Guantánamo Appeal
The Supreme Court on Monday declined to hear urgent appeals from two groups of detainees at Guantánamo Bay. The 45 men sought to challenge the constitutionality of a new law stripping federal judges of the authority to hear challenges to the open-ended confinement of foreign citizens held at the American naval base in Cuba and designated as enemy combatants.

The court’s action leaves standing a ruling six weeks ago by the federal appeals court here that upheld the jurisdiction-stripping provision of the Military Commissions Act of 2006. The justices’ refusal to hear the case at this point, before any of the detainees have availed themselves of alternative appeal procedures that their lawyers argue are unconstitutionally truncated, does not foreclose eventual consideration by the court after those appeals have run their course.

The men have all been held at Guantánamo Bay for more than five years, and none has been charged with a crime. They filed petitions for habeas corpus, challenging their continued confinement, before Congress ordered in the 2006 law that all such petitions must be dismissed and no new ones could be accepted for filing.

President's DNA Initiative: Advancing Justice Through DNA
Government information on using (and strong advocacy for using) DNA in all manner of law enforcement.

ACLU Summary of HR 3214 (The "Advancing Justice Through DNA Technology Act of 2003") and the Tolling of Statutes of Limitations
The tolling of statutes of limitations, in combination with an expanding federal DNA database, will encourage an increase in "cold hit" cases. Suspects will be identified by "matching" DNA profiles of biological evidence with one of thousands of DNA profiles in an increasingly inclusive database. Such a "match" might occur as many as 20, 30, or 40 years after a crime has been committed. In such cases, even a very small potential for error may create a significant risk of false incrimination, since the other evidence against the suspect is weak or nonexistent. Furthermore, defendants in these cases will be deprived of their right to challenge the validity of DNA testing when biological evidence sampled many years prior has since degraded or has not been retained, and law enforcers and lab technicians initially involved in the collection and handling of the evidence have long since left their positions.

ACLU Warns of Privacy Abuses in Government Plan to Expand DNA Databases
The American Civil Liberties Union believes that any proposal to create wholesale DNA data banks of suspects presents a frightening potential for a 'brave new world' in which genetic information is routinely collected and used in ways that will likely result in abuse and discrimination.

Attorney General Janet Reno has asked National Commission on the Future of DNA Evidence to study the legality of taking DNA samples from everyone arrested instead of just the convicted sex offenders and violent felons currently permitted by law. I welcome the opportunity to testify before the Commission today about the civil liberties issues such a proposal raises.

While the ACLU does not oppose any specific type of technology, we are deeply concerned that every expansion of the data banks and every new use for the data opens the door to more and more privacy abuses.

ACLU Challenges California Law Permitting Government Seizure of DNA Samples from Innocent People (12/7/2004)
The California affiliates of the American Civil Liberties Union today filed a class-action lawsuit challenging portions of a new initiative, Proposition 69, that requires DNA testing of people who are arrested for but never convicted of a crime.

"California has the most draconian DNA database system in the country because of Proposition 69," said ACLU attorney Julia Harumi Mass. "We are seeking an injunction against the testing, analysis and indefinite storage of DNA from our clients and Californians like them. We are asking the federal court to protect our fundamental rights to be secure from unconstitutional police searches and to privacy in our personal medical and genetic information."

Under the law, people arrested but who are never charged, who have their charges dropped or dismissed, or who are acquitted at trial, all nonetheless must submit their DNA to police for analysis and inclusion in a statewide database.

ACLU of Massachusetts Warns that Random DNA Dragnets Hinder, Not Help, Crime Investigations (4/15/2005)
Reports that police have arrested a suspect in connection with the murder of Truro resident Christa Worthington based on a DNA sample taken more than a year ago highlights the importance of not over-whelming the state crime lab with ineffective and wasteful DNA roundups of ordinary citizens, the American Civil Liberties Union of Massachusetts said today.

"The arrest of a suspect in this tragedy is a positive development," said Carol Rose, Executive Director of the ACLU of Massachusetts. "But this case shows that massive DNA round-ups of hundreds or thousands of innocent people may actually hinder criminal investigations by increasing the backlog of work at the state crime lab."

Expanding Forensic DNA Databanks (3/20/2007)
State and Federal DNA databanks are expanding at an alarming rate. A crime prevention tool that was originally intended only to track the most dangerous convicted felons, police departments and other law enforcement agencies across the country have begun collecting and permanently storing DNA from arrestees and other innocent persons. This trend not only represents a grave threat to privacy and the 4th Amendment, but it also turns the legal notion that a person is "innocent until proven guilty" on its head.

Council For Responsible Genetics: Expanding Databases, Declining Liberties
The past decade has witnessed an extraordinary growth in DNA databases for use in criminal intelligence and health research, ranging in size from a few hundred to a few million samples.

