JURIST Guest Columnist Brandon Garrett of the University of Virginia School of Law says that enlarging DNA databanks with samples taken from all individuals arrested for felonies may increase the risk of wrongful convictions, while diverting attention away from more fruitful routes for improving the criminal justice system…

In a decision on February 23, the US Court of Appeals for the Ninth Circuit, in Haskell v. Harris, found that an expansion of the California DNA databank to include DNA taken not just from convicted felons, but from all people arrested for felonies, was constitutional. California voters approved this expansion in 2004 through Proposition 69 [PDF], the “DNA Fingerprint, Unsolved Crime and Innocence Protection Act.” All states require DNA collection from convicts, and over 20 states and the federal government, have also expanded to require DNA from some or all arrestees. DNA databanks are a powerful tool for solving crimes, convicting the guilty and helping to free the innocent. I am no opponent of DNA databanks. However, bigger may not be better where DNA databanks are concerned. The Ninth Circuit panel’s wooden analysis did not engage with the many costs of wanton database expansion. To solve crimes and protect the innocent, it would be far better to dedicate resources to improve other types of evidence, fix quality control at crime labs and do more DNA tests in actual criminal cases.

The question for the Ninth Circuit was whether this DNA collection law required police to conduct an “unreasonable search and seizure” under the Fourth Amendment. Few courts have addressed arrestee DNA collection. The majority opinion by Judge Milan Smith conducted a deferential “totality of the circumstances” analysis and emphasized how people arrested for felonies have reduced privacy rights; they can be booked and fingerprinted, for example.

The court then cited law enforcement interests relevant to the “totality of the circumstances” analysis. The hope is that an arrestee’s DNA might incriminate them in the future for some crime yet to be committed. But are protesters arrested at a “peace demonstration,” like several plaintiffs in the case, likely to commit violent crimes solvable using DNA? Few crimes involve testable DNA. Moreover, there is the disturbing possibility that their DNA might be used to incriminate not just them, but family members, using familial searches. DNA contains far more information than fingerprints, but the court ruled that taking DNA was no different. The Ninth Circuit is the first federal court of appeals to address all-arrestee DNA collection, and only a handful of other courts have addressed it so far. More courts have ruled on taking DNA from convicted felons — which is quite different. After all, most people arrested for crimes are never convicted. For example, in California one third of those arrested for felonies are never convicted; many are never charged.

The court’s opinion was at its weakest when it tried to claim a moral high ground, strongly emphasizing how DNA databanks help in “exonerating the innocent.” I recently completed a book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, studying the cases of the first 250 people exonerated by DNA evidence. I was quite surprised to see the majority cite the case of exoneree David Allen Jones as “a powerful illustration of the benefits of arrestee DNA sampling.” His case provides nothing of the sort.

In 45 percent of the 250 DNA exonerations that I studied, the post-conviction DNA tests also located the actual culprit. Some of those people had committed a series of additional crimes while the innocent person languished in prison. DNA databanks helped to free the innocent, but there were other, more basic causes of those wrongful convictions. Take the case of David Allen Jones. Jones, a “mentally disabled janitor,” was convicted in 1995 of several murders in Los Angeles. The jury convicted him because of a flawed and contaminated confession. A complete recording of his entire interrogation would have made clear that police were trying to tell him what to say during his interrogation. Police asked him leading questions, corrected his answers, and showed him photos of the crime scenes, prompting him, “[y]ou remember yesterday we showed you that picture” during the few recorded parts of his interrogation. They also took him to the crime scenes, presumably to encourage greater detail in his confession statements.

In fact, forensics were done at the time. Straightforward blood typing had excluded David Allen Jones, and hairs found at the scenes did not match him either — but he was convicted anyway, despite his manifest mental limitations and susceptibility to aggressive interrogation tactics. The forensics not matching him and the manifest problems with his confession should have been grounds enough for the police to move on to other suspects — like Chester Turner, the man who DNA evidence later showed was the murderer. As Judge William Fletcher noted in his thoughtful dissent in Haskell v. Harris, “Turner had been convicted of a felony before 1995,” when Jones was convicted. Collecting DNA from convicts like Turner would have been enough. Adopting protections during police interrogations could far better prevent false confessions like Jones’s in the more numerous cases with no DNA to test (in 2007, then-governor Arnold Schwarzenegger vetoed legislation to ensure that police videotape interrogations).

A DNA databank is not strengthened, but becomes diluted, as more marginal criminals — or even innocent people — are included in it. There are more opportunities for error; the larger the database gets, the greater the chances are of partial matches with innocent people. The statute does not make it easy to get one’s DNA expunged from the databank. In addition, the Ninth Circuit never mentioned the racial impact of taking DNA from all arrestees; already, African-Americans are 13 percent of the population but make up about 40 percent of those whose DNA is included in the nationwide set of DNA databanks.

Crime labs have been beset with quality control scandals. They have become swamped with en masse processing of DNA for databank entries. They may then face longer delays doing DNA tests where it matters — where there is a live criminal investigation and DNA is urgently needed to locate the culprit. We should prioritize using DNA to solve real crimes and to correct mistakes in actual criminal cases. We should improve the quality of our databanks by making sure serious felons really are all included and by improving quality control at crime labs. We should fund DNA testing in post-conviction cases; our pro bono Innocence Project has long waiting lists. We should preserve crime scene evidence; only half of the states require the saving of evidence that can be used to free innocent convicts and locate the guilty. If other courts rule the same way on these DNA databank expansions, it may be up to the voters to decide. Several state legislatures have recently expressed doubts that major expansions to take DNA from arrestees are justified, fearing huge backlogs and paltry crime control benefits. They may be right. There are more direct ways to use DNA to solve crimes and free the innocent.

Brandon Garrett is the Roy L. and Rosamond Woodruff Morgan Professor of Law at the University of Virginia School of Law. His recent scholarship focuses on organizational prosecutions and the role of DNA evidence in exonerating wrongfully convicted individuals. Prior to his academic career, Garrett clerked for Judge Pierre Leval of the US Court of Appeals for the Second Circuit and was an associate at Neufeld, Scheck & Brustin LLP.

Suggested citation: Brandon Garrett, Expanding DNA Databases is Problematic, JURIST – Forum, Feb. 29, 2012, http://jurist.org/forum/2012/02/brandon-garrett-dna.php.