Delay could be chance to improve DNA database bill

While the Texas Senate Criminal Justice Committee voted several bills out of committee this week - including Sen. Juan Hinojosa's legislation eliminating life without parole sentences for juveniles, substituting a flat 40 year minimum - I was somewhat surprised to see Sen. Dan Patrick's SB 727 expanding Texas' DNA database wasn't among them.

Sen. Patrick's bill would dramatically expand Texas' DNA database to include all adults on probation, all youth sent to TYC, and every juvenile convicted of a felony, massively expanding the size of the state's DNA collection. (Presently about 155,000 people are locked up in Texas prisons, while perhaps triple that number are on probation.)

Among juveniles, too, Patrick has suggested a breathtaking expansion by including not just youth in TYC but all juvenile felons. Only a fraction of youth adjudicated for felonies are sent to TYC, but many times that number are put on probation. The inclusion of these youth bothers me because there's no provision in the bill for how juveniles (or anyone else) can petition in the future for their DNA to be removed. How long should a felony graffiti rap when you're 15 keep you in the CODIS database?

Over time, we're talking about accumulating DNA data on a large proportion of Texans. When you consider that one in 22 adult Texans at any one time is under control of the criminal justice system (about one in 11 adult Texans have a felony record), we could easily see Texas go from the 400,000 or so currently in the CODIS database to millions in just a few years.

While the Senate committee takes extra time to consider Patrick's bill, I'd strongly suggest everyone involved with that decision - both committee members and staff - read Jeffrey Rosen's article this week at Slate ("Genetic surveillance for all," March 17) articulating potential downsides to creating such an uber-database - particularly the risks to personal privacy of family members who committed no crime - as thoughtfully as anyone I've seen.

Rosen foresees a terrible, slippery slope for the DNA database from the use of familial DNA searches, which he says amount to a "DNA dragnet," especially among African-American communities.

At a minimum, I'd have to agree that "the decision to record the probabilities of each match in racial terms gives a creepy whiff of eugenics to the CODIS database." I have no idea why scientists would choose to subcategorize probability rates by cultural distinctions like race - why would that method of parsing the data be any more probative than just using the same baseline for everybody?

One reason to focus on race may be that CODIS disproportionately includes African Americans, Rosen argues, thanks to crime patterns over the period DNA has been collected:

African-Americans, by several estimates, represent about 13 percent of the U.S. population but 40 percent of the people convicted of felonies every year. The CODIS database of 6.6 million now includes samples from convicted offenders. As arrestees are added to this mix, CODIS may soon grow to 50 million samples, which might be even more disproportionately African-American. Hank Greely of Stanford Law School has estimated that 17 percent of African-American citizens could be identified through familial searches, as opposed to only 4 percent of the Caucasian population. Once the implications of the racial disparity become clear, there may be a reaction against ever-more-expansive forms of DNA collection that makes the debate about racial profiling look tame.

Given that Texas' own debates about racial profiling have been neither pleasant nor tame, from my perspective it would be better to have such discussions before the state massively expands its DNA database, not after.

Of course, privacy risks and racial profiling concerns must be weighed against the law enforcement benefits. In the scheme of things, though, the DNA database doesn't solve very many cases; Texas solved its 1,000th case last year through the DNA database after 12 years of using it, but this is a state with around 850,000 felony adjudications annually, so that's not very many. As Mark Bennett points out, "Most cases don’t involve DNA. Most rape cases don’t involve DNA. Most child rape cases don’t involve DNA."

Far and away, most crimes are solved by routine investigation. Most cases solved using DNA match biological evidence with a particular suspect, or in the case of exonerations, innocence is established by the failure to match crime scene DNA (usually a rape kit) to the person convicted of the offense. Relatively few crimes are solved through a lucky hit on the database. Even when DNA exists, Texas crime labs lack sufficient capacity. All of them are backed up with months-long waits for analyses. This bill would add to crime labs' workload when they're barely able to handle the DNA caseload they've got.

So while it's true that DNA evidence is a useful new forensic tool, the database itself is not some crimefighting panacea. It's most often useful in serious, violent offenses, but Sen. Patrick's bill extends its tentacles more broadly to every type of offense.

The only government I know of that gathers DNA on as many of its citizens as Sen. Patrick is proposing would be Great Britain, where the Labour Party under Tony Blair built a database with 7.39% of the population in it, compared to about 0.5% in the United States. How has it worked out there? Last month, the House of Lords issued a report criticizing the growth of "surveillance society" tactics in the UK, fearing openly that widespread DNA collection could be misused for "malign purposes."

The House of Lords' report highlighted possible safeguards that might reasonably be included in Texas' bill, e.g,: "GeneWatch UK called for the reintroduction of 'a system of time limits on how long people are kept on the Database—so that only DNA profiles from people convicted of serious violent or sexual offences are kept permanently.'” That seems like a sensible approach to me, particularly in light of Sen. Patrick's proposed expansion to juveniles and probationers.

I don't know why SB 727 has been delayed when other bills heard at the same time are moving on through the system, but hopefully it's to scale back the legislation's sweeping scope, particularly among juveniles, and to create protocols and mechanisms for removing DNA samples from the database.