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Published on Thursday, October 22, 2009 by Mission Local (San Francisco Chronicle)

DNA Profiling: You May Be Next

Some agencies deem the database system so valuable they have been making deals with offenders in exchange for a DNA sample

by Patrick Kollman

Since its discovery a quarter century ago, the DNA fingerprint has been hailed as a pivotal tool in solving crimes and exonerating those wrongly convicted.

But as it celebrates its 25th anniversary, the question of how DNA evidence is being used and how samples are being extracted, have come under fire from civil rights activists and many criminal justice experts.

(Photo by Tom Ellenberger via Wikimedia) Proposition 69, passed in 2004, made California one of now 21 states that require DNA sampling for some arrestees. This voter-approved initiative mandated that this extend to all felony arrestees by Jan. 1, 2009-and the legal backlash has already begun.

Earlier this month the American Civil Liberties Union of Northern California (ACLU-NC) filed a lawsuit against the state of California charging that the statute on DNA collection violates search and seizure laws under the Fourth Amendment, and due process under the 14th Amendment.

The ACLU's lawsuit has fueled the debate over the limits and scope of DNA sampling even as its use is accelerating.  In August 2007, eight states required DNA samples from some arrestees. That number has continued to rise, jumping 50 percent-from 14 states to 21-just this year. In April the federal government began taking samples from suspects arrested on federal crimes, and will also collect DNA from detained undocumented immigrants.

On one side are those who argue, like the lawyers in the ACLU case, that collecting samples from anyone merely arrested for a crime violates fundamental civil rights. On the other side are those pushing for continued expansion of the database, championed as the foundation of crime prevention in the 21st century.

The FBI, which administers the National DNA Index, says that more than 94,000 cases have been aided through its database network.

Law enforcement agencies have long collected personal data from those arrested, ranging from photographs and home addresses to fingerprints. But until recently, DNA evidence has only been collected from the most violent offenders.

"People who are doing nothing more than exercising free speech right are finding themselves with their DNA on government databases," said Michael Risher, lead attorney on the ACLU case.

Risher is concerned about the "incremental, uni-directional" push towards expanding criminal DNA databases by including those never convicted of or charged with any crime.

The founder of DNA fingerprinting, British geneticist Sir Alec Jeffreys, expressed concern this year over law enforcement's expansion of the United Kingdom's database after the European Court of Human Rights ruled that the U.K.'s retention of biological samples and DNA profiles of people suspected but not convicted of offenses "failed to strike a fair balance between the competing public and private interests."

It is the lack of public discourse on the subject that concerns Marina Ortega, associate director of Generations Ahead, an Oakland-based group that works towards expanding the public debate on genetic technologies and promoting policies protecting human rights.

"Most of what's happening is happening between scientists and lobbyists," said Ortega. "The technology is moving much faster than society's ability to understand it."

Risher said he does not oppose the extraction of DNA samples wholesale, just the increasingly broad expansion of the law.

"DNA evidence is a fantastic tool in the criminal justice system, but like any tool, you have to be careful to use it wisely."

Lily Haskell is a plaintiff in the ACLU's case. She was arrested in March at a protest on the sixth anniversary of the Iraq War, but ultimately was never charged with anything. By law she was forced to give a DNA sample.

"When my DNA was asked for, I asked to speak to an attorney and was told I would get a misdemeanor for not providing DNA, even if I didn't provide it on the basis of wanting to talk with lawyer," said Haskell.

When collection laws first started to expand, a lot of people resisted giving up their DNA samples, said Bicka Barlow, deputy public defender in San Francisco.

"They solved that problem by changing the law and making it a crime to resist giving DNA," she said.

The original 1989 DNA collection law in California established a databank and required only people convicted of murder or felony sex offenses to provide DNA samples.

By 2008, the law required adults arrested for a registrable sex offense, murder or voluntary manslaughter - or for attempting one of these crimes - to provide samples to law enforcement officers.

While part of the 2004 initiative, the expansion of the law to all felony arrests under Proposition 69 was not implemented until 2009.

