By Ken Wallentine, Chief of Law Enforcement, Utah Attorney General’s Office, and Adjunct Professor of Law, Brigham Young University
atie Sepich was abducted, raped, and fatally strangled, then her body was set on fire and hidden in a town garbage dump on August 31, 2003. A minuscule amount of tissue recovered from Katie’s fingernails provided a DNA sample, and the DNA profile was uploaded to CODIS.1 Detectives worked tirelessly for over three years hunting Katie’s killer, expending hundreds of thousands of dollars in investigative resources. Katie’s parents, Dave and Jayann Sepich, had great hope that the precious DNA clue would bring Katie’s killer to justice. They reasoned that police officers collected DNA daily from new arrestees and a comparison would yield a critical clue.
When Dave and Jayann Sepich learned that DNA samples were not collected until conviction, they proposed “Katie’s Law,” legislation in New Mexico that would require DNA collection upon arrest for most felonies. The bill became law in New Mexico in January 2007.
Just days before Katie’s Law took effect in New Mexico, a CODIS match identified Gabriel Avila as Katie’s killer. Avila had been arrested on other crimes within a few months of raping, torturing, and killing Katie Sepich. He was ultimately convicted of other crimes and a DNA sample was taken upon conviction. Avila pled guilty to raping and murdering Katie Sepich, and he is now serving a term of 69 years in a New Mexico state prison.
If a DNA sample had been taken when Avila was arrested in 2003, he would have been quickly identified as Katie’s killer. The Sepichs would not have suffered years of uncertainty, and dedicated detectives who investigated her murder would have saved hundreds of hours and many thousands of dollars. Armed with a firsthand witness of the power of DNA testing, Dave and Jayann Sepich founded DNA Saves,2 an organization committed to the passage of statutes requiring DNA collection upon arrest.
Collection of DNA upon arrest is a growing movement across the nation, and pressure is mounting for legislation in several states. Twenty-one states now have laws requiring DNA collection upon arrest for certain crimes.3 Proponents argue that DNA collection upon arrest will save lives, prevent violent crime by recidivists, save costly investigative resources, improve identification procedures, reduce misidentification, reduce convictions based on false confessions, and clear numerous cold cases. Others question the cost and funding source for broadened collection and testing protocols, and point to the inefficient testing scheme and the hundreds of thousands of samples waiting to be tested.4 The American Civil Liberties Union and others cite fears of genetic discrimination as DNA identification databases are expanded.5 Police administrators are often thrust into the debate over whether DNA should be collected upon arrest. This column provides an explanation of the essential arguments in the debate.
Does the Fourth Amendment Permit DNA Collection Upon Arrest?
Federal law allows DNA collection upon arrest for any federal felony and certain misdemeanors.6 The federal provision was recently challenged for the first time in United States v. Pool,7 where a defendant arrested for possession of child pornography protested providing a DNA sample as a condition of his pre-trial release. Pool claimed that the DNA Fingerprinting Act of 20058 violated the Fourth Amendment. The federal court ruled that collection of a DNA sample solely for identification purposes and following a probable cause finding by either a grand jury or judge does not violate the Constitution. The court found that the DNA testing requirement on pre-trial detainees or releasees seems clearly warranted, if not compelling. An arrestee’s identity obviously becomes a matter of legitimate state interest.9 The court also noted that the expansive DNA testing will help to exculpate individuals who are serving sentences of imprisonment for crimes they did not commit and will help to eliminate individuals from suspect lists when crimes occur.10
Courts have generally ruled in favor of state statutes requiring collection of DNA upon arrest. The Virginia Supreme Court is the only state high court to consider the issue thus far. In Anderson v. Commonwealth, the Virginia Supreme Court held that taking a DNA sample for identification purposes is analogous to taking a defendant’s fingerprints upon arrest.11 The Courts of Appeal for the Second and Third Circuits have followed the same fingerprint analogy. The collection and maintenance of DNA information, while effected through relatively more intrusive procedures such as blood draws or buccal cheek swabs, in the courts’ view plays the same role as fingerprinting.12 “The governmental justification for [DNA] identification . . . relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods.”13
The Power of Prevention and Investigative Benefits
Numerous studies show that collection of DNA upon arrest can prevent homicides, rapes, and other violent crimes. Proponents argue that DNA sampling upon arrest catches repeat offenders before they continue a protracted pattern of violent crime. The Denver, Colorado, District Attorney’s Office studied the criminal history of five defendants and found that DNA collection upon arrest would have prevented the following crimes during the study period:
