The Jersey City Independent "

Any person arrested on suspicion he or she committed a violent crime in New Jersey would be required to provide a sample of their DNA to the police, under a proposal currently being considered in Trenton. Under the bill, which is being sponsored by three local legislators, refusal would be considered a felony punishable by up to 18 months of incarceration.

The legislation passed the state Senate last month with a near unanimous vote. It was sponsored by Sen. Nick Sacco of North Bergen and co-sponsored by Sen. Brian Stack of Union City. If it passes the Assembly, where it is sponsored by Jersey City Assemblywoman Joan Quigley, and is signed into law by Gov. Chris Christie, New Jersey will become the 24th state to collect DNA samples prior to conviction.

Taking DNA from arrestees essentially begins the penalty for criminal behavior at the point of accusation, not conviction. Though the legislation contains a provision allowing people who are eventually exonerated, or who never face prosecution because the charges against them are dropped, to erase their DNA from the database it was submitted to, some fear this is not enough protection for the innocent.

“We do have a presumption of innocence in this country,” says Sen. Nia Gill, who represents parts of Essex County. She and Jersey City’s Sen. Sandra Cunningham cast the only two ‘no’ votes when the measure passed the Senate. Gill opposes it because it calls for DNA to be collected from people accused — not convicted — of crimes, and from juveniles. Neither group is included in the state’s current DNA collection law, passed in 1994, which Gill supports.

The legislation leaves too many questions unanswered, Gill says. She is concerned that DNA information collected by law enforcement might be used for commercial purposes without the consent of the person the sample was taken from. And it is too broad, she says, calling the bill “very Orwellian.”

If the bill passes the Assembly in its current form, DNA will be collected not only from people accused of violent crimes such as murder and manslaughter, but also from those arrested for assault in the second degree.

“That would even cover bar fights,” Gill points out. “Just on that suspicion, you would have to give up your DNA.”

In a statement released when the bill passed the Senate, Sacco said the bill was an “effort to bring wanted criminals to justice.” But the two senators who cast votes against the legislation question whether it will accomplish that goal.

Both say they were given no evidence proving that the expanded DNA database will enhance law enforcement while the bill was being considered.

“I haven’t received any information that says it will,” Cunningham says.

The reason may be that none exists.

“It seems like a good thing to expand databases, but there is no evidence that expansion will increase crime fighting potential,” Sara Huston Katsanis says. “There is only anecdotal evidence.”

As a genetic policy researcher at the Center for Genome Ethics, Law & Policy at Duke University, Katsanis specializes in genetic testing and law enforcement. Beginning a few years ago, she says, it became en vogue for states to seek the genetic material of people accused of crimes so that DNA databases could be expanded.

Twenty-three states already have legislation similar to the bill being considered in New Jersey, and 17 more — including the Garden State — are currently considering measures that call for taking DNA samples from arrestees. On the federal level, the government began taking DNA samples from arrestees and immigration detainees in 2008.

Since this expansion began, there has been no comprehensive study of whether these new laws prevent or help solve crime in the U.S., but one conducted in England was published in 2006.

The UK began collecting DNA from all arrestees in 2004, and from people convicted of crimes in 2000. One year after their policy expanded to include arrestees, the UK already had the largest DNA database per capita in the world. But when the efficacy of the DNA collection program was tested by Carole McCartney, a postdoctoral research fellow at the University of Leeds, the results were less than inspiring.

“DNA evidence remains marginal in terms of assisting with overall criminal detections,” McCartney found. “Experts now suggest that the massive National DNA Database expansion has not resulted in the improvement in detection rates originally anticipated.”

The paper, “The DNA Expansion Programme and Criminal Investigation,” even raised concerns that increased use and reliance on DNA might hinder police work. The presence of DNA evidence, the paper says, can give detectives “tunnel vision” that lowers the chances that a proper investigation will be conducted.

So if there is little evidence proving DNA database expansions are effective, then why are the laws spreading to more states each year?

“[It's] the environment we live in — we seem to live in fear,” Cunningham says, her sentiment echoed by Gill.

“If you whip up enough fear in people it makes it a lot easier to march on their constitutional rights,” she says.

But Katsanis sees something more cynical than fear-mongering in the trend. She mentions that in some cases these new laws are the product of lobbying by companies that sell equipment and chemicals used in DNA labs.

“Laboratories benefit from getting funding for processing increased samples, legislators seem tough on crime, and lab suppliers benefit greatly,” she says.

In the same way that the efficacy of expanding DNA databases is as yet unknown, so too is the legality.

Courts have upheld DNA database laws that require people convicted of crimes to provide samples on the grounds that felony convicts have fewer privacy rights. But the legality of laws like the one pending in the Assembly, that require arrestees to provide DNA and do not include provisions mandating automatic deletion of the sample from the database if the person is exonerated, have not been fully tested in the courts.

One similar law, passed by voters in California in 2004, has been challenged in court by the ACLU of Northern California (ACLU-NC). So far, the lawsuit, Haskell v. Brown, has not fared well. A federal district court denied a request for preliminary judgment late last year, and the Ninth Circuit Court of Appeals just heard the ACLU-NC’s appeal to that denial earlier this month. The court’s ruling will likely be an indication of how other courts will view similar cases in the future.

The proposed New Jersey legislation contains boilerplate language to address privacy concerns.

“The minimal intrusion on an individual’s privacy interest resulting from a DNA test is justified by the compelling government interests advanced by DNA analysis,” it reads. But just as the legality of this and similar laws has not been fully tested, the privacy implications are not well understood.

Unlike fingerprints, which only provide information about a person’s identity, DNA contains far, far more data. Information such as a person’s genetic propensity for some diseases, and most troublesomely, information about people they are related to by blood. When DNA from a crime scene is plugged into a large DNA database, it is possible that the database will provide partial or familial matches, meaning that the privacy of people related to arrestees is implicated.

The law as passed by the Senate is unconstitutional and immoral, according to Deborah Jacobs, executive director of the American Civil Liberties Union of New Jersey (ACLU-NJ), which is closely eyeing the bill’s progress to decide whether or not to challenge it in court. If the current proposal becomes law, she says, DNA samples will be taken from innocent people, and their entire blood lines will be implicated in the process.

“It is antithetical to the founding American value of innocent until proven guilty,” she says.

Photo: Steve Taylor/Photodisc/Getty Images

Like what you've read here? Please consider making a donation or becoming a sustaining member. As a grassroots news organization, we rely on community support -- as well as paid advertising -- to survive.