3/19/2006

Caught Up in DNA's Growing Web

Opinion piece by Harlan Levy, a former assistant district attorney in Manhattan, is a lawyer and the author of "And the Blood Cried Out."

Fifteen years ago, as a Manhattan homicide prosecutor, I was an aggressive proponent of taking DNA from convicted murderers, rapists and other violent felons so we could catch them when they committed crimes again.

I still firmly believe in the power of DNA to catch the guilty and exonerate the innocent.
But for all this technology's promise, proposals by some to extend DNA databanks far beyond convicted felons, and even to the general population, go too far.

In the early 1990's, state legislatures did what many early proponents of DNA urged: they passed laws to take DNA from those convicted of murder, rape and other violent felonies. Then they enacted laws to take DNA from most convicted felons. Misdemeanor sex crimes were next, a logical, intelligent measure.

But the proposed next steps in DNA collection were more problematic. In 1998, New York City's police commissioner, Howard Safir, proposed that DNA be taken from all arrestees. And Gov. George Pataki has sought to take DNA from people convicted of any misdemeanor, without proof that such offenders are more likely than the general population to commit violent felonies or sex crimes (the kinds of offenses where DNA evidence is most useful).

And the buzz today among prosecutors, judges and defense lawyers is that proposals to take DNA from the entire population are next.

What, if anything, is wrong with this picture? DNA databanks do help apprehend dangerous criminals (and thereby prevent crime). But most people aren't violent criminals and never will be, so putting their DNA on file exposes them to risks that they otherwise wouldn't face. First, the people who collect and analyze DNA can make mistakes (witness the Houston Police Department Laboratory, whose slapdash DNA procedures led to at least one wrongful conviction). Second, people can be framed by the police, a rival or an angry spouse. Third, DNA is all about context; there may be innocent reasons for a person's DNA to be at a crime scene, but the police are not always so understanding.

Indeed, with a universal national DNA databank, innocent people may be embroiled in criminal investigations when their DNA (a single hair or spot of saliva on a drinking glass) appears in a public or private place where they had every right to be.

Even if we get past those objections (do you trust the government with your DNA on file?), the practical barriers to universal collection loom larger still. In a nation with no institutionalized national identification cards, photo files or fingerprinting, just imagine requiring all citizens and residents to report to the local registry for DNA collection.

DNA databases should expand, but some fundamental principles should guide their development: government should aim DNA collection at those most likely to commit the crimes DNA can solve (rape and murder); before expanding collection, it should focus on improving laboratories and testing samples from unsolved violent crimes sitting untested in storage closets or refrigerators; and it should recognize (as have some but not all of our courts) that it does not have an unlimited right to every person's DNA without some showing of special need.

Caught Up in DNA's Growing Web - New York Times

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