Back in the day, when I was toiling in the fertile fields of criminal law, putting away bad guys using conventional means, a new technology came on the scene. Science revealed that no human being had a genetic makeup exactly like that of any other person, and that DNA could be used to differentiate between individuals to the exclusion of all others.
Since criminals frequently left a DNA marker at the scene of a crime or on their victim, the potential for good was enormous.
There is no question that DNA technology, as a means of identifying perpetrators of crime, is a huge step forward, bigger even than fingerprints a century ago.
Denver, through District Attorney Mitch Morrissey, is a leader in the field. But DNA technology has not reached its full potential. There are limitations on what can be done.
Imagine that you are a detective in a Colorado city. A woman has been brutally raped and murdered. You have no clues except one. The attacker left a DNA sample. The coroner was able to retrieve some semen with a vaginal swab, and some skin cells from under her fingernails. But when the crime lab ran the DNA against all known databases, it came back with nothing.
This is not really surprising, because our victim’s assailant is not likely to be in CODIS, the FBI’s national compilation of DNA databases, or any other DNA database.
In December 2008, CODIS contained fewer than 7 million profiles, about 2 percent of the population. The original purpose of CODIS was to keep track of sex offenders, but it has expanded to contain DNA profiles of many more violent criminals. Presently, 11 states (not including Colorado) are obtaining DNA samples from all persons arrested for felonies.
Now, pretend that the United States has a universal DNA database, and the number of Americans with a profile has jumped to 100 percent. This time, when the crime lab runs the latent DNA from our victim, you get a hit. Say the profile belongs to a man in Fort Collins. Based on the DNA hit, you get a search warrant for his house and car, and the search turns up some items of clothing with our victim’s blood on them.
A universal database was considered in the United Kingdom, until a court recently ruled that keeping a DNA profile of non-criminals violated the right to privacy. But the advantages are many, and include:
• Solving many crimes that cannot be solved now, and possibly protecting potential victims of serial murderers and rapists.
• Facilitating the exoneration of innocent persons accused of crimes they did not commit.
• Allowing the swift and sure identification of victims of a mass tragedy such as a plane crash or a 9/11- type incident.
• Facilitating medical research that might lead to a cure for all sorts of human maladies.
There is, however, a huge downside. Many see DNA as the ultimate means of government identification and tracking of citizens. That dredges up all sorts of “Big Brother” fears. Another concern is that as medical science discovers more genetic markers for various diseases, insurance companies, for example, could gain access to the database and use it as a means to deny health and life insurance to those who might be prone to heart disease or cancer.
I sense that eventually a universal database will come; it seems as inevitable as the Internet. It may be that someday every child will have a DNA sample taken at birth and entered into a national database.
If that happens, it will be up to us to make certain that it is done in a way that privacy is protected and abuse, from either the government or the private sector, cannot occur.
Richard Stacy (usawyo@gmail.com) is a retired former federal prosecutor and a self-described “general curmudgeon.”
