The most commonly proposed idea for building a universal database is to piggyback on the infrastructure provided by newborn screening programs. All 50 states require that hospitals test newborns for certain genetic diseases, for example, phenylketonuria (PKU), an inherited metabolic condition that can easily be treated by diet if it is caught immediately after a child is born. Infants with PKU who are not treated will suffer severe mental retardation and organ damage. To test for PKU and other genetic conditions, hospital nurses extract a few drops of blood from the heels of newborns. The blood is preserved on paper called “Guthrie cards.”
What happens to the blood samples today? Are they destroyed after the tests are completed? States handle the blood samples differently. In 2002 it was revealed that South Carolina was storing more than 300,000 blood samples of newborns.47 The blood samples on the Guthrie cards could be used to create a national DNA data bank by profiling the samples of the newborns. Eventually the entire population of those born in the United States would have DNA profiles in a central data bank.
The sheer costs of such an expansion provide a considerable barrier, at least for the near future. At a highly conservative estimate of $50 a sample, it would cost the government $15 billion to test the population’s DNA, and $200 million per year to test the newborns born each year in this country. If we look just at the cost of testing newborns, we would be spending $3 billion over the first 15 years of testing with no expected return to law enforcement (since children under the age of 15 are unlikely to commit serious crimes).
A universal database also seems unconscionable when one considers the persistent and ongoing state of crime laboratory backlogs. In 2002 the Bureau of Justice Statistics of the U.S. Department of Justice (DOJ) conducted an analysis of the 50 largest crime labs in the United States and concluded that for every DNA analysis request completed that year, nearly two requests remained outstanding at the end of the year.48 In 2003 a special report released by the National Institutes of Justice estimated that more than 350,000 rape and homicide cases awaited DNA testing.49 These backlogs are intensifying with each DNA expansion. In March 2009 the DOJ released an audit of the convicted-offender DNA backlog-reduction program that showed that despite the more than $1 billion that the government has poured into labs around the country, and although a federal backlog-reduction program had helped reduce backlogs to some extent, we still have a nationwide backlog of somewhere between 600,000 and 700,000 convicted-offender samples. Presumably that does not include arrestee samples or crime-scene samples, including rape kits. The report projects that the backlogs are likely to increase because of “recent legislative changes.”50
In addition to newborn screening repositories, there are also an increasing number of “biobanks”—large collections of blood or tissue samples that often include genetic and other information derived from those samples and linked medical, family history, or lifestyle information. These biobanks can be publicly or privately maintained and are used for research purposes. In 1999 the National Bioethics Advisory Commission estimated that each year DNA from 20 million people in the United States is collected and stored in tissue collections ranging from fewer than 200 to 92 million samples.51 Some countries have begun to develop national biobanks that could be accessed and used for research. The Icelandic government passed a law in 1998 that allowed for the creation of the world’s first national biobank, but the project has stalled following significant public opposition over concerns about privacy and consent, as well as economic and technical difficulties. In the United Kingdom several proposals have been put forth for creating a national biobank, and at least one of those proposals explicitly called for linking the data bank directly with the forensic DNA database.52 Other countries that have started to create national biobanks include Norway, Sweden, Estonia, and Canada.53
Advocates for national biobanks see the prospects of a universal database as stemming inevitably from health databases. Philip Reilly, a member of the National Commission on the Future of DNA Evidence, stated in 1999:
If I was asked to prognosticate 50 years hence, . . . I think it is inevitable that we will move to universal DNA databanking, inevitable, because there will be such powerful, positive reasons to do so from the point of view of protecting the public health, avoiding disease and moving to a more preventive approach to medicine, that we’ll get those for non–law enforcement reasons and then it will be irresistible to use that database.54
A universal forensic DNA database based on newborn screening programs would not be truly universal, since not everyone living in the United States was born in the United States. Approximately 12 percent of the U.S. population is foreign born. One possibility is that DNA testing would be added to a growing litany of paperwork and tests—including fingerprinting and retinal scans—that visitors are currently required to undergo upon entering the United States. Many have pointed out that implementing a DNA-collection program at the borders could be immensely complicated. Richard Thomas, information commissioner in the Home Office in the United Kingdom, has stated:
I think we have to think very long and very hard before going down the road of a universal DNA database. . . . There are some risks involved. . . . And then there are the practicalities. It’s not just the millions of people coming through Heathrow or Gatwick every day and how we actually get their DNA. We have to have addresses, we have to record our own population and UK visitors. How do we keep track of people to match the DNA to individuals? So there are some immense practical issues as well as the civil liberties and the data protection issues.55
Another proposal for creating a universal DNA database is to do so through a national ID card. Every working person in the United States, whether or not he or she is a citizen, is required to have a Social Security number. Children who have bank accounts also must have a Social Security number for tax purposes. The personalized Social Security number is as close as Americans get to possessing a national identity card. Efforts to make that number appear on all passports and driver’s licenses have not succeeded. On the contrary, many states have turned away from requiring people to use their Social Security number on their driver’s licenses.
