The Fresh Ideas Series: This series intends to show what colleges, universities, and professionals are teaching and discussing instead of antiquated Tough-on-Crime policies that do not work. This was a paper I wrote for my Critical Issues in Criminal Justice Class in 2021 at Purdue University Global. The sentiment and my beliefs remain the same. The only things changed are the title and headings.
Why is DNA Retention Important?
DNA is a quintessential, for lack of a better term, gamechanger in criminal justice. It has the power to solve both wrongful convictions as well as decades-old cold cases. DNA is quickly becoming the center of mass in unraveling the allegedly unsolvable, requiring preparation on behalf of the criminal justice system for this significant leap in technology1. Several major cold cases, such as the Golden State Killer, were solved in recent years through DNA, bringing elusive killers to justice thanks to significant breakthroughs in the technology as well as the availability of websites such as GEDmatch and direct-to-consumer DNA testing kits2. As a result, DNA collection and retention policies are necessary more than ever and will change the landscape of criminal justice. However, policies must be carefully crafted and contain specific restrictions to prevent infringement of constitutional due process rights and ensure DNA information is properly processed and digitally stored.
Potential Negative Issue: Infringement of Fourth Amendment Rights
Although the collection of DNA from arrestees has been deemed constitutional by the US Supreme court, concerns on collection and retention still exist3. DNA is typically viewed by the courts in a comparable way to fingerprinting, finding it not only acceptable but also constitutional as decided in United States v. Pool4. This stance, however, is problematic, as how law enforcement collects DNA samples and the circumstances around an arrest matter greatly. In the US Supreme Court case Maryland v. King, Alonzo Jay King Jr. alleged his fourth amendment rights were infringed upon when law enforcement adhered to a Maryland law requiring DNA collection of arrestees5. The DNA sample eventually matched to an unsolved rape case, placing additional charges on King. The Supreme Court ruled against King finding DNA as a tool for law enforcement but failed to set parameters for unlawful arrests6. In Justice Scalia’s dissent, he cites concerns regarding the government placing citizens’ DNA into a database indefinitely, whether the arrest was legal or illegal in nature. This loophole requires attention, ensuring that innocent parties do not have their fourth amendment rights infringed upon.
Potential Negative Issue: Privacy of Users on Genetic Genealogy Websites
DNA genealogy websites are incredibly popular, offering users the chance to look into their past and answer the question, “where did I come from?” These sites are increasingly of interest and value to law enforcement as well, with dozens of unsolved cases on the shelves with no leads matching DNA7. Joseph DeAngelo, known as the Golden State Killer, was tracked down by police through genetic genealogy website GEDmatch. GEDmatch is the only site that allows law enforcement to actively utilize its database in such a manner, with Ancestry.com and 23 and Me retaining tight grips on user data unless court-ordered to release information to law enforcement authorities8. GEDmatch now offers an opt-in policy to ensure that only users who consent to their DNA being used for genetic genealogy purposes could have their information released to law enforcement.
However, the third-party doctrine, as established in Katz v. United States9, states that individuals willingly submitting information to a third-party, such as a direct-to-consumer DNA database, assume risk in that their information could be handed over to the government, in spite of any security measures in terms of services for these websites. However, the Department of Justice issued an interim policy, requiring police to identify themselves when they upload data in hopes of locating a match or the suspect’s family, rather than remain anonymous10. Obviously, this policy is problematic, relying solely on officer accountability.
Potential Positive Issue: Resolution of Cold Cases
As mentioned above, the Golden State Killer was apprehended as a result of genetic genealogy and the open-source genealogy website, GEDmatch. The openness of the site and the willingness of users directly aided in identifying possible relatives all without a court order. Joseph DeAngelo was a heinous rapist and murder, responsible for twelve deaths and fifty rapes11. For several cases, DeAngelo’s DNA was retained until they could positively identify him and as he was never a suspect, his DNA was not on file in police databases or the FBI Combined DNA Index System (CODIS), leading investigators to get creative through GEDmatch. This case, along with Maryland v. King, demonstrate significant value in law enforcement obtaining and retaining a large database of DNA samples to compare against incoming or previously convicted offenders. This important concept is not new; CODIS came as a result of the DNA Identification Act, intended as a nationwide database to store samples recovered from crime scenes, convicted offenders, unidentified remains, as well as DNA voluntarily provided by relatives of missing individuals12. The only difference is that DNA technology has advanced significantly, putting DNA kits in the hands of consumers, even allowing them to contribute to society by aiding in solving a crime. By allowing users to opt-in, aforementioned privacy concerns can be mitigated entirely.
