When Those in Power Reduce You to a Pattern of Dots
Estimated reading time: 17 minutes
Background
In our slow, but continual march towards a police state, Delaware has introduced a bill mandating DNA collection of accused sex offenders. Currently, Delaware law only allows for the collection from convicted sex offenders. The new law also extends collection to any convicted violent felon.
So here we go. Introduce a law everyone can get behind, namely collect DNA of convicted sex offenders since sex offenders are more likely to commit their crime again. Yeah, yeah! Good law. Now comes the slow evolution to requiring DNA collection of those accused of sex offenses and those convicted of any violent felony. What group will the law be extended to tomorrow? How about ten years from now? How long will it be before every citizen is subjected to DNA collection for any infraction of the law?
The proposed law states "Additional safeguards and protections have been included in the law to balance the state’s interest in solving crimes against the rights of the arrested individuals...." What about the rights of family members of the arrested? Collection of the accused DNA sample means law enforcement (and anyone with access to the database, including hackers) not only has the accused's DNA profile, but also his/her family's DNA profile.
The proposed law mentions Maryland's case, U.S. Supreme Court v. King. By a narrow margin (5-4), the US Supreme Court upheld the conviction of King for a rape in which he was never a suspect, stating that the DNA collection was a "valuable crime fighting tool" and could be used as evidence in another case King wasn't a suspect in.
Anthony Scalia issued a scathing rebuke of the majority opinion. In effect, he said the Fourth Amendment made it clear that the government couldn't engage in a "fishing expedition" to find a criminal.
Unlike fingerprints, DNA defines the whole person and links the whole person to family members. A DNA database is ripe for abuse and "fishing expeditions." Maryland and DC are the only two jurisdictions that disallow "familial searches." At least eleven other states allow it. In short, familial searches are conducted when the DNA found at a scene of a crime comes up as a no match in the local and federal databases. Law enforcement then expands the search to "close matches." Usually, familial searches means entire families - often without their knowledge of the crime, much less the possibility of being a suspect - come under scrutiny.
The Golden State Killer example
Between 1975 and 1986, the serial killer dubbed "The Golden State Killer" eluded police for decades. DNA led to his capture, but not in the direct way we would hope. A family member submitted their DNA to one of those genealogy websites. The relative then voluntarily uploaded their results to GEDmatch (registration required), a social forum where people hope to find long lost relatives through their DNA results.
The police investigating the Golden State Killer searched the voluntarily uploaded DNA profiles and came up with a close match. DeAngelo and a couple of other relatives came under scrutiny. Information past this point becomes scant as the unsealed arrest warrant was heavily redacted.
At this point, it should be noted the police did nothing illegal. The redactions on the arrest warrant were probably to protect the identities of investigators and possibly to protect some "sensitive" information of police procedures. Without further investigation, one can't suppose that some of the redacted information was to cover up unconstitutional, illegal, or unethical doings.
What we do know is the police retrieved some discarded clothing from DeAngelo's garbage and found a DNA match pinning him as the Golden State Killer. Investigators then followed him to a Hobby Lobby and swabbed a DNA sample from his car door handle while he shopped inside. That DNA sample confirmed him as the Golden State Killer.
If the police followed all the laws and proper procedures in collecting the evidence, why should we be concerned? After all, a serial killer and rapist was finally caught and brought to justice.
Let's not forget the couple of family members who also came under suspicion. What we don't know is what happened with them. Were they tailed and had their DNA collected without their knowledge? If so, what happened to their DNA sample once they were cleared as suspects? Were the samples destroyed or do they sit in a database somewhere labeled "serial killer and rapist suspect?" Would the DNA sample come back to haunt them ten years later when they are refused a government job because a background check found their DNA in the database?
Right now, only convicted sex offenders - and if Delaware has its way - convicted violent felons and accused (keyword, accused, not convicted) sex offenders - have a DNA sample in the database. What employer would believe the person with a sample in the database when they answer, "I have no idea why it's there. I've never been charged with a crime?"
How Accurate Are DNA Tests?
Over a hundred years ago when we first began to learn about genetics, a program called eugenics was adopted as a valuable crime fighting tool. Genetics was infallible science so who could deny the results and conclusions? The program led to many innocent people being jailed and some states implementing forced sterilization programs to stop more infirm and criminals from being born in the first place. Hitler took the American eugenics program to its logical conclusion.
We understand a lot more about genetics than we did over a hundred years ago. Every person shares 99.9% of the same DNA. It's that extremely small margin of difference that makes each of us unique. And when those small genetic differences translates into the physical differences between us, those differences aren't an indication of one's criminal or antisocial tendencies. It does mean, however, that if you sample enough of the differences, you can uniquely identify an individual based on nothing more than the DNA sample.
