Civil Liberties

DNA Evidence Is No Panacea for Solving Crimes: Huge Backlogs, Inept Testing and Corruption Stand in the Way

Laws expanding DNA collection from people accused of crimes are passing in states across the country. But it doesn't mean that justice will be done.

In late summer 2003, 22-year-old Katie Sepich, a business student at New Mexico State University, was savagely raped, strangled, her body set on fire and then abandoned in a city dump site.

Katie's grief-stricken parents, Jayann and David Sepich, devoted themselves to seeking justice for their daughter. In September 2003, they published a heartrending plea in the NMSU newspaper, asking students and members of the community to come forward with any possible information that might lead police to her killer.

"The events that night have created a black hole in the souls and hearts of our family and those who knew and loved Katie," they wrote. "… Now is the time to come forward and help us keep this person(s) from hurting anyone else."

Some of you may possess information that could be useful to help us obtain closure so we can move on with our lives. Please help us! It is important that you think about what you were doing and what you experienced from the afternoon of Aug. 30 to the afternoon hours of Aug. 31. Did you experience anything that made you feel uncomfortable about a friend or a loved one?

While there was no immediate suspect in the case, investigators were able to take a DNA sample from skin and blood of Katie's attacker found under her fingernails. The sample was sent to the Federal Bureau of Investigation's national DNA database, where it would be matched against DNA profiles of criminals across the country.

"They are arresting people every day, so soon we'll know who killed Katie," Jayann Sepich said at the time. But when she and her husband realized that most states did not require DNA samples from all people arrested for felonies, the Sepichs were outraged.

They launched a mission to pressure states across the country to pass legislation that would force law enforcement to collect DNA samples from anyone arrested for a violent felony such as homicide, rape, kidnapping, carjacking or assault.

They named it "Katie's Law."

Fortunately, for the Sepichs, DNA eventually led detectives to find the man who raped and killed their daughter. Gabriel Avilla, 27, confessed to the crime in 2006. His arrest was upheld as a perfect argument for expanding existing DNA databases in states across the country.

In 2008, the Sepichs founded the nonprofit DNA Saves, whose mission is to "educate policy makers and the public about the value of forensic DNA."

"Had a DNA sample been taken from Katie's murderer ... upon arrest for an unrelated crime, the Sepichs would have discovered who killed their daughter only three months after her death," the Web site says. "Instead, Avilla remained free to victimize more unsuspecting daughters, while the Sepichs waited for answers.

"DNA Saves is committed to working with every state to pass laws allowing DNA to be taken upon arrest and to provide meaningful funding for DNA programs."

The Sepichs have attracted much publicity and support  -- People magazine recently did a profile on their efforts to pass versions of "Katie's Law" across the country -- and it's not hard to see why. DNA technology has not only revolutionized forensics; post-conviction DNA testing has also led to the exoneration of 240 wrongfully convicted people, including prisoners on death row.

Thanks to such results, along with classic tough-on-crime politics, DNA databases have exploded.

Today, every state, as well as the federal government, requires DNA testing of anyone who has been convicted of a felony. Soon, this will also include people who are arrested -- i.e., merely suspected of -- committing a felony. Some 21 states require testing of anyone arrested for a federal crime.

In June, Florida became the newest state to pass legislation requiring DNA samples to be collected from anyone accused of committing a felony. "This is common sense and the right thing to do," Gov. Charlie Crist said upon signing the legislation while flanked by dozens of police officers.

But despite its appeal from a criminal justice standpoint, the rapid growth of DNA databases have many people posing serious questions about where all of this is heading -- from privacy concerns to the question of whether a vast expansion of DNA collection is even logistically possible at a time of record budget constraints.

Some law enforcement officials are finding that what sounds like good policy before the cameras proves far more complicated in practice. As more states grapple to keep up with their growing DNA samples, the more DNA technology is proving to be both a blessing and a curse.

DNA Databases Lead to DNA Backlogs

DNA technology has been used in forensics for the past two decades, but only relatively recently has it been championed as a broad crime-fighting tool.

