Testimony of Barry Steinhardt on CODIS before the House Judiciary Subcomitteee on Crime

Testimony of

Barry Steinhardt

Associate Director of the

American Civil Liberties Union

Before the

House Judiciary Committee

Subcommittee on Crime

March 23, 2000

First let me thank Chairman McCollum and Ranking Member Mr. Scott for inviting me to speak today. This is an important issue to the American Civil Liberties Union and we appreciate the opportunity to testify. The ACLU is a nationwide, non-profit organization consisting of nearly 300,000 members dedicated to protecting the principles of freedom and liberty set forth in the Bill of Rights.

These hearings come at a time when DNA is much in the news. Emerging DNA technology holds tremendous potential for the diagnosis and treatment of disease. In the criminal justice arena, it has the potential to both exonerate the innocent and to identify the guilty. Yet, this potential comes with significant risks that highly personal and sensitive information will fall into the wrong hands, leading to a loss of privacy and genetic discrimination.

Today I will discuss our recommendations for addressing the risks to civil rights and civil liberties as we take advantage of the positive potential that this new technology holds.

I will describe a number of concerns about all the bills that are before you, not the least of which is that they mandate the non-consensual collection of genetic information.

My testimony today will also recommend that any bill considered by this Committee include four additional elements:

1. That receipt of federal funds for processing forensic DNA samples and participation in the CODIS program be conditioned on states making DNA testing available to criminal defendants that have claims of innocence and removal of post conviction bars to consideration of this evidence,
2. That as a further condition for the receipt of federal funding and participation in CODIS that the biological samples (blood, saliva, etc.) upon which the identification testing is performed be destroyed within a reasonable period after testing is completed and pending criminal matters are resolved,
3. That the genetic profiles entered into CODIS from the states should be limited to those from persons convicted of serious violent felonies, where biological evidence is relevant,
4. That as a further condition for the receipt of federal funding, as well as participation in CODIS, that the states be prohibited from performing non-consensual genetic testing on accused persons, who have not been convicted, except where a court has granted an order requiring such testing.

Let me start with a point that I hope we can all agree on. Drawing a DNA sample is not the same as taking a fingerprint. Fingerprints are two-dimensional representations of the physical attributes of our fingertips. They are useful only as a form of identification. DNA profiling may be used for identification purposes, but the DNA itself represents far more than a fingerprint. Indeed, it trivializes DNA data banking to call it a genetic fingerprint.

I understand that the CODIS system only contains a limited amount of genetic information compiled for identification purposes. But the amount of personal and private data contained in a DNA specimen makes its seizure extraordinary in both its nature and scope. The DNA samples that are being held by the federal, state and local governments can provide insights into the most personal family relationships and the most intimate workings of the human body, including the likelihood of the occurrence of thousands of genetic conditions and diseases. DNA may reveal private information such as legitimacy at birth, and there are many who will claim that there are genetic markers for aggression, substance addiction, criminal tendencies and sexual orientation.

And because genetic information pertains not only to the individual whose DNA is sampled, but to everyone who shares in that person’s bloodline, potential threats to genetic privacy posed by their collection extend well beyond the millions of people whose samples are currently on file.

It is worth recalling that there is a long unfortunate history of despicable behavior by governments toward people whose genetic composition has been considered “abnormal” under the prevailing societal standards of the day.

In recounting that history and documenting its privacy concerns, the National Research Council Report in DNA Technology in Forensic Sciences said:

“These privacy concerns are far from abstract. The eugenics movement in this country, which resulted in thousands of involuntary sterilizations, the suggested screening of violent men for extra Y chromosomes, the sickle cell screening tests employed to prohibit marriages, and the current privacy concerns over HIV screening, underlie the Panel’s following recommendation: Use of a data bank for other than law enforcement suspect identification purposes should be expressly prohibited and subject to criminal penalties.”

Genetic discrimination by the government is not merely an artifact of the distant past. During the 1970s, the Air Force refused to allow healthy individuals who carried one copy of the sickle-cell gene to engage in flight training, even though two copies of the gene are needed for symptoms of sickle-cell disease to develop. The Lawrence Livermore laboratory only recently settled a case brought by African American employees who were subjected to secret genetic testing for the sickle cell trait.

