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Osagie K. Obasogie

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Democrats and DNA Databases

Posted: 09/24/10 12:11 AM ET

The Democratic Party has long gained political capital and much of its identity by holding itself out as a champion of civil liberties. From supporting free speech to protecting individuals' privacy, Democrats have presented themselves as defenders of the basic principle that government should protect fundamental rights, and certainly not trample them. Yet recent developments suggest that this commitment to civil liberties may be wavering in one important respect: DNA databases.

Three recent political maneuvers highlight a troubling trend: Democrats' endorsement of giving government unprecedented powers to expand the size of DNA databases by lowering the bar for collecting and retaining individuals' DNA samples. Earlier this year, President Obama voiced his support for storing the profiles of those arrested but not convicted of certain crimes in DNA databases, saying "it's the right thing to do."

Along similar lines, Governor David Paterson of New York has introduced legislation -- initially conceived by former Governor Eliot Spitzer, also a Democrat -- that will roughly double the size of the state database by including not only individuals arrested for felonies, but many convicted of low-level misdemeanors. This would make New York the first state to widen the net in this fashion.

But perhaps most consequentially, the United States House of Representatives recently passed legislation that creates millions of dollars in incentives to encourage states to mandate taking DNA samples from individuals arrested for (but not necessarily charged with or convicted of) certain crimes. This provision (H.R. 4614) is part of the Katie Sepich Enhanced DNA Collection Act of 2010, named after the tragic rape and murder of a young New Mexico woman. The bill provides a 5% bonus in federal money granted to states under a justice assistance program for "minimum DNA collection," which includes taking DNA samples from felony arrestees of specified major crimes. A 10% bonus would be given to states that partake in "enhanced" collection, which includes the extra step of taking DNA from those arrested for specified lesser crimes.

To the extent that it is not uncommon for arrests to not materialize into charges or a conviction, this vote means that the federal government would pay states to engage in a practice that will likely lead innocent people's DNA to be stored alongside convicted criminals. (Federal law allows for expungement under certain circumstances, but the process can be drawn out and burdensome.) But given the civil liberties concerns that arise when government retains the private and sensitive information possibly embedded in DNA profiles -- not to mention the genetic surveillance that occurs when government routinely checks new crime scene evidence against stored profiles -- H.R. 4614 is most remarkable in that not a single Democrat in the House voted against it. Not one.

Moreover, this bill was thought to be so uncontroversial that a House Democrat moved to suspend the normal voting rules, a step typically reserved to quickly pass legislation deemed non-contentious. Other measures voted on the same suspension calendar as H.R. 4614 included H. Res. 792 (honoring Robert Kelly Slater for his contributions to surfing) and H. Res. 1256, which congratulated Phil Mickelson for winning the 2010 Masters.

Democrats seem to think that encouraging states to expand their DNA databases is no more significant than acknowledging a surfer's good deeds or congratulating the winner of a golf tournament. Yet scores of scientists and public interest advocates think differently. While there is a broad consensus that DNA evidence is convincing when trying to determine whether any two profiles match (such as in exonerations), a profound set of issues arise when the State amasses large forensic databases to identify unknown samples left at crime scenes. This effort to expand the size of DNA databases is intertwined with expanding uses of the profiles housed within them. And here lies the civil liberties rub that Democrats are largely ignoring.

Since it is thought to be exceptionally rare for two individuals to share the same genetic profile, DNA database expansion is attractive public policy in that it enables law enforcement to quickly and accurately identify perpetrators. This ties into the holy grail of forensic policing: "cold hits," or when unknown DNA materials left at crime scenes are run against database profiles with known identities. The larger the database, the more likely it is to find a match.

To make such determinations, forensic scientists typically identify 13 regions (known as loci) on a chromosome to assess profiles' similarity. A full match occurs when two profiles match across all 13 regions. Yet matches at fewer than 13 loci are increasingly being used to implicate suspects, with some experts having argued that 9 loci are enough to identify someone. Several states now use this approach to identify and arrest suspects - often with little other evidence than the "cold hit" itself. The end result is that with the political push to expand DNA databases size, a growing number of individuals are also being implicated by cold-hit evidence.

This approach has rightly led to important convictions. Yet several experts believe that the cold-hit approach may also be severely flawed, running the risk that innocent people may be implicated in crimes they did not commit. A recent look at Arizona's database, which contains over 65,000 entries, showed that 122 pairs of profiles matched at 9 loci while 20 pairs matched at 10; two pairs of siblings matched at 11 and 12 loci. It has been reported that Maryland's database showed similar oddities: in a database with approximately 30,000 profiles, 32 pairs matched at 9 or more loci and 3 matched across 13. Illinois' database reportedly has 903 out of a total of 220,000 profiles matching at 9 or more loci.

While close relatives often match at several loci, it's unlikely that familial relations fully explain this unexpectedly large number of matches. The entire enterprise surrounding DNA databases depends upon the ability to precisely identity perpetrators. But coincidentally matching profiles, initially thought to be statistically rare, may occur more often than anticipated.

How can so many purportedly unique profiles be so similar? This remains a mystery. Some argue that these figures are expected due to the unorthodox manner in which they were sought; comparing each profile in a database to one another (as done, for example, in Arizona) is not the same as comparing an unknown profile to each of those already in a database.

But this mystery is also wrapped in an enigma: when scientists have asked federal and state governments for access to their forensic databases to determine why so many ostensibly unique profiles coincidentally match, they have been repeatedly told "no." And just as Congress is preparing to provide incentives for state governments to expand DNA databases by including arrestees -- which may further aggravate the problem of coincidental matches -- the FBI is disincentivizing states from working with academic researchers by threatening to rescind their access to federal databases if they open up their own databases to outsiders.

On top of the profound civil liberties issues raised by the distinct possibility that coincidental matches may lead to innocent people's incarceration, DNA databases raise particular problems for racial minorities. Due in part to racially biased police practices, Blacks make up an estimated 40% of the federal DNA database while only constituting 13% of the population. Similar dynamics are likely in play at the state level. Thus, the civil liberties issues linked to expanding DNA databases can compound: over-policing communities of color leads to their over-representation in DNA databases, which may subject these individuals to a higher chance that a coincidental match may falsely implicate them in crimes they may have nothing to do with.

Democrats have long worried about the political costs of being called soft on crime. But the issue of expanding DNA databases isn't about being soft or hard. Rather, it's about being smart and just. As H.R. 4614 heads to the Senate Judiciary Committee, all members of Congress -- not simply Democrats -- need to take a close look at this issue. Many innocent people's freedom may hang in the balance.

Osagie K. Obasogie is an Associate Professor of Law at the University of California, Hastings with a joint appointment at UCSF Department of Social and Behavioral Sciences and is a Senior Fellow at the Center for Genetics and Society.