- 3 Murders
- 18 Sexual Assaults
- 1 Attempted Sexual Assault
- 7 Kidnappings
- 4 Robberies
- 3 Felony Assaults
- 11 Home Invasions14
A Chicago, Illinois, study completed in support of an initiative to pass state legislation authorizing DNA collection upon arrest, showed similarly remarkable results. Tracking a sample of eight repeat offenders over a 12-year period showed that 22 murders, 30 rapes, numerous attempted rapes, and an aggravated kidnapping could have been prevented.15
Virginia was an early leader in expansive use of DNA as an investigative tool in a breadth of crimes. DNA collection upon arrest has been the law in Virginia since 2003. Virginia has had over 5,500 hits on DNA from its state database of nearly 300,000 arrestee/convict DNA profiles. Each year, more and more crimes are solved by finding a match in the Virginia DNA database.16
Great Britain’s National DNA Database states the goal of obtaining a DNA sample for the entire active criminal population. There is a 40 percent probability of identifying a perpetrator from DNA collected at a crime scene in Great Britain. British criminologists assert that for each sentence resulting from a DNA-supported conviction, 7.8 additional crimes are prevented.17
The impact of DNA on solving cold cases is increasing exponentially. The National Institute of Justice is funding several pilot projects to solve cold cases. Some states have initiated comprehensive investigative assistance programs to facilitate DNA collection and analysis, supported by specialized investigative assistance, in cold cases. For example, the Utah Technical Assistance Program Cold Case Initiative (UTAP Cold Case) provides funding, investigative, technical, and forensic consulting in a state where 90 percent of the law enforcement agencies are staffed by 15 or fewer officers.18 Recognizing the potential of DNA in solving cold cases, a number of prosecutors use John Doe arrest warrants issued with a DNA profile as the identifier. Some states have lifted the statute of limitations for prosecution of certain sex offenses where DNA evidence has been collected and may result in future identification of the suspect.19
DNA collected upon arrest has the potential to save police agencies countless dollars and staff hours in unnecessary investigation to identify perpetrators. In the case of Katie Sepich, conservative estimates show that $200,000 could have been saved through early identification of her killer, which would have been easily accomplished had a DNA sample been taken from her killer when he was arrested a short time later for an unrelated crime. The Chicago and Denver studies, along with studies completed in California, Maryland, Great Britain, Texas, and Washington, show the substantial resources that could have been saved by earlier identification of serial violent criminals who were arrested but not DNA-sampled until much later upon conviction.
Proving Innocence and Defeating False Confessions
DNA profiles have been instrumental in reversing more than 200 wrongfully convicted persons. In approximately 25 percent of demonstrated mistaken convictions, the defendant provided at least a partial admission to the crime.20
The New Mexico “DNA upon arrest” statute helped prevent the conviction and possible execution of Robert Gonzales for the rape and murder of an 11-year-old girl. Shortly after Victoria Sandoval was raped and murdered, Gonzales confessed to the crime. Almost three years later, Israel Diaz was arrested for an unrelated burglary. Diaz’s DNA was collected at his arrest and a match with DNA collected from Victoria Sandoval’s murder scene followed. Investigators determined that Gonzales fabricated his confession. Diaz is an illegal alien, meaning that he likely would never have been prosecuted for the burglary and would merely have been deported. Without the collection of DNA upon arrest, Diaz would have certainly escaped justice and Gonzales might have died an innocent man.21
Opponents of DNA collection upon arrest often raise claims that DNA testing is far more intrusive on personal privacy than merely taking fingerprints and photographs upon arrest. Privacy advocates claim that health insurers or employers might somehow access an individual’s DNA profile and discriminate on the basis of potential future medical costs. These claims quickly fail when one recognizes that a forensic DNA profile does not contain medical information and genetic indicators. Forensic DNA profiles reveal only the 13 to 15 key markers that make identification possible.
Dr. Arthur Eisenberg, a professor in the University of North Texas Department of Pathology and Human Identification, explains that the type of DNA information collected upon arrest supports only criminal investigation, not revealing potentially sensitive medical information. “Katie’s Law provides the ability to collect and analyze arrestee samples and marks the next evolution in the use of DNA as a crime fighting tool. The availability of these DNA profiles, which do not disclose any private medical or genetic information, allows DNA profiling to achieve its full potential to solve and deter crime.”22
What Lies Ahead?