A result of the new laws, said Ortega, is that databases are rapidly expanding and changing in composition.

"Previously, DNA databases were used to identify the most violent of people," she said. "But when you're putting people in there for writing bad checks or possessing drugs, you are diminishing returns," said Ortega.

The database in California is administered by the state Department of Justice whose central laboratory is the Jan Bashinski DNA Laboratory in Richmond. There are 17 local laboratories and five additional Bureau of Forensic Sciences labs within the state's DNA Databank Program. San Francisco's lab is the police crime lab.

According to California's DNA Databank Quarterly Report, 73,797 DNA submissions were added to the database in the first quarter of 2009, compared to 34,897 in the final quarter prior to the statute taking effect-an increase of 111 percent.

The 236,970 profile submissions in the first nine months of 2009 already exceeds the roughly 200,000 from last year.

And amongst these samples, legal experts argued, there are errors.

With so many samples it is inevitable that there will be mistakes, said Risher, citing a cross-contamination at a state-run Sacramento lab where DNA discovered on a cigarette matched the profile of a sexual assault victim from another case. Cross-contamination occurred when the sample from the cigarette was processed close to the victim's vaginal sample.

"Everybody thinks DNA is this gold standard, but it's still just as susceptible to human error," said Ortega. "Inevitably there are humans interacting with this sensitive material. That allows room for error."

Another possible source of error is actually the improvement in crime lab technology.

"When you start talking about crimes in a public place, combined with increasing sensitivity of DNA equipment, it raises the possibility that you can find DNA at a scene for someone that had nothing to do with the crime," said Risher.

Errors do occur, said Michael Rushford, president of the Criminal Justice Legal Foundation. But the positives far outweigh the negatives.

"The pressure needs to be on doing this right and doing this well," he said.

Supporters of the expansion of DNA collection point to its role in exonerating more than 200 wrongfully convicted people and convicting thousands of criminals who otherwise may never have been caught.

The expansion of the databases is a good thing, said Rushford.

"The more DNA evidence in the database, the better," said Rushford. "I would be happy to give my own sample."

Rushford said that he sees no difference between DNA samples and the other data that police gather from a suspect upon arrest.

"When someone is arrested for a crime and booked, even if they are Mother Teresa, they take fingerprints, photographs, etc. They accumulate a whole slew of personal information," said Rushford. "I don't know why anyone would want to inhibit such a valuable tool to exonerate the innocent and convict the guilty."

The San Francisco District Attorney's Office said it has found DNA databases to be an important tool in resolving cold cases.

"We support expanded resources for labs to analyze DNA and assist law enforcement in resolving violent crimes," said Brian Buckelew, assistant district attorney.

In Orange County, the Office of the District Attorney has decided that DNA evidence is so valuable that they are willing to cut a deal with suspects.

Beginning last year, the office began a program that allows most non-violent misdemeanor offenders the option of dismissal in exchange for a DNA sample to bolster their local database.

As of June 2009, the California Department of Justice boasted 9,907 investigations aided through the state database, whose total number of profiles, 1.35 million, is the third largest database in the world.

Recent court rulings provide no bellwether as to the likely success of the ACLU's lawsuit against the state.

In 2006, the Minnesota Court of Appeals ruled that the state law authorizing DNA sampling from those who have been charged but not convicted of crimes violates defendants' Fourth Amendment rights.

On Sept. 30, however, an Indiana appeals court ruled that police don't need to obtain a search warrant before forcing someone to submit a DNA sample.

Neither state requires samples be taken for all felony arrests like California.

The ACLU is hoping to file a motion for preliminary injunction in their case within the next few weeks. The court will hear the case about a month after filing, said Risher.

The law is moving in the direction that eventually everyone will be in a database, said Ortega, who would prefer a broader public debate on the utility of a database including many people never charged of any crime.

­"I think in 10 years, if not sooner, every baby's blood will be taken at birth and their DNA will go into that database," said Rushford. "It's kind of Big Brother, but I think we're already there."

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