In 1994, as part of President Bill Clinton's massive crime bill (which also created 50 new felony designations), Congress passed the The DNA Identification Act, creating the National DNA Index System.

The new law gave the FBI the power to create an index of DNA records of anyone convicted of crimes, as well as samples recovered from crime scenes.

Although they were originally intended to target sex offenders, before long, the subject pool for these samples widened to anyone convicted of a "violent felony."

In 1998, the FBI launched the Combined DNA Index System Program (CODIS), an automated DNA information-processing and telecommunication system, to augment and support NDIS.

Described as "the core of the national DNA database," CODIS was designed to store DNA profiles from laboratories at the local, state and national levels. (According to the Department of Justice, the FBI provides CODIS software free to any state or local law enforcement laboratory performing DNA analysis.)

According to the description on DNA.gov, which provides state-by-state information on the DNA laws from Alaska to Wyoming, "The CODIS software … provides a central database of the DNA profiles from all user laboratories. A weekly search is conducted of the DNA profiles in this national database, known as the National DNA Index System, and resulting matches are automatically returned by the software to the laboratory that originally submitted the DNA profile."

Consolidating and cross-referencing DNA samples from dangerous criminals sounds like a smart idea, especially if information is processed in such an efficient-sounding manner. But since the creation of CODIS, years of legislation to expand DNA collection has led to a forensics backlog of emergency proportions -- and in some places, it has meant justice delayed in just the sort of cases the DNA database was supposedly designed to assist.

Take, for example, this growing mess in Los Angeles: In a stunning move, last month the Los Angeles Sheriff's Department announced it was halting DNA testing in sexual assault cases. Describing it as "out of cash and understaffed," the Los Angeles Times spoke to officials who said the department's lab simply could not keep up with the amount of DNA evidence in its possession.

The decision came some 10 months after the L.A. Police Department, "under pressure from watchdog groups and politicians," began a new policy of testing all rape kits for DNA instead of only those requested by detectives in a given case.

The promise, made last November, was considered farfetched from the start. ("That was never realistic," one supervisor told the L.A. Times.) Yet the policy was a response to intense criticism, which was summarized neatly by the New York Times in an editorial last fall condemning the "shameful" backlog of untested rape kits in the hands of L.A. law enforcement.

"Lawmakers need to address this ongoing insult to women and the intolerable loss for effective law enforcement," wrote the N.Y Times, blaming the crisis on "a lack of resolve, trained personnel and accountability."

Now, with California mired in a financial emergency, funding for the California Department of Justice lab could be cut by as much as $20 million next year, according to the L.A.Times -- "a move that, if approved by lawmakers, would force the lab to stop providing free DNA testing to 47 of the state's 53 county governments."

It was recently estimated that there are 400,000 rape kits languishing untested in crime labs and police possession nationwide, according to the National Institute of Justice.

But rape kits are only part of the story. Forensics labs across the country have been understaffed, underfunded and generally dysfunctional for years.

In 2004, a sweeping investigative story in the Chicago Tribune painted an alarming portrait of the nation's DNA labs.

"Revelations of shoddy work and poorly run facilities have shaken the criminal justice system like never before, raising doubts about the reputation of labs as unbiased advocates for scientific truth," it reported.

The far-reaching crime lab scandals roiling the courts are unlike other flaws in the criminal justice system -- the rogue prosecutor, the incompetent defense attorney, the unscrupulous cop -- because for years, the reputation of the labs had been unquestioned. 
But the consequence of lab errors, whether due to incompetence, imprecision or fraud is frequently the same -- an innocent person behind bars.

The Tribune cited problems from Virginia to Oklahoma to Texas, where the Houston lab scandal is the stuff of legend, and where calls to halt executions while the mess was sorted out fell on death ears. (In 2004, a whopping 280 boxes of evidence were discovered untouched from some 8,000 cases, some of which were 25 years old. "The boxes," the Tribune reported, "contained everything from clothing and weapons to a fetus.")