After the terrorist events of 9/11 the idea of a universal identity card for every adult American has opened up a new policy debate on the extent to which “proof of identity” through a mandatory federally issued card will help curtail terrorism. While identity cards are being discussed as a national mandate, they are being implemented in select populations. Beginning in March 2007, the Department of Homeland Security required that all port workers, including longshoremen and truck drivers, apply for identification cards, which include a fingerprint and a digital photograph.56 Although the driving force behind universal identification cards has been fear of foreign and/or domestic terrorism, other motives have begun to surface. Some of these include preventing crimes, especially for recidivistic offenders; identification of human remains; solving crimes; reducing racial and ethnic disparities in criminal data banks, where there have been disproportionately high numbers of minorities; preventing identify theft; and solving paternity disputes.
A future scenario in which every piece of DNA evidence lifted from the scene of a crime and run against the database results in a hit has some appeal. After all, a 100 percent hit rate surely would result in more crimes being solved. Although there may be disagreements about how many crimes would be solved by adopting a universal forensic DNA database, there is generally no disagreement that the database would likely generate more suspects, lead to more prosecutions, and be responsible for more convictions. It seems improbable but is possible that crime rates would also decrease because a potential rapist or burglar would know that he was almost certain to be caught. A universal database also has an egalitarian feel to it, even if it does not do much to address the real causes of racial disparities in our criminal justice system. At the level of the database, we would all trade some aspects of our privacy rights in exchange for some real or pe
rceived improvements in safety. This diminished privacy would be distributed across the nation rather than burdening particular groups of individuals at the level of the database, even if certain groups of individuals continue to be the ones who are targeted for arrest and prosecution.
The allure of DNA data banks goes well beyond identifying people who may have been at a crime scene. The databases are much more valuable than fingerprints for surveillance purposes, establishing biological relations in immigration, and supporting genetic theories of criminal behavior. Therefore, the debates over a universal data bank have destabilized the balance between social welfare goals and personal privacy. Under the guise of crime solving, DNA affords government an unprecedented technology of mass surveillance, which comes into direct and irreconcilable conflict with the Fourth Amendment to the Constitution.
Collecting everyone’s DNA for deposit in a searchable database would be the equivalent of a mass, permanent, and continuing dragnet. In Davis v. Mississippi57 the Supreme Court ruled that mandatory dragnet fingerprint campaigns, where there were not warrants, probable cause, or individualized suspicion, would violate the Fourth Amendment. Others have argued that mandatory universal DNA databases would alter “how we perceive ourselves as a free and democratic society.”58
For these reasons, universal databases should, and most likely will, be opposed. According to Jeffrey Rosen:
A universal database that can be consulted for any crime, serious or trivial, is one that many citizens would resist. It opens us to a world in which, based on the seemingly infallible evidence of DNA, people can be framed or tracked, by their enemies or by the government, in ways that liberal societies have traditionally found unacceptable.59
Part II
Comparative Systems: Forensic DNA in Five Nations
Chapter 9
The United Kingdom: Paving the Way in Forensic DNA
It is not necessary to destroy the DNA profile if an individual is arrested and subsequently cleared of the offence, or a decision is made not to prosecute.
—Association of Chief Police Officers, United Kingdom1
It is arguable that the general retention of profiles from the un-convicted has not been shown to significantly enhance criminal intelligence or detection.
—Police liaison officer, Scottish DNA Database2
The United Kingdom has paved the way in forensic DNA technology. Its massive National DNA Database (NDNAD) is the oldest, largest per capita, and most inclusive national forensic DNA database in the world.3 Founded in 1995, it currently contains DNA samples and profiles from nearly 4.5 million individuals, or approximately 7 percent of the U.K. population of 61 million. On file are DNA profiles drawn from people convicted of a wide range of crimes, including serious violent crimes and minor offenses, children as young as 10, and arrestees, many of whom have not been convicted of any crime.
It is curious that violent crime rates have been significantly lower in the United Kingdom than in the United States—including during the last decade when key policy decisions about data bank expansion were made—but England and Wales have, per capita, a far larger DNA data bank, indeed, the largest in the world. The United States has 20 times as many murders as the United Kingdom and 3.8 times the murder rate. The U.S. population is about 300 million. The number of murders committed annually in the United States from 2000 to 2005 averaged around 16,200, or 5.7 homicides per 100,000 people. In contrast, the United Kingdom, which has about 61 million people, experiences somewhere around 800 murders annually; from 2000 to 2006 the average murder rate was 1.5 per 100,000. If we list countries by their per capita murder rate, with the highest ranked being number 1, the United States ranks 24th and the United Kingdom ranks 46th.4 If the United States had the same murder rate as the United Kingdom, it would be seeing about 4,590 murders annually rather than four times that many (a rate of 1.5 per 100,000 applied to 306 million people).
