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State DNA laws help fight crime, but critics cite privacy concerns

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- New York adopted a DNA law in 1994, requiring people convicted of 21 types of violent felonies including rape and murder to submit DNA samples to the state police.

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Last year, at Gov. George Pataki's urging, the legislature expanded the law to requiring DNA-testing of 100,000 convicted violent criminals and some nonviolent offenders, according to Pataki spokeswoman Caroline Quartararo.

The DNA test results are being added to a statewide DNA database, designed to help police track serial offenders and prevent future crimes, she said.

"We call (DNA sampling) a miracle for justice here in New York because it irrefutably identifies an individual," Quartararo said. "DNA is not just important for solving crimes, but also to make sure when we arrest someone and convict someone, we have the right guy."

Such sentiments are echoed across the country. Within the past decade, all states have adopted DNA database laws, said Chris Asplen, executive director of the National Commission on the Future of DNA Evidence, an arm of the U.S. Department of Justice.

Though the laws differ in the types of offenders to be DNA tested, most require samples only from those convicted of such violent crimes as rape and murder, Asplen said.

And all states require their law enforcement agencies -- usually the state police -- to create DNA databases with an eye toward building a vast, national database in the future, he added. Currently, some 30 state databases -- or databanks as state officials call them -- are linked through the FBI, Asplen said.

Critics cite privacy concerns

The growing trend of using DNA for criminal justice purposes is intensifying critics' privacy concerns.

Civil libertarians note that the Fourth Amendment to the U.S. Constitution says people have the right to be free from "unreasonable searches and seizures," a clause from which courts have derived people's right to privacy. Critics say the key is to balance the criminal justice and privacy interests in the face of rapidly improving DNA technology.

"On the surface it looks very nice to say we need to catch villains," said Margaret Berger, a professor at the Brooklyn College of Law in New York City. "But I think it also looks very nice on the surface to say we need to preserve privacy."

Barry Steinhardt, associate director the American Civil Liberties Union, conceded that courts have ruled that state DNA laws are constitutional under the Fourth Amendment.

However, as police become more familiar with the technology and the technology itself grows, significant constitutional and criminal justice issues would continue to rise, he said.

Each person's DNA -- the genetic code in a person's cells -- is unique, except in the case of identical twins, he noted.

DNA tests can show the genetic makeup of individuals and reveal information such as diseases they are prone to and whether they are psychologically prone to committing certain types of crimes, critics have said.

Steinhardt said he worries that not all state laws clearly specify what types of tests police can conduct on the DNA samples collected from inmates and crime scenes.

New York, for example, specifies that the information may be used for law enforcement purposes only. But Massachusetts law says the test results can be used "humanitarian purposes" without defining what that means, he said.

"That's a loophole you can drive a truck through," he said.

Calls for a federal law

Ironically, some critics and proponents of DNA laws agree that Congress must pass a DNA databank law to enforce a uniform set of standards. They say the law must spell out the types of genetic information police can obtain, protect against "genetic discrimination," and require states to destroy the analyzed samples.

Howard Safir, former New York police commissioner and a leading proponent of DNA use by the police, bluntly called most state laws "abysmal" for their lack of uniformity. However, he also attacked critics' privacy concerns as overblown.

Safir said the United States lags behind other advanced countries in using DNA technology to fight crimes because of the privacy issue. Great Britain, which adopted a national DNA law in 1995, has solved some 70,000 crimes by matching the DNA at crime scenes to those in the database, he said.

"We should have a national law, I believe. Once we use sample, destroy it. When you destroy it, you are not losing anything; you already have the genetic code," Safir said. "The English are clearly ahead of us again and we need to take note."

DNA laws and current problems

Congress did pass a DNA law six years ago, but did not order the creation of a nationwide DNA database, Asplen said.

Instead, the DNA Identification Act in 1994 established guidelines for a nationwide DNA database system to be administered by the FBI. The measure also gave states money to establish their own databases, according to Asplen.

The biggest obstacle to forming a nationwide database, he said, is inadequate funding by state legislature, which has led to a nationwide backlog of over 1 million samples awaiting analysis and computerization.

Legislation now pending in Congress would provide states $170 million to reduce the backlog, Asplen said, adding the money still would be insufficient but at least would be a start.

"Ultimately it all comes down to money, ultimately it all comes down to lab capacity," Asplen said. "One thing we are clear about is if that money were to pass (in Congress), thousands of lives will be saved."

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New York DNA database
Virginia
National Commission for the Future of DNA Evidence

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