The majority leader of the Pennsylvania Senate, Dominic Pileggi, just introduced a bill to make major changes in the state’s law enforcement DNA database system. The most significant change is the requirement that individuals who are merely arrested for certain crimes must provide a DNA sample for inclusion in the state database. About half the states now have such laws, although (as noted an earlier posting to this blog) their constitutionality is the subject of continuing litigation. This bill is relatively moderate in its approach to arrestee sampling. There must be a judicial finding of probable cause (or a waiver of the preliminary hearing). The DNA profiles must be removed from the database if there is no conviction. The samples may not be used for kinship searching (a topic of previous postings).
The bill requires the state police to develop and implement procedures for kinship searching. Maryland and the District of Columbia prohibit kinship searching, and California, Colorado, New York, Texas, and Virginia conduct such searches in the absence of explicit statutory authority. Currently there is confusion in Pennsylvania over whether disclosure of near matches to local officials is permissible. The state police contend that “Although familial searching has the potential to be a great investigative tool, implementation at this early stage, without direct legislative approval and a standard national policy, is premature.” Flam (2011). Obviously, the notion that in a federation of states, no state should act before “a standard national policy exists” is somewhat strange. Mimicking the policy adopted by executive action in California, the bill restricts kinship searches to cases in which other investigative methods have failed. Unlike the California policy, however, the bill imposes no artificial floor on the number of autosomal alleles that must match. Instead, it requires administrative rule-making to arrive at more “scientifically valid and reliable” procedures.
A unique provision in the bill states that “No DNA sample or DNA record shall be used for human behavioral genetic research.” This prohibition is superfluous. See Kaye (2006). The bill states that “the tests to be performed on each DNA sample shall be used only for law enforcement identification purposes or to assist in the recovery or identification of human remains from disasters or for other humanitarian identification purposes, including identification of missing persons,” and it defines “Law enforcement identification purposes” as “Assisting in the determination of the identity of an individual whose DNA is contained in a biological sample.” Human behavioral genetic research is not an “identification purpose.”
Whether the state can afford an expansion in the databank is unclear. In the absence of adequate data on the effectiveness of DNA sampling on arrest, a cost-benefit analysis of the proposal is all but impossible. Over ten years ago, the National Commission on the Future of DNA Evidence avoided taking a stand on arrestee sampling on that ground that with large backlogs of crime-scene and offender samples awaiting analysis, adding arrestee samples was premature. The Commission suggested that the issue be readdressed in 2005.
Faye Flam, Colorado D.A. Offers Philadelphia Help in Kensington Strangler Case, Philadelphia Inquirer, Jan. 10, 2011.
David H. Kaye, Behavioral Genetics Research and Criminal DNA Databanks, 69 Law and Contemporary Problems, 259 (2006), reprinted in revised form as Behavioral Genetics Research and Criminal DNA Databases: Laws and Policies, in The Impact of Behavioral Science in Criminal Law 355-387 (N. Faranhy ed., New York: Oxford Univ. Press, 2009).