What can explain why England and Wales have, by percentage of population, the largest forensic DNA data bank in the world? There are a few possible explanations for why the United Kingdom was a leader in setting up DNA data banks. First, the persons who discovered DNA profiling were the British scientist Sir Alec Jeffreys and his colleagues at the University of Leicester. Therefore, it was a matter of national pride that the United Kingdom exploit this technology to its fullest capacity. Second, there has been a rising xenophobia within the British Isles responding to threats from Muslim and North African extremists. National identity cards and ubiquitous cameras in central London are part of a national response to a fear of criminal activities, especially terrorism. Third, the first DNA dragnet took place in the United Kingdom, which brought international attention to the role DNA can play in criminal investigation. Fourth, there is a tradition in Britain of professionalized police work that has encouraged the ready adoption of new technologies to solve crimes. This tradition is reflected in Britain’s rich literary tradition of crime novels: for example, Sir Arthur Conan Doyle’s famous novels of Sherlock Holmes, a fictional consulting detective who brought skills of forensic science and deductive reasoning to criminal investigation, and Agatha Christie’s mystery novels, which created a mythic role for Scotland Yard in criminal investigations. Fifth, Britain does not have a bill of rights that protects personal privacy in the way in which it is designed to function in the United States and that could have provided some resistance against the United Kingdom’s collection of personal data for criminal investigation.
Thus the initiation of and drive for DNA collection in Britain occurred within a climate of public receptivity (or at least a lack of strong opposition) and a general expansion of police powers in response to national security threats. When DNA profiling became available and was proved to work, there was a strong receptivity within the British government to integrate it into the criminal justice system. In 1993 a royal commission report held that “it is important that the police make the most effective use possible of the technical means at their disposal including forensic pathology, forensic science, fingerprinting, DNA profiling and electronic surveillance.”5 Within this context and without constitutional or other initial legal barriers, the United Kingdom emerged as the world’s most aggressive nation in collecting and storing forensic DNA from its citizenry.
The World’s First and Largest Forensic DNA Database
In 1995 the United Kingdom established its National DNA Database (NDNAD) as the world’s first forensic DNA database. According to Robin Williams and Paul Johnson, “There is no singular and distinctive legislative instrument authorizing the collection and storage of DNA samples by the police in England and Wales or the retention and comparison of DNA profiles on the NDNAD.”6 Instead, a series of legislative proposals enacted by Parliament between 1994 and 2008 created and incrementally expanded police powers to obtain, store, and access biological samples and DNA profiles (see table 9.1).
In 1993 the United Kingdom’s Royal Commission on Criminal Justice formally recommended the creation of a national forensic database. The legal foundations for the database were provided the following year through the passage by Parliament of the Criminal Justice and Public Order Act of 1994. This act, described by Paul Johnson and colleagues as “a direct legislative measure enabling both the establishment of the database and the facilitation of its immediate growth,”7 gave police the power to take DNA samples without consent from anyone charged with any recordable offense. The law reclassified DNA swabs and hair samples from “intimate” to “nonintimate.” This allowed rapid expansion of the number of DNA samples collected by the police because, under British law, nonintimate samples can be taken without a person’s consent from anyone charged with a recordable offense. The law does not make a distinction whether the sample is relevant or irrelevant to the crime being investigated. The NDNAD went into operation the following year, with government funding by the Association of Chief Police Officers in partnership with the Forensic Science Service (FSS). Initially, only DNA profiles collec
ted in England and Wales were uploaded to the system. Subsequently, Northern Ireland and Scotland developed forensic DNA databases with their own criteria for inclusion. However, they too submit their profiles to the NDNAD.
TABLE 9.1 Key Legislation Related to Criminal Justice, Evidence, and DNA Data Banking in the United Kingdom, 1984–2008
Two databases make up the NDNAD. One consists of individuals whose DNA was collected for recordable offenses or who gave their DNA voluntarily subject to the authority of the Police and Criminal Evidence Act of 1984. The second database consists of profiles obtained from materials from unsolved crimes. There is also a Police Elimination Database that contains DNA profiles from many police investigators so that inadvertent contamination of crime-scene samples during collection and handling of the evidence may be detected. This database is maintained separately from the other databases in the NDNAD and is not subjected to routine searches. Unlike the Combined DNA Index System (CODIS, the U.S. federal database), the U.K. national database contains the names of individuals, their date of birth, gender and ethnic appearance (as defined by the police), and geographical locators along with the DNA profiles. As in the U.S. system, the biological samples collected as part of the United Kingdom’s forensic DNA program are retained indefinitely by the laboratories.
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