Things weren't much better at the federal level. In May 2004, FBI lab analyst Jacqueline Blake pleaded guilty to making false statements about approximately 100 DNA reports. In 2005, the Department of Justice Inspector General found that Blake had falsified her lab documentation to cover her tracks.

Discoveries like this are massive in their implications. As the Tribune report put it, "Given the sheer volume of cases that labs handle, the discovery of even a single flawed analysis raises the prospect of re-examining hundreds, if not thousands, of cases."

"In many jurisdictions, the task of re-evaluating that many cases is so daunting that authorities have declined to conduct broad audits, despite evidence that analysts have committed errors or engaged in fraudulent practices."

DNA Laws Keep Passing Across the Country

But even fresh scandals over the country's overstretched forensics labs have not deterred lawmakers from passing new laws demanding DNA collection from a growing pool of individuals.

In 2003, the Bush administration announced a dramatic expansion of the federal DNA database to include juvenile federal offenders as well as noncitizens arrested for felonies. Suddenly, the federal government would have the power to collect -- and store permanently -- DNA samples from any person arrested for any crime -- whether or not they were ever convicted.

"DNA is to the 21st century what fingerprinting was to the 20th," Assistant U.S. Attorney General Deborah Daniels said at the time. "The widespread use of DNA evidence is the future of law enforcement in this country."

DNA-collection advocates like to compare it to the age-old practice of fingerprinting. But Larry Frankel, state legislative counsel for the American Civil Liberties Union, argues, collecting DNA is, by leaps and bounds, a far more sweeping technology.

"A fingerprint is used to establish the identity of a person. A DNA sample, on the other hand, has the potential to be used not only to establish identity, but also to learn about a person's genetic makeup, family relationships, predisposition for certain diseases and medical conditions," he said. "A DNA sample, and the tests that can be conducted using it, can reveal a range of private information that many reasonable people would consider, and want to keep, confidential."

Such privacy concerns have long been expressed -- and not just by the ACLU. In fact, in 2005, Alec Jeffreys, the British scientist who invented DNA fingerprinting, gave an interview with the New Scientist in which he shared his thoughts on the expansion of DNA databases. (The DNA database was pioneered in the U.K.) "As a geneticist, I would greatly value the potential enormous power of the database for research," Jeffreys said. "But it's a gross infringement of civil liberties."

Jeffrys should know. In Britain he has witnessed the massive expansion of DNA collection -- a project so vast, it has turned the U.K. into what some describe as "a nation of suspects."

The database contains more than 4.5 million profiles, and since 2004, according to the BBC, "the data of everyone arrested for a recordable offense -- all but the most minor offenses -- has remained on the system regardless of their age, the seriousness of their alleged offense and whether or not they were prosecuted."

According to the European Court of Human Rights, this has inevitably included innocent people, even children as young as 10. (In December 2008, the court ruled that Britain had breached international law in its overzealous collection of DNA.)

In Frankel's opinion, this is the direction the U.S. is headed. The federal U.S. database is already the largest in the world. "I remember the first time I saw one of these DNA bills," he said. "I just knew this was a slippery slope -- its just going to keep expanding and expanding and expanding. This is really an attempt to get DNA on everybody."

If this sounds conspiratorial, consider this February article from the New York Times: "Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted. The move, intended to help solve more crimes, is raising concerns about the privacy of petty offenders and people who are presumed innocent."

Harry Levine, a professor of sociology at City University of New York, told the Times that the expansion is only the latest move in a long trend of widening the net for DNA collection.

"Over time, more and more crimes of decreasing severity have been added to the database. Cops and prosecutors like it because it gives everybody more information and creates a new suspect pool."

In fact, expanded DNA collection will more likely ramp up samples taken among populations already disproportionately caught up in the criminal justice system -- something that has been seen dramatically in the U.K.

The Times reports:

"As in Britain, expanding genetic sampling in the United States could exacerbate racial disparities in the criminal justice system, according to Hank Greely, a Stanford University Law School professor who studies the intersection of genetics, policing and race.