Genetic discrimination by private industry is becoming increasingly commonplace as well. A 1997 survey conducted by the American Management Association found that six to ten percent of responding employers (well over 6,000 companies) used genetic testing for employment purposes. The Council for Responsible Genetics, a nonprofit advocacy group based in Cambridge, Mass. has documented hundreds of cases in which healthy people have been denied insurance or a job based on genetic “predictions.”

In short, there is a frightening potential for a brave new world where genetic information is routinely collected and its use results in abuse and discrimination.

Now, I am certainly aware that the primary purpose of forensic DNA databases like CODIS is identification and that the profiles are of 13 loci that currently provide no other information. However, we need to bear in mind that the local jurisdictions who are contributing genetic identification profiles to the CODIS data base are all collecting and retaining biological material that contains DNA. That biological material–blood, saliva, etc.– can be subjected to a virtually limitless number of additional genetic tests. To my knowledge not a single jurisdiction destroys the biological material after the testing is completed.

While a DNA data bank for criminal identification purposes may have legitimate uses, I am skeptical that we can hold the line and ward off the temptation to expand its use to non-forensic purposes. Our country has a long history of function creep — of databases, which are created for one discrete purpose and, which despite the initial promises of the their creators, eventually take on new functions and purposes. In the 1930’s, promises were made that the Social Security numbers would only be used as an aid for the new retirement program, but over the past 60 years they have gradually become the universal identifier that their creators claimed they would not be. Similarly, as recent disclosures make clear census records created for general statistical purposes were used during World War II to round up innocent Japanese Americans and to place them in interment camps.

We are already beginning to see that function creep in DNA databases themselves. In a very short time, we have witnessed the ever-widening scope of the target groups from whom law enforcement collects DNA and rapid-fire proposals to expand the populations to new and ever greater numbers of persons. In less than a decade, we have gone from collecting DNA from convicted sex offenders — on the theory that they are likely to be recidivists and that they frequently leave biological evidence — to data banks of all violent offenders; to juvenile offenders in 29 states; to testing of persons who have been arrested, but not convicted of a crime. There have even been proposals, like that made by the Michigan Commission on Genetic Privacy, to permanently preserve blood samples of newborns that have been obtained to detect rare congenital diseases and to store them for law enforcement and research purposes.

I am skeptical because too many state statutes allow evidence, which has been purportedly collected only for identification purposes, to be used for a variety of other purposes. Massachusetts’s law, for example, contains an open-ended authorization for any disclosure that is, or may be, required as a condition of federal funding and allows for the disclosure of information, including personally identifiable information for “advancing other humanitarian purposes.” (MA ST22 ss,12,13 West 1999).

North Dakota law requires DNA records to be made available to “any public official who requires that information in connection with discharge of the official’s official duties”. (N.D.Century Code Sec. 31-13-06).

The State of Mississippi has no statutory restrictions on the use of forensic DNA and leaves it to the Mississippi State Crime Lab to determine any restrictions. (Miss. Code Ann. Sec. 45-33-15).

Nevada’s law simply provides “that samples be used for an analysis to determine the genetic markers of the blood.” There is no definition of the term “genetic markers”, which on its face could include any information that could be derived from DNA and no restrictions on the use or availability of the DNA sample or test results. (Nev.Rev.Stat.S 176.0913)

A host of states generally make the data available to law enforcement agencies without further restriction, thus implicitly allowing genetic tests for physical and mental traits or for predisposition to disease. (See, for example, Arizona Stat s 31-281, Arkansas Code Ann.ss 12-12-1105-1113, California Penal Code s 299.5, Colorado St, s 17-2-201, Delaware Code Ann. Tit. 29 Sec.4713, et.seq.)

Each of the three bills before you today contains exceptions that would allow CODIS to be used for non-forensic purposes – either for a population statistics database, for identification research and protocol development purposes or for quality control purposes. While all of these non-forensic purposes sound innocuous, they will likely be just the first step in making the forensic databases and all of the stored genetic samples available for other purposes.

