O'Malley Comments on DNA Collection

The Economist magazine is holding a debate on the ethics of DNA databasing. Following is Governor Martin O'Malley's comment on the subject from 3/27/09.

In January 2007 I was sworn in as Governor of the State of Maryland. I inherited a shameful backlog of 24,000 convicted offender samples that had not been tested for DNA. These samples were keys to convictions, justice, exoneration and, to the extent possible, closure for victims of violent crime.

In my first year of office, we eliminated that backlog. In my second year, in collaboration with the Maryland General Assembly, our state took the courageous next step of expanding our DNA testing from convicted offenders to those charged with crimes of violence. And as a direct result of these actions, in just two years more than 130 murderers, rapists, robbers and burglars were behind bars in Maryland, thanks to DNA. Simply put, when we increase the library of DNA samples in our state against which evidence can be matched from the scenes of crimes, we solve more crimes.

Every day that we fail to recognise our ability to collect DNA fingerprints and match them against crime scene evidence to solve crimes, is another day when Marylanders are unnecessarily made vulnerable to repeat violent offenders.

Thirteen states have enacted legislation to require DNA samples to be taken from certain felony arrestees. The practice is legal, constitutional and has withstood judicial scrutiny.

Both the high courts in Maryland and Virginia have found that requiring a DNA sample after arrest does not violate the Fourth Amendment (Anderson v Commonwealth of Virginia 634 S.E.2d 372 (2006) and State v Raines 844 A.2d 427 (2004)).

In Anderson, the court held that the taking of a DNA sample at the time of arrest "is permissible as a part of routine booking procedures. As such, no 'additional finding of individualized suspicion' much less probable cause, must be established before the sample may be obtained." The court cited Raines for the proposition that the DNA profile "is akin to that of a fingerprint. As such, appellees and other incarcerated individuals have little if any expectation of privacy in their identity."

Anderson goes on to state that "the analogous treatment of the taking of DNA samples to the taking of fingerprints has been widely accepted." The opinion cites federal courts in the Fourth Circuit, the Second Circuit and the Ninth Circuit which support this premise. Anderson also cites state appellate courts in New Jersey and Oregon which have held that buccal cheek swabs are not more intrusive than fingerprinting and thus an additional finding of individualised suspicion is not required before a sample can be taken.

Forensic DNA samples are not used for genetic predisposition, medical or familial purposes. The genetic markers used in law enforcement databases, often characterised as junk DNA or non-coding DNA, do not constitute a threat to privacy. DNA profiles simply list the number of repeats found in 13 non loci or STRs (Short Tandem Repeats) These loci have little if any medical predictive value or significance and thecurrent understanding of the selected 13 loci is that they lack a biological function. The 13 loci have not been determined to cause a physical trait, but are accurate in establishing identity.

Crime labs do not have the expertise, equipment or capability to delve into all the medical possibilities or fingerprints or DNA. Simply put, the DNA analysed in our criminal justice process does not contain genetic information on individuals or their families. It is not the same DNA sampling that is performed by medical doctors. The DNA loci analysed yields purely identification data. The DNA data do not supply codes for cancer, genetic diseases, birth defects or other medical information. DNA sampling upon arrest is an entirely different process from DNA research that is conducted in the medical field.

There are existing laws in place to protect the DNA collection and storage process, and there have been no proven cases of the misuse of DNA samples. At the Federal level, harsh penalties for misuse of DNA are already in place. Under the Federal Justice for All Act (2004), the penalties for misuse of DNA increased. That law provides that anyone who misuses DNA analyses under 42 U.S.C. §14133(c)(2) or who violates the privacy protection standards under 42 U.S.C. §14135e, is subject to a fine of not more than $250,000 or imprisonment for not more than one year, or both. Prior to this amendment, the penalty was a fine of not more than $100,000.

Additionally, misuse of DNA information is also prohibited by Maryland law (Section 2-512 of the Public Safety Article, Maryland Code).

Collecting DNA samples at the time of arrest can prevent a certain number of violent crimes from occurring. Providing for the public safety of Maryland's residents is the government's highest obligation. In Chicago's Study on Preventable Crimes, the city determined that waiting to collect DNA until conviction can cost lives. Their examination of the criminal timeline of eight individuals demonstrated that 60 violent crimes, including 53 murders and rapes, could have been prevented if DNA had been taken during the booking process of suspects of violent crime. In Maryland's Study on Preventable Crimes, if DNA samples had been required upon arrest for three individuals in the study, 20 crimes could have been prevented.

Maryland's study cites the case of Alphonso Hill. During the past 30 years, Mr Hill was arrested over 30 times for rape, sex offences, kidnapping, assault and burglary. If Maryland had required him to give a DNA sample during his first felony arrest for assault with intent to rob in June 1979, a DNA match could have been obtained with the DNA evidence recovered from his first rape in July 1978. Upon conviction for that July 1978 rape, seven future victims could have been saved from subsequent rapes, sex offences, kidnapping, assault, burglary and sodomy, all committed by Mr Hill.

Collecting DNA samples at the time of arrest helps solve crimes and exonerate innocent people.

The comparison of crime scene DNA with the DNA of suspected offenders provides increased opportunities for conviction and exoneration. Since 1989, there have been more than 213 post-conviction DNA exonerations in the United States. Countless potential suspects have been cleared prior to arrest as the result of comparing DNA crime scene evidence with a suspect's stored DNA sample.

DNA databases also help purge racial bias from the criminal justice process. The science of DNA is blind to race and, unlike some eyewitness testimony, is not more likely to misidentify a minority suspect.

Maryland's pre-trial DNA collection law has extensive expungement and destruction provisions in it for instances when cases never make it to trial. This is an additional check and balance to ensure our law is respectful of privacy rights while focused on the ultimate goal of a safer Maryland.

In conclusion, the use of DNA technology to identify offenders and solve criminal cases quickly is a vital instrument in Maryland's mission to provide safe and sustainable communities for every Maryland resident. DNA provides vital identification information for us to rule out suspects and focus our scarce resources on those offenders who prey on our citizens. DNA is almost required by today's modern juries in their decision to convict the guilty. We have vowed to fight back against violent crime whenever and wherever it occurs in our state. This is not some pervasive enemy that remains beyond our reach, the constant scourge of civil society. By bringing together our innovation and technology against crimes of violence, we can better protect not only the rights of the accused, but our communities and neighbourhoods while we save lives.