Keep Your Hands Off My DNA

As fans of the “CSI” television shows know, DNA testing is an amazing tool for solving crimes. Tiny biological samples left behind by a criminal, such as blood, hair, semen or saliva, can be “profiled” and compared with DNA from possible suspects for a possible match. When police don’t have a suspect, they can search state and national databases for a match -- a so-called cold hit. California has a database that contains DNA profiles of convicted sex offenders and violent felons. Many criminals don’t have to worry about cold hits, however, because, if they are not convicted sex offenders or violent felons, their DNA profiles are not in the database.

Should we expand the state’s DNA database to include more potential criminals? Proposition 69 on the Nov. 2 ballot offers voters the opportunity to do just that. It would require collection of DNA from any person convicted of any felony. It also would require collection of DNA samples from people arrested but not yet convicted of felonies. Initially, this provision would cover only those arrested for violent or sex-related crimes, but after a five-year interval (presumably to allow the state to improve its testing capacity) the requirement would extend to anyone arrested for a felony. And it doesn’t stop there.

Under current law, police can collect samples from people they merely suspect of a crime, either by asking them to provide a sample voluntarily or by taking their DNA surreptitiously. (A favorite ploy is to collect a soda straw or cup from which the person has been drinking.) These samples can be compared only with samples from that investigation, and cannot be added to the state’s DNA database unless the suspect is indicted or formally charged with a violent felony or sex crime. Even then, the profiles do not stay permanently in the database unless the person is convicted.

Proposition 69 would eliminate these restrictions and allow samples collected from anyone who is a suspect for any crime to be typed and the DNA profiles to be entered into the state’s database. Under Proposition 69, a cop who suspects you of the crime of spitting on the sidewalk could collect your spittle, have it analyzed and have your DNA profile entered into the state’s database. Once your profile is in the database, it becomes part of a national database administered by the FBI that can be searched for matches to crime samples from throughout the U.S. and, in some instances, from foreign countries.

The protections built into existing law address concerns about genetic discrimination or violation of privacy. Information about the identity of samples is guarded and there are criminal penalties for misuse. But there are real problems, one being the potential for false identifications.

Although DNA tests are highly accurate, they are not infallible, as cases in the U.S. and abroad have shown. In two known cases, mistakes in DNA testing have sent the wrong person to prison. In five others, the wrong person was linked to a crime by a cold hit. Four of the five cases arose because of laboratory accidents in which DNA from one case was allowed to contaminate samples from another case. Luckily, the people identified by these false cold hits had rock-solid alibis.

Another danger for those in the database is a frame-up. Criminals watch “CSI” too, and there have been reports of criminals planting biological samples in order to mislead the police. The potential benefits to society of expanding the state’s DNA database in order to solve more crimes may well justify the risk that a few people will be falsely identified. It seems important, however, that the risks be spread fairly and evenly across society. And therein lies the most important flaw in Proposition 69.

Although it does not explicitly discriminate against the poor and minorities, Proposition 69 would surely have a disproportionate effect on those groups. The inclusion of felony arrestees is one example. The lifetime risk of felony arrest is many times higher for black males than white males; and the lifetime risk of being a suspect is probably even more disparate.

Proposition 69 allows arrestees who are not convicted to petition the court to have their DNA profiles expunged from the database, but that process would require time and money. Therefore, it could increase the disproportionate effect on the poor.

Within a few years, middle-aged black males would be far more likely to be in the database than white teenage males. This disparity might make sense if middle-aged black men were more likely to commit crimes than white teenage males, but crime statistics indicate they are not.

Expanding the state’s DNA database may well be worthwhile, but Proposition 69 is the wrong way to do it.