DNA banking of criminal information is a source of controversy among many human rights activists. According to statistics, Criminal DNA databanks offer an effective means of controlling crime. Genetic information on criminals is being collected and stored in many states as a means of identifying current and future criminals. Statistics support the notion that collecting DNA information on criminals helps reduce crime. Case in point, the Division of Forensic Science has managed an average of 37 "hits" per month, where hits refer to a situation where DNA analysis of a crime scene has resulted in suspect matches from previously convicted offenders and subsequent arrest (DCJS, 2004). In Virginia the DNA databank database contains more than 200,000 of criminals (DCJS, 2004).
Proponents of DNA banks argue that DNA identifying information should be collected on larger segments of the population to better control crime. Currently DNA is only collected on an individual basis, from subjects that are suspected of committing crime or have been proven criminals. Opponents of DNA bank legislation however, argue that collection of genetic material en masse is a violation of an individual's constitutional right to protection of privacy. Collecting DNA information without having just cause is considered unreasonable search and seizure according to opponents. Additionally, opponents argue that information related to an individual's genetic make up is being disseminated to figures labeled authorized only by state officials, and as such they do not undergo sufficient scrutiny and the controls necessary to ensure an individuals right to privacy. These ideas and more are discussed in greater detail below.
The state of Virginia argues that the databank shouldn't be limited to only violent offenders. According to the statistics gathered by the Division of Forensic Scientists, more than 81% of hits "would have been missed if the Databank was limited to only violent offenders" (DCJS, 2004). Additionally 35% of violent crimes resolved were committed by people who had previously committed property crimes (DCJS, 2004). DNA databanks are thus concluded to be most effective only if they include all felons in all cases, not simply violent criminals.
DNA evidence has "revolutionized" the justice system, allowing authorities to compile a "genetic encyclopedia" of criminals for potential future use and identification by law enforcement officials (NPR, 2002). Those in support of DNA technology support the idea of testing all convicted criminals to establish a comprehensive databank so that law enforcement agents are better equipped to fight crime in the future (NPR, 2002). However, opponents argue that criminal DNA banking is a violation of privacy that could result in discrimination for reformed criminals at a later date (NPR, 2002).
Opponents of DNA banking have a point; the fourth amendment protects the right "of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated" (NPR, 2002). Unless however there is probably cause. Advocates of DNA databanks may also argue that criminals lose their rights to undue privacy when they commit a crime to begin with.
Proponents have argued that DNA samples should be collected on entire segments of the populations to enhance crime scene analysis and prevention in the future. From a criminal law perspective, collecting DNA samples from criminals is not much different than collecting an individual's fingerprint (Escanaba, 1998). Collecting DNA samples from a larger segment of the population however, such as a class of felons may (questionably) violate the 4th amendment protection against "illegal search and seizure" (Escanaba, 1998). One may argue that collecting such DNA samples from a large population would be done without probable cause (Escanaba, 1998).
State and federal law officials however still want to collect samples based on the idea that an individual "might" commit a crime (Escanaba, 1998).
Dr. Paul Ferrara of the Virginia Division of Forensic Sciences agrees that opponents have a point; DNA testing of criminals may eventually lead to DNA testing of individuals who are considered "a risk to society because of their so-called genetic propensity to crime" (Escanaba, 1998). This assumes that people may be genetically disposed to violent behaviors, which has not yet been validated or proven.
Benjamin Keen, a defense attorney in Boston, MA argues in favor of the data bank and has proposed that genetic investigation of behavior may "become a useful research tool in a number of areas in medical sciences, genetics and population sciences" (Escanaba, 1998). He notes that currently the DNA data bank law authorizes State Police who run the bank to disseminate genetic data to "authorized persons and organizations for advancing humanitarian purposes" (Escanaba, 1998). The identification of authorized personnel is left entirely to the discretion of state police. A proposed solution would be to severely limit individuals who have access to genetic information, to ensure the privacy of individuals that may be affected by DNA testing laws.
Another proposed policy alternative would be a provision for consent to the dissemination of genetic information to third parties. Currently the law does not require that people who have genetic material taken from them have to know about or consent to dissemination of their information to outside parties (Escanaba, 1998).
Resolution of Issue and Value Conflicts
Dr. Paul Ferrara of the Virginia Division of Forensic Sciences affirms the belief that DNA testing certainly favors the criminal justice system rather than individual citizens of the United States (Escanaba, 1998). The advantage of DNA testing, according to Ferrara, is that when a defendant is innocent, DNA may exonerate him/her, however if an individual is guilty, very often DNA results can implicate the criminal unequivocally (Escanaba, 1998). DNA testing has limitations; it can for example prove that a suspect was present during a rape; however it can't prove whether the act that occurred was violent in nature or not (Escanaba, 1998).
DNA testing is a valuable tool for criminal justice professionals. To protect an individuals fourth amendment rights to privacy, and insure the morality of DNA testing, officials must ensure they do not generalize populations and cause discrimination. As such, an appropriate compromise would be to continue DNA testing of violent criminals to build a database of offenders to screen from in the future. DNA testing can also be conducted on lesser offenders, however prior to releasing their information, the law should ensure that the individual in question is aware that their DNA information will be disseminated and to whom it will be given to. Anonymous DNA banking and testing can't be allowed, as it clearly violates constitutional freedoms.
Lastly, DNA banking should be allowed to continue if DNA samples are taken only from those populations who have given authorities just cause to be incarcerated and screened. The fourth amendment does indeed protect an individual's right to privacy, and DNA testing of large segments of the population, of people who "might" contribute to a crime, does violate certain unalienable rights as guaranteed by the constitution. The law need also establish strict guidelines for who may be authorized to acquire genetic information on criminals, to further protect their privacy.
DNA banking may prove an invaluable resource to law officials. Collection of genetic information of violent criminals has proven an adequate resource for preventing crime and apprehending criminals thus far. However, the collection of DNA information on large segments of "suspected" potential criminals violates individual's rights to privacy as guaranteed by the constitution. Further, collection and dissemination of genetic information without strict controls and guidelines further compromises an individual's right to privacy.
An adequate solution would be to allow DNA banks to continue to collect information on individual populations who have committed specific crimes. The criteria for collecting information must first be more adequately defined, and an authorization/consent process should be established to ensure an individuals right to privacy,…