A number of state legislatures are being asked to consider joining the federal government and the states that currently require collection of DNA upon arrests. Rapidly advancing technology will expand the potential for solving crimes through DNA and the ease of collecting and testing DNA. The public safety benefits of collecting DNA upon arrest are obvious. Nonetheless, there are well-considered and well-intentioned arguments in opposition. Police administrators are likely to be invited to join the debate and should be prepared to represent their departments’ and communities’ interests. ■
This column is prepared by members of the IACP Legal Officers’ Section.
1CODIS is the Combined DNA Index System. CODIS is not actually a true database, but the architecture connecting state DNA index systems (SDIS), local DNA index systems (LDIS), and the national DNA index system (NDIS).
3The following states have statutes authorizing DNA collection upon arrest: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont.
4US Department of Justice, The President’s DNA Initiative, found at http://www.dna.gov/basics/backlog; Edwin Zedlewski and Mary B. Murphy, “DNA Analysis for Minor Crimes: A Major Benefit for Law Enforcement,” NIJ Journa, no. 253:3 (January 2006).
5See e.g., Council for Responsible Genetics, Position Paper on Genetic Discrimination, August 18, 1997, www.genewatch.org/gendisc.html.
642 U.S.C. 14135a; Rules and Regulations, Department of Justice, 28 CFR Part 28.
7United States v. Pool, ___F.Supp.2d___, 2009 WL2152081 (E.D.Cal., May 27, 2009).
842 U.S.C. 14135a et seq.
9United States v. Pool, ___F.Supp.2d ___, 2009 WL2152081 (E.D.Cal., May 27, 2009).
10Id., quoting United States v. Sczubelek, 402 F.3d 175, 185 (3rd Cir. 2005).
11Anderson v. Commonwealth, 274 Va. 469, 475, 650 S.E.2d 702, 705 (2007). See also State v. O'Hagen, 189 N.J. 140, 162, 914 A.2d 267, 280 (2007) (“We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person. Even if a convicted person is required to give a blood sample, that procedure has been held to impose a minimal intrusion. Moreover, that intrusion is no more intrusive than the fingerprint procedure and the taking of one's photograph that a person must already undergo as part of the normal arrest process”);State v. Brown, 212 Or. App. 164, 167157 P.3d 301, 303 (“the use of a swab to take a DNA sample from the mucous membrane of defendant's cheek . . . appears to be no more invasive than thetaking of his fingerprints”), review denied, 343 Or. 223, 168 P.3d 1154 (2007).
12Nicholas v. Goord, 430 F.3d 652, 671 (2nd Cir. 2005), cert. denied, 549 U.S. 953 (2006).
13United States v. Sczubelek, 402 F.3d 175, 185 86 (3d Cir. 2005), cert. denied, 548 U.S. 919 (2006).
14Denver District Attorney’s Office, http://www.denverda.org/DNA_Documents/Arrestee_Database/Denver%20Preventable%20Crime%20Study1.pdf (accessed November 5, 2009).
15Chicago’s Study on Preventable Crimes: Requiring DNA for Felony Arrests Can Solve and Prevent Violent Crimes. Waiting for Conviction Can Cost Lives, http://www.dnasaves.org/files/ChicagoPreventableCrimes.pdf (accessed November 5, 2009).
16Virginia, Department of Forensic Science, “DNA Databank Statistics,” http://www.dfs.virginia.gov/statistics/index.cfm (accessed November 5, 2009).
17Christopher Asplen, The Application of DNA Technology in England and Wales (Washington, D.C.: January 2004) at 2, http://www.ncjrs.gov/pdffiles1/nij/grants/203971.pdf (accessed November 25, 2009).
18Utah Office of the Attorney General, “UTAP: Cold Case Files.”
19“State Legislation on Statute of Limitations for Certain Sex Offenses and Identifying Perpetrators by DNA Profiles,” National Conference of State Legislature (January 2003).
20Innocence Project, “Understand the Causes: False Confessions,” http://www.innocenceproject.org/understand/False-Confessions.php (accessed November 7, 2009).
21“Charges Dismissed against Child Rape, Murder Suspect: DNA Test Exonerates Gonzales in Victoria Sandoval Case,” KOAT.com, June 27, 2008, http://www.koat.com/news/16732539/detail.html?taf=alb (accessed November 7, 2009).
22Arthur Eisenberg, “Genetic Health Privacy Is Not at Risk,” Katies Law, http://www.katieslaw.org/privacy.html (accessed November 5, 2009).