Over time the temptation to use the stored genetic information and DNA for “the common good” may prove irresistible. Statutory restrictions that exist today can be swept aside tomorrow.

I am skeptical too because even outside the criminal justice system, too many holders of DNA data refuse to destroy or return that data even after the purported purpose has been satisfied.

The Department of Defense, for example has on the order of three million biological samples it has collected from service personnel for the stated purpose of identifying remains or body parts of a soldier killed on duty. But it keeps those samples for information for 50 years — long after the subjects have left the military. And the DOD refuses to promulgate regulations that would assure that no third parties would have access to the records. Isn’t it likely that once the genetic information is collected and banked, pressures will mount to use it for other purposes than the ones for which it was gathered, such as the identification of criminal suspects or medical research?

Like the Department of Defense, the FBI makes no provisions to destroy the samples once they have served their purpose – producing a DNA code of a criminal suspect. None of the bills before the committee provide for destruction of the DNA samples after the testing is completed. While the FBI would like us to believe that the samples will never be used for anything besides catching criminals, the sad truth is that if those samples are retained, at some point, they will be used improperly. In fact each of the three bills before you today would required the test results be expunged for persons who have their conviction overturned, but does not require that the potentially more significant biological samples be destroyed.

Compounding this problem is that there are few laws, and certainly none at the federal level, which comprehensively prohibit genetic discrimination by employers, insurers or medical care providers. More and more DNA is being collected, and with the advances in genetic research that make that DNA more and more valuable, instances of discrimination and misuse will grow as well. Destroying the samples will go a long way to protecting the privacy of Americans.

The scientific community has now settled on a uniform set of DNA locations to be tested and a common testing methodology. This scientific consensus has been incorporated into requirements for the CODIS system and there is simply no longer any justification for retaining the biological samples after they have been tested and the results have been entered into CODIS.

Besides destroying the samples, the ACLU also recommends that restrictions be placed on the breadth of the information that is stored in CODIS. The ACLU is very troubled by the prospect of arrestee testing. The State Louisiana already allows DNA testing to be done on persons who have been arrested for certain crimes, but who have never had there day in Court. Many law enforcement officials from around the country are making similar calls.

Adding samples from arrestees to CODIS means that persons who may not have ever been convicted or even prosecuted for a crime – innocent Americans, will have their DNA permanently entered into a massive federal database. This is unacceptable.

A study released by the California State Assembly’s Commission on the Status of African American Males in the early 1990’s revealed that 64 percent of the drug arrests of whites and 81 percent of Latinos were not sustainable, and that an astonishing 92 percent of the black men arrested by police on drug charges were subsequently released for lack of evidence or inadmissible evidence. Indeed, there is a disturbing element of racial disparity that runs throughout our criminal justice system that can only be compounded by the creation of databases of persons arrested but not convicted of crimes.

Now I make no secret of the ACLU’s opposition to DNA data banking, even for convicted felons. We have argued and will continue to argue that these are intrusive, unreasonable searches made without the individualized suspicion required by the Fourth Amendment and analogous provisions of state constitutions. But, even if you accept the rulings that DNA data banking for convicted felons is permissible, either because a special need is present where persons have been convicted of crimes with high recidivism rates and the presence of biological evidence like sexual assaults, or that convicted felons have a diminished expectation of privacy, neither of those circumstances apply to persons who have simply been arrested. CODIS should not house the genetic profiles of persons who have never been convicted of a crime.

To do so is to equate arrest with guilt and to empower police officers, rather than judges and juries, with the power to force persons to provide the state with evidence that harbors many of their most intimate secrets and those of their blood relatives. Under the current circumstances of mistrust, that is an especially chilling notion for a New Yorker. While Congress does not have the authority to change state laws prohibiting the testing of persons arrested for crimes, it does have the authority, and the responsibility, to protect the privacy of Americans by placing restrictions on the type of data that can be entered into CODIS. CODIS should only be used for crimes of violence, where biological evidence is likely to be present and the Congress should specifically prohibit the expenditure of Federal funds to assist states, which engage in pre-trial DNA data banking.

