Innocent or Guilty: In the DNA Profile Gotcha Game It No Longer Matters

 

By Tammy Johnson, racial justice activist and writer living in Oakland, California,

According to a recent report released by Generations Ahead, an aggressive expansion of DNA databases in states across the country now includes the collection of DNA from individuals merely arrested for a felony offense, before a trial determines their innocence or guilt.. When your DNA sample is collected upon arrest, it will remain in the system indefinitely. If you have the resources, you can pursue an extensive legal process for its removal. Once in the system, however, your DNA sample will be compared against DNA samples collected from new crimes every week.

The report notes that as of September 2011, the FBI has a database of 10 million profiles and expects another 1.2 million by 2024. They are also managing a backlog of 600,000. “These databases have been a valuable tool in identifying individuals convicted of violent offenses,” says report author Marina Ortega, “but their utility has been greatly undermined by the structural inequities in the criminal justice system that make whole communities, too often people of color, a target.”

Besides highlighting some of the issues that warrant a robust public debate, the report makes some key recommendations: limiting the use of DNA databases to cases that involve violent crimes, expunging DNA samples and profiles of innocent individuals, and implementing clear and transparent oversight of all DNA labs. It points to promising model policies in California, Virginia, Texas, and New York that add additional enforcement safeguards such as making tampering with DNA samples a felony offense and instituting independent review panels and audit systems.

Wondering why we should care? Consider the list of crimes under disorderly conduct that can be subject to felony offenses under aggravated circumstances: public drunkenness, inciting a riot, disturbing the peace, loitering in certain areas, fighting, obstructing traffic, use of extremely obscene language, unreasonable noise, etc.

Now imagine being arrested for one of these as a felony offense and having the charges dropped the next day or the next month. Either way, your DNA is going into a database. If convicted, it will remain there for the remainder of your life. If innocent, you can petition to have it expunged (removed) after three years. In California, the process involves a wrangling of legal paperwork: 1) a certified copy of the court order reversing and dismissing the conviction or case; 2) proof of written notice to the prosecuting attorney and the Department of Justice that expungement has been requested; and 3) a court order verifying that no retrial or appeal of the case is pending.

Proponents argue that forensic DNA databases aid in the investigation of violent crime, and due to high recidivism rates, being able to match DNA left at crime scenes by repeat offenders increases the likelihood of convictions. However, many experts are critical of ever-expanding categories of people and crimes for which DNA is collected. They argue that the collection and storage of DNA from individuals arrested for but not convicted of a crime violates the fundamental premise of our legal system that individuals are innocent until found guilty. Further, the permanent storage of DNA from these individuals leaves them under potential genetic surveillance for the rest of their lives. Critics also point out that the expansion of DNA databases is compounding the problem of the extraordinary racial and ethnic disparities in arrest and incarceration rates, brought on in large part by a failed 40-year war on drugs.

“The presumption of innocence is rapidly being transformed into a presumption of future guilt,” says Marina. In addition, newer techniques such as familial searching now include innocent family members of individuals with DNA profiles stored in a database. As the databases grow, these lines will be continually blurred for more and more categories of people, especially vulnerable populations.

There is little doubt that DNA plays an important role in the criminal justice system. Many of us are familiar with the heart-wrenching stories of people exonerated through DNA evidence after serving years in prison for crimes they did not commit, or the survivors of sexual assault whose assailants were apprehended thanks to DNA matches. These examples are powerful reminders of the utility of DNA, but they only tell part of the story of DNA in the criminal justice system.

 

For more about this topic go to https://www2.gotomeeting.com/register/605910434 where you can view the report and rsvp for the December 7^th webinar.