Mr. Greely estimated that African Americans, who are about 12 percent of the national population, make up 40 percent of the DNA profiles in the federal database, reflective of their prison population.

He also expects Latinos, who are about 13 percent of the population and committed 40 percent of last year's federal offenses -- nearly half of them immigration crimes -- to dominate DNA databases."

Fueling the DNA Backlog: Corruption and Corporate Profits

Unfortunately, when it comes to policy making, privacy concerns -- let alone concern for minority groups -- rarely trump "tough-on-crime" politics. If there is to be any moratorium on the rapid expansion of DNA databases, it is likely to stem from the same concerns as most criminal-justice reform: money.

"We have limited money, technicians, labs," Frankel said. "… Is this the best use of all of these resources? Especially since we know that there's this huge backlog of rape kits in this country? There's already a backlog of processing evidence. And every time you expand the evidence, you just build on the backlog."

Frankel cites a recent investigative story about the DNA backlog by ProPublica that reveals a new component to the DNA controversy.

Not only have labs have seen their DNA backlogs double in recent years, thank to new federal and state laws "requiring law enforcement to collect DNA samples from people convicted of -- or simply arrested for -- nonviolent crimes, including shoplifting," but more and more DNA analysts now say that the new laws are dangerous and counterproductive.

"Crime lab directors warn that analyzing these samples allows them less time to test DNA from crime scenes and serious criminals, leaving offenders free to prey on new victims," ProPublica's Ben Protess said.

More insidious still, ProPublica revealed that the expansion of DNA-collection laws has meant big bucks for companies with close ties to the federal government. If you never thought of DNA testing as a profitable venture, think again.

A firm called Gordon Thomas Honeywell Governmental Affairs "lobbies the Justice Department and lawmakers on behalf of the world's leading producer of DNA testing equipment."

"Despite that relationship," (or maybe because of it), "the Justice Department awarded Gordon Thomas Honeywell a no-bid grant in 2002 to do a key study on backlogs that has helped shape the government's DNA policies -- policies that have benefited the firm's private clients."

So, for example, in 2004, when the Bush administration passed the Justice for All Act -- which, among other things, was meant to address the DNA backlog -- the research from Gordon Thomas Honeywell's 2002 grant "helped inspire the law."

It was a nice little racket: The firm assessed the backlog, discovered that local labs took an "average of 30 weeks" to test rape kits, and then recommended that DNA databases be expanded anyway.

ProPublicasaid: "Despite the backlog, the study was sprinkled with references to the benefits of collecting even more DNA from nonviolent criminals, noting that the costs of such an expansion still needed to be determined."

The following year, the DNA Fingerprint Act of 2005 passed as an amendment to the reauthorized Violence Against Women Act. The push to expand DNA collection to anyone arrested of a felony -- and to store it -- had been stalled in Congress; slipping it into the VAWA was a shrewd political move.

Women's advocacy organizations like the Rape Abuse and Incest National Network threw their support behind it. "By lifting legal barriers to maintaining DNA data from criminal arrestees, this act will make it easier for state and federal law-enforcement officials to catch rapists, murderers and other violent criminals," RAINN said. The bill was passed by Congress almost unanimously.

"So now we have the federal government saying that not only people convicted of felonies [will have their DNA collected], but also people who are arrested," Frankel said. "The next big issue will be surreptitious collection and whether the government should be able to test DNA without your knowledge, much less your consent."

Indeed, this is already happening; "surreptitious sampling" has been called "a great tool" by law enforcement officials, who can collect DNA samples from suspects' discarded cigarettes, soda cans, etc., prior to their arrest.

"Police can take a DNA sample from anyone, anytime, for any reason without raising oversight by any court," Elizabeth E. Joh, a law professor at University of California at Davis, told the New York Times last year. "I don't think a lot of people understand that." 

Liliana Segura is an AlterNet staff writer and editor of Rights & Liberties Special Coverage. Follow her on Twitter at: http://twitter.com/LilianaSegura