Lastly, any bill should be even handed and fair in the uses which DNA can be made of DNA evidence. The proponents of DNA data banking argue that it can be used both identify the guilty and to exonerate the innocent. But too often procedural bars prevent the actually innocent from using DNA to establish their innocence.

Congress must require that states make DNA testing and records available to persons convicted of crimes who did not have access to DNA evidence at the time of their trial. If we are serious about protecting the innocent as well as punishing the guilty, it is only fair that criminal defendants be given the opportunity to use DNA technology that was not previously available. The National Commission on the Future of DNA evidence has proposed a uniform statute concerning the post-conviction use of DNA testing. Additionally, Senator Leahy has introduced a bill that would require states to make testing available. We urge the Committee to condition funding to the states by requiring them to provide the protections outlined in these proposals.

Now, let me specifically discuss the three bills that are pending before the Committee. The ACLU cannot support any legislation which mandates or encourages non-consensual DNA testing. However, if the Committee intends to proceed with legislation, we recommend that you make H.R. 3087, the bill sponsored by Mr. Weiner and others, your starting point.

This bill would offer federal funding to states to process the backlog of DNA samples and require that each laboratory performing DNA analyses satisfy quality assurance standards. But it does not expand the current reach of CODIS.

If you do act on H.R.3087, we would urge the removal of subsection (2)(D), which would allow DNA data to be used for non-forensic purposes.

While two other two bills would similarly provide federal funding to address the DNA backlog, they would also expand the scope of CODIS. Both H.R.2810 and H.R.3375 would expand DNA data banking to include federal and military offenders, as well as persons convicted of offenses in the District of Columbia. H.R. 3375 would also allow the inclusion of the genetic records of juveniles in CODIS and would encourage the states to collect those records. The ACLU opposes this expansion.

Having stated our opposition to H.R. 2810 and 3375, I will note that H.R. 2810, the Chabot/Kennedy bill does contain provisions which are more protective of privacy than H.R. 3375. There are a number of provisions that from this bill that we support:

H.R. 2810 has a smaller number of “qualifying offenses” — those crimes for which DNA samples will be collected. H.R. 3375 defines a qualifying offense as any crime of violence including misdemeanor offenses whereas 2810 is limited to serious violent felonies and burglaries. In our opinion, because CODIS will be a permanent government repository of genetic material and records, only the most serious offenses should be included within it.

H.R. 2810 provides for “automatic” removal of the DNA record if a conviction is reversed or vitiated. H.R. 3375 does not make the removal requirement automatic. Unless the removal requirement is automatic, the FBI will put the onus on the individual to come forward and request that her record be expunged. The automatic removal provision will help to ensure that innocent people’s DNA samples and records are not part of the permanent database.

H.R. 2810 does not include samples from juveniles adjudicated delinquent, H.R. 3375 does. Juvenile adjudications are not criminal convictions – they should not be included within a permanent database of criminal convictions. It is astonishing to think that a youthful offense could result in a child’s DNA becoming part of a permanent federal database.

In summary, we recommend the following measures.

• There should be a procedure established for destroying the physical sample used in the DNA testing. It is one thing for the government to permanently store a genetic fingerprint; it is altogether different for the government to permanently retain the biological samples, which can be used for future genetic testing.
  
• Only persons convicted of serious violent felonies should have their DNA entered into CODIS. While we understand the federal government’s desire to help the states address their DNA backlogs, the government should only include the test results from persons who have been convicted of serious violent felonies and where biological evidence could be relevant. There is no reason for CODIS to contain DNA profiles from persons who were never convicted of a crime or who were convicted of non-violent crimes. No Federal funds should be available to states which engage in arrestee testing.
  
• States should provide criminal defendants with access to DNA testing to establish their innocence. While the government wants to use CODIS as a sword to prosecute criminals, it must also make it a shield to protect the innocent. Congress must require that the States make DNA testing available post conviction to those who could not avail themselves of DNA technology at the time of trial.

We would be happy to work with the committee to help incorporate these recommendations. Once again, thank you for seeking our input into this process.