Potential Positive Issue: Deterring Crime and Exonerating the Innocent
A strong benefit of retention of DNA is that it actively contributes to exoneration for the wrongfully convicted. The Innocence Project has seen great success in exonerating falsely convicted people through post-conviction DNA testing, including individuals who were sitting on death row13, 14. However, if DNA evidence from a crime scene cannot be located or somehow was thrown out, it effectively prevents exoneration. This results in unfairness for the wrongfully convicted but also diminishes the chance of justice for victims and their loved ones as well.
DNA databases could resolve retention issues for DNA evidence stemming from crime scenes as well as lawful arrests. Year after year, rape kits unfortunately sit on shelves, failing to be tested in a timely manner, acting as stationary evidence but could solve multiple crimes and catch serial killers or rapists. Retaining the DNA from lawful arrests in a database, rather than leaving it in a kit, ensures that in the event a rape kit has not yet been processed, the potential match could be inside the database, ready for the match. Processing DNA evidence in an expeditious matter would also ensure that evidence does not deteriorate or become lost. Retaining the information in a database also prevents the problem of a DNA sample being finite, such as the case of the Golden State Killer, where testing the evidence multiple times requires using more and more of a single available sample, running the risk of depletion. Storing this processed DNA in a database ensures that the information is safe, may hold the key to solving decades old crimes, and gives victims and their families a fair chance at seeing an attacker convicted for their crimes, as well as a chance to heal. As law enforcement agencies across the United States are responsible for storing unprocessed evidence, police department evidence rooms could be freed up if DNA was processed as high priority, also giving victims and their families peace of mind that the sample is safe and available for others to compare against.
In Conclusion
Though privacy and Fourth Amendment rights exist when it comes to DNA Retention, it is up to departments to develop strong and fair policies. Proper DNA storage, processing, and retention also require additional funding, should departments make the commitment to making DNA testing a central and important strategy in solving crimes or exonerating wrongly convicted individuals. DNA retention is a powerful and important tool in the law enforcement tool kit and with the right policies, law enforcement can put the public’s mind at ease in its retention.
Credibility of Sources
All journal reference materials for this paper were obtained from the Purdue University Global library to include both peer and non-peer reviewed sources. The Innocence Project was cited within one journal source. Two sources, a Rolling Stone article and book by Michelle McNamara, were located through previous research projects and found to be reliable and factual in nature.
References
1 Burnett, C. G. (2010). If only: Best practices for evidence retention in the wake of the DNA revolution. South Texas Law Review, 52(3), 335–358.
2 Dery, G. M., III. (2019). Can a distant relative allow the government access to your DNA: The fourth amendment implications of law enforcement’s genealogical search for the golden state killer and other genetic genealogy investigations. Hastings Science and Technology Law Journal, 10(2), 103–146.
3 Deray, E. S. (2011). The double-helix double-edged sword: Comparing DNA retention policies of the United States and the United Kingdom. Vanderbilt Journal of Transnational Law, 44(3), 745–776.
4 United States v. Pool, 645 F. Supp. 2d 903, 906 (E.D. Cal. 2009).
5 Maryland v. King, 569 U.S. 435 (2013).
6 Logan, W. A. (2015). Government retention and use of unlawfully secured DNA evidence. Texas Tech Law Review, 48(1), 269–286.
7 Hazel, J. W., & Slobogin, C. (2021). “A world of difference”? Law enforcement, genetic data, and the fourth amendment. Duke Law Journal, 70(4), 705–774.
8 Ehrlich, B. (2020, January 14). True crime podcast leads to arrest in 40-year-old cold case. Rolling Stone. https://www.rollingstone.com/culture/culture-news/murder-squad-arrest-james-clanton-helene-pruszynski-colorado-murder-937098/.
9 Katz v. United States, 389 U.S. 347 (1967).
10 United States Department of Justice (2020, November 19). Department of Justice Announces Interim Policy on Emerging Method to Generate Leads for Unsolved Violent Crimes. https://www.justice.gov/opa/pr/department-justice-announces-interim-policy-emerging-method-generate-leads-unsolved-violent.
11 McNamara, M. (2019). I’ll be gone in the dark: one woman’s obsessive search for the Golden State Killer. Harper Perennial.
12 Kazemian, L., Pease, K., & Farrington, D. P. (2011).DNA retention policies: The potential contribution of criminal career research. European Journal of Criminology, 8(1), 48-64.
13 Strom, K. J., Hickman, M. J., & Ropero-Miller, J. D. (2011). Evidence retention policies in U.S. law enforcement agencies: Implications for unsolved cases and postconviction DNA testing. Journal of Contemporary Criminal Justice, 27(2), 133–148.
14 Explore the numbers: Innocence project’s cases and impact. Innocence Project. (2021, April 27). https://innocenceproject.org/exonerations-data/.