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| In the world of DNA, this is you. |
DNA analysis, if done correctly, identifies an individual with an accuracy of 1 in 1.1 billion chance another individual might match the analysis. Another valuable crime fighting tool - fingerprints - identifies an individual, if done correctly, with an accuracy of 1 in 5.5 billion chance another individual might match the analysis. Apparently, fingerprints offer much higher variability to compare than DNA does, which results in a higher accuracy for identification purposes, but either analysis (fingerprint or DNA) is a highly reliable method for identifying an individual if the analysis is done properly.
Fingerprint analysis has been used for well over a hundred years. How accurate is it? Using experienced fingerprint analysts, a study in 2011 calculated the accuracy of fingerprint analysis at about ninety-three percent. Fingerprints are highly unique to individuals (even identical twins don't have the same fingerprints), but people make mistakes. The mistakes being made can be in how the fingerprints are collected to which whorls and arches in the print the analyst chooses as a reference point to how the analysts interpret the results. A seven percent error rate may not sound like a lot, but in real terms of our criminal justice system, it translates to seven innocent people being wrongfully convicted out of every hundred crime scene prints one analyst looks at. It is because of this margin of error that most criminal cases need more evidence other than fingerprints for a conviction. (There are other factors, such as a fingerprint only tells investigators who was at the scene of the crime, but not when they were there, that forces prosecutors to produce more evidence than just the fingerprint to get a conviction.)
The logical question, then, is DNA analysis subject to the same scrutiny and standards as fingerprints? The simple answer is no.
Just like we misunderstood the power of genetics over a hundred years ago when we developed our eugenics program, we misunderstand what DNA analysis tells us today. Like fingerprints, DNA, if properly analyzed, only tells us who was at the scene of the crime, but not when they were there. If the DNA is not collected properly, there can be cross contamination. If the person was only in the area of the crime scene, wind could blow hair or skin cells to a crime scene before the investigators got there. Yes, there's a dead body on the ground, people gather around, and they all leave DNA evidence behind.
And then there's that human error element, even if it's a low seven percent like in fingerprint analysis. Since DNA analysis is a relatively new forensic tool, studies showing its accuracy rates aren't readily available. But we know mistakes are made. A seventeen-year-old-boy and his friend were sentenced to 25 years in prison for rape based solely on DNA evidence. A persistent mother, who knew her son was innocent, successfully persuaded lawyers to look into her son's case.
For years, no one wanted to take the case because just as DNA evidence can free the wrongfully convicted, the generally accepted belief in the legal community is that DNA rightfully convicts the guilty. Turned out, the DNA evidence convicted the wrong person. The seventeen-year-old kid and his friend spent four-and-a-half years in prison before being exonerated.
Happy ending? Not really. Where is his DNA sample now, what label is attached to it, and does his criminal record now show a clean slate or an official explanation that he was wrongfully convicted? Or does it simply say he was released from prison four-and-a-half years later and his DNA sample sits in the crime database labeled as "rapist?"
What Delawareans need to demand
DNA analysis is a valuable crime fighting tool on par with fingerprint analysis. Where DNA collection defers from fingerprint collection is the extent of the information provided. Fingerprints simply tells someone "Kilroy was here." DNA tells someone "Kilroy was here and Kilroy is related to (insert whole family tree here). Kilroy is a Black male with sickle cell anemia and most likely will develop heart disease and Type II diabetes some time past his fiftieth birthday. Kilroy is prone to ADD (attention deficit disorder) and likely prone to depression or bipolar disorders."
Now, if you're Kilroy and thought you were perfectly normal...just like everyone else...how do you think law enforcement looks at you if they know your DNA profile before meeting you? How about a prosecutor when you show up in court for a speeding ticket? How about an employer considering you for a job you really want? How about you health or life insurance provider?
DNA analysis is more personal than allowing the law to search your house. If you don't want the law to legally search your house without a warrant, why would you allow them to collect your DNA without a warrant? And here's a paradox. Kilroy is convicted of a violent felony (serial killer, maybe) and is sentenced to life without the possibility of parole or maybe even the death penalty. What would be the purpose of collecting Kilroy's DNA and keeping it on record?
DNA analysis is a valuable crime fighting tool. Storing DNA analysis in one database is a hacker's...and Corporate America's...dream come true. In worse case scenarios, it's a corrupt government's dream come true. We're slowly evolving into a police state because a couple of generations being raised by helicopter parents have taught us we have a right to feel safe.
But no such right exists.