The United Kingdom has led the world: its National DNA Database (NDNAD) is the oldest, largest and most inclusive national forensic DNA database in the world. Founded in 1995, it now contains DNA samples and profiles from more than 2.5 million individuals and is expected to expand over the next few years to include some 5 million people, nearly 10% of the country's population. [1,2] On file is DNA drawn from people convicted of a wide range of crimes, including serious violent crimes and minor public order offenses, as well as arrestees, many of whom have not been convicted of any crime.

The United States has followed closely. In 1998, three years after NDNAD went live, the FBI began operating its national database, along with a software system — the Combined DNA Index System (CODIS) — that enables local, state, and national authorities to share DNA profiles electronically. CODIS now contains more than 2.3 million offender DNA profiles.[3] Since 1998, all 50 U.S. states have actively collected DNA from varying populations in the criminal justice system, and by 2004, all 50 states were connected by CODIS.

Council For Responsible Genetics: Error Rates and Wrongful Conviction
Despite how it is often portrayed in the media, DNA testing is not infallible. DNA samples can be switched or contaminated, analyzes can be misinterpreted (especially when crime scene samples contain mixtures of DNA from more than one source or where DNA is degraded) and results can be mistakenly reported. All of these types of errors are known to have occurred.

The fallibility of DNA testing was made painfully clear when, in January 2003, the Houston, Texas Police Department's crime lab was shut down following an investigation that revealed widespread problems, including gross mishandling and misinterpretation of DNA evidence by laboratory personnel. Some 1,300 cases are under review. So far, one person, Josiah Sutton, has been released from prison after serving four years in jail for a crime he did not commit.[24]

Actual numbers of errors as well as error rates are likely to increase under rapid expansions of DNA databases, where DNA labs become saddled with extensive testing backlogs. While errors are so far thought to be the exception rather than the rule, the miscarriages of justice that have occurred so far should caution us against an over-reliance on this technology.

Council For Responsible Genetics-Retreating Justice: Proposed Expansion of Federal DNA Database Threatens Civil Liberties
On November 5, 2003, the U.S. House of Representatives passed by a vote of 357-67 a bill entitled the “Advancing Justice Through DNA Technology Act of 2003.” Contained within this bill is a version of the long-awaited Innocence Protection Act (IPA), which would grant any inmate convicted of a federal crime the right to petition a federal court for DNA testing to support a claim of innocence. State legislation of this sort has resulted in 141 postconviction DNA exonerations to date,(1) including the release of 13 inmates from death row.(2) A federal law to ensure national access to such testing would represent a meaningful step towards advancing justice.

Two other provisions of the bill, however, would do just the opposite. First, the bill calls for expansion of the Combined DNA Index System (CODIS), a database maintained by the FBI which allows DNA profiles to be shared and compared within and between states. HR 3214 would effectively authorize inclusion of DNA profiles taken from persons who have not been convicted of a crime. Second, the bill would extend indefinitely the statute of limitations for some cases involving DNA evidence.

A suspect could then be identified and tried for a crime any number of years after it has been committed. Ironically, these provisions, if enacted, could create a new round of innocence cases for people mistakenly convicted on DNA evidence that is no longer available, or is unsuitable for retesting.

ACLU Search Results for DNA
A search conducted on the ACLU web site using "DNA" as the keyword.

National Law Enforcement Summit on DNA Technology
Summit proceeding a PowerPoint slideshows

Creative DNA Collection Raises Ethical Questions: Police, Eager to Close Cases, Secretly Trail Suspects to Get Their Genetic IDs
When a 60-year-old man spat on the sidewalk, his DNA became as public as if he had been advertising it across his chest.

Police officers secretly following Leon Chatt last August collected the saliva — loaded with Chatt’s unique genetic makeup — to compare with DNA evidence from the scene of an old murder they believed he’d committed.

On Feb. 1, Chatt was charged in one of Buffalo’s oldest unsolved cases, the 1974 rape and stabbing of his wife’s stepsister, Barbara Lloyd.

While secretly collecting a suspect’s DNA may be an unorthodox approach to solving crimes, prosecutors say it crosses no legal boundaries — that when someone leaves their DNA in a public place via flakes of skin, strands of hair or saliva, for example, they give up any expectation of privacy.

But the practice has raised questions from Washington state to Florida, where similar collections are under scrutiny.

Taking DNA Pre-Conviction Widely Accepted
Hoping to solve and prevent more crimes, the federal government and a growing number of states are casting the DNA net wider by taking genetic samples from people accused but not convicted of breaking the law.

Civil liberties advocates say the practice makes a mockery of"innocent until proven guilty"and could overwhelm already-backlogged crime labs.

All states take DNA from convicted criminals and enter it into databases for use in solving crimes. But this spring, Kansas and New Mexico passed laws to start testing those only arrested for crimes, joining California, Louisiana, Minnesota, Texas and Virginia.

And last year, Congress said it was OK to take DNA from those arrested for federal offenses _ felonies and misdemeanors alike _ and foreigners who are being detained, whether they have been charged or not.


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