What does exist is our right to privacy. As Associate Justice Louis Brandeis argued in a dissenting opinion in the US Supreme Court decision on Olmstead v United States, (from Wikipedia):
The protection guaranteed by the Fourth and Fifth Amendments are broad in scope. The framers of the Constitution sought "to protect Americans in their beliefs, their thoughts, their emotions, and their sensations." It is for this reason that they established, as against the government, the right to be let alone as "the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth."Justice Brandeis' opinion is often abbreviated as every American has the right to be left alone. He meant every American has the right to be left alone, not just the Americans who haven't been arrested. The consensus, today, is a felon gives up his rights, but our Constitution says no such thing. The idea that felons give up rights because of their choices is born out of racist policies, not out of our Constitution. The belief that felons give up rights because of their choices is further strengthened through our collective fear. The racist reasons to deny felons the right to vote has been extended to deny felons the right to own a gun and now the right to control their own DNA, the essence of not only who they are, but who their family is.
Whether we're talking about denying one's right to vote, own a gun, where they can live, or control their personal information, all of those actions are directly contrary to the fundamental principles this country was founded on.
Yes, a felon in jail shouldn't be allowed to vote. The felon is in jail, not walking freely to a polling place. Once released, a felon should be free to walk to a polling place.
A felon shouldn't be allowed to own a gun. A gun would make it easier for the felon to break out of jail. Once released, a felon should be free to own a gun...unless the sentencing forbade it because the felony committed involved a gun. Think about it. Should anyone fear Martha Stewart, a convicted felon, from voting or owning a gun? Should her DNA have been collected since she is a convicted felon?
A felon who stands no chance of being released from jail shouldn't have his DNA collected. The felon isn't going anywhere to commit another crime. A felon who may be released? Put a reasonable time limit on how long the felon's DNA can be kept on record. That should be determined at the time of sentencing.
In a country where 40% of White males and 50% of Black males have an arrest record by the time they are 23-years-old, it's not difficult to imagine a country where the minority (read rich people) rule and enjoy our Constitutional freedoms whereas the rest of us (read less than upper middle class people) are tracked through DNA databases (and watch lists) as if we're common criminals. And, yes, that means a disproportionate number of minorities as well as the less than rich will suffer the wrath of the Police States of America.
Hyperbole and scare tactics aside, every Delaware citizen should be concerned about the new proposed DNA collection law. There is no debating DNA analysis is a valuable crime fighting tool. What every Delaware citizen should be concerned about is how the law governing DNA collection is used. A blanket law that simply states "Collect from every convicted violent felon and every accused sex offender" is not good law. At minimum, demand lawmakers to put time limits on how long the DNA sample is kept in a database. Require warrants anytime an investigator wants to access the database and require the warrants to specify which samples will be accessed. Deny familial searches. Require notifications to anyone whose records were accessed and for what reason they were accessed. And provide legal recourse to those whose records were breached or abused.
The questions and concerns aren't about how DNA evidence is used today. The questions and concerns are about how DNA evidence will be used - and abused - tomorrow.
Now for Two Surprises and What You Can Do
I wrote this whole article and got to this point where I need you, the reader, to take action. Do you know what the surprise for me was? All six sponsors and cosponsors of the bill are Republicans. Take that fact for what you want it to be.
Here are the sponsors and cosponsors contact information (phone numbers and email links):
Representative Timothy D. Dukes (sponsor)
Representative Daniel B. Short (co-sponsor)
Senator David L. Wilson (co-sponsor)
Representative Ruth Briggs King (co-sponsor)
Senator Catherine Cloutier (additional sponsor)
Senator Brian Pettyjohn (additional sponsor)
Ok, you got my first surprise that all the sponsors are Republicans; now here come the second surprise. Delaware doesn't make it easy to find out who your state representatives and senators are. The flippant side of me says they don't want you to know because they're doing a lousy job and know it. The professional side of me says I'll let you make the determination of why finding your elected officials online isn't an easy task and let you decide if you want to give them an earful on their poorly designed website.
Anyway, if you're feeling brave and want to send an email to your representatives on House Bill 29, you can find your representatives and senators here. Simply click around on the tabs. They can try to hide from you, but persistence will allow you to find them eventually.
Let the sponsors, co-sponsors, and your state representative and senator know you are very concerned with the potential rights to privacy violations this bill could eventually lead to and potentially every citizen will be bagged, tagged, and tracked in the future. If you think being tagged and tracked is unlikely, take a look at New York Police tactics. Today, they track your car across the country and build a profile on you based on where your car has been. Imagine what profile law enforcement could build on you if they added DNA analysis in the mix. You could unknowingly end up on a government watch list, a watch list potential employers can access.
House Bill 29 might be filled with good intentions, but it is ripe for potential abuses. Privacy rights safeguards need to be built into the law including the need for warrants to collect, access, and store DNA samples, time limits on storage of the samples, and strict guidelines on the DNA use that prevent familial searches and "fishing expeditions" to solve a crime.
We are a country founded on the basic principle that everyone is innocent until proven guilty. House Bill 29 is written on the basic principle that everyone is guilty even if they haven't been convicted yet.
TL;DR folks:
DNA collection is an awesome crime fighting tool...until they come to collect your DNA
For your listening pleasure:
Posted by A Drunk Redneck
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