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Whose DNA Is It Anyway?

By Jane Black In Massachusetts, the parents of murdered 16-year-old Molly Bish are fighting for a new law that would require criminals to submit their DNA to the state -- even though no evidence suggests a convicted felon played a role in their daughter's death. In Louisiana, Shannon Kohler is suing the state for collecting his DNA as part of a dragnet in which gentic evidence was key to tracking down alleged serial rapist and murderer Derrick Todd Lee.

Welcome to the complex, evolving world of DNA crime-fighting. The tests, which seek to match suspects' DNA against evidence found at crime scenes, is rightly hailed as a quantum leap in crime-fighting. When a match is made, the certainty is said to be 99.99%. DNA databases have proved instrumental in solving crimes and establishing the innocence of those wrongly convicted.

COLD HITS. Law enforcement's embrace of DNA testing, however, must be tempered to protect privacy. It's right to expect that felons' DNA become part of the state record. It's wrong to mandate that anyone arrested for a felony or someone, like Kohler, who happened to fit a law-enforcement profile, be forced to add his precious genetic information permanently to state law-enforcement databases.

Massachusetts has got it right. On June 19, the Senate passed a bill that would mandate the collection of DNA from all felons and youth offenders, not just violent criminals such as rapists and murderers. The goal: To increase the rate of DNA matching -- and subsequent criminal prosecutions -- by increasing the number of DNA samples in the state database.

It's simple math. The more DNA samples in the database, the more likely investigators are to make a "cold hit," matching DNA from a crime scene to someone's database profile. Evidence from states with similar laws on the books shows felons, such as burglars and fraudsters, are often repeat offenders. And many go on to commit violent crimes.

CONVICTIONS OVERTURNED. In Virginia, which began collecting felons' DNA back in 1990, investigators scored 445 cold hits in 2002, an average of 37 per month. Forty-four percent of the crimes were committed by felons who had previously been charged with burglary. Five percent were committed by those previously convicted of forgery. In total, more than 85% of the hits would have been missed if the databank had been limited to violent offenders.

DNA databases also reduce the risk of convicting the wrong person -- and increasingly play a role in freeing the innocent. It was DNA evidence that finally exonerated five young men convicted of the brutal 1989 rape of the woman known as the Central Park Jogger. The Innocence Project, a nonprofit legal center at New York University Law School, has freed 131 convicted felons by presenting postconviction DNA evidence.

If the Massachusetts bill is approved by the legislature and signed by Governor Mitt Romney, the Bay State will be the 28th state with a DNA mandate. And America will be one step closer to a safer society, says John Bish, the father of Molly Bish, who disappeared in June, 2000, on her way to her job as a lifeguard in central Massachusetts. "Expanding the DNA pool can help identify repeat offenders who commit crime after crime and become more accomplished as they go along," Bish says. "DNA databases can help stop another child from being harmed while they are on their way to school or work."

LOW THRESHOLD. How big should the DNA pool be? Not nearly as big as Louisiana Governor Mike Foster believes. On June 20, he signed a law that would require anyone arrested for a felony to provide a DNA sample for the state database. This occurred after law enforcement conducted a DNA dragnet to catch a serial rapist and murderer stalking Baton Rouge. State police collected DNA from more than 1,000 white men, sometimes voluntarily, sometimes with a court order. Lee, who allegedly killed six women, is black. He was linked to the case when his DNA was collected by investigators in an unrelated case.

Convicted felons may have a reduced right to privacy, but Louisiana went too far in thinking the same holds true for dragnet subjects and arrestees. If police want to collect DNA from nonfelons, they should guarantee that the information will be expunged from state records if the accused fails to be indicted or is later acquitted. "Unfortunately, in the U.S. today, certain [minorities] are arrested on inadequate probable cause," says Eric Sterling, president of the nonprofit Criminal Justice Policy Foundation in Silver Spring, Md. "Therefore, to rely upon arrest as a threshold standard is inadequate as a protection of the innocent."

Kohler, one of the men forced by police to submit his DNA in the search for the Louisiana serial killer, is right to sue to get his DNA back. The price to clear your name shouldn't be surrendering your personal biological information to the government for any and all purposes. "Requiring someone who happens to fit a description to submit DNA is too inclusive," admits John Bish, who adds: "It's a little Orwellian."

MODERN FINGERPRINT? We can expect that sort of Orwellian behavior to become increasingly common. This month, Miami police have asked more than 120 Hispanic men to volunteer their DNA to help track down a serial rapist linked to five attacks since September, 2002. Miami police say voluntary DNA samples are accessible only to Florida law enforcement. But it's not clear -- and far from certain -- that the DNA will be destroyed if and when the case is solved.

DNA testing is a powerful tool for law enforcement. It should be used to keep the streets safe and to free the innocent. But DNA is far more than a 21st century fingerprint. It contains private health information about you -- and everyone related to you. Law enforcement should limit DNA collection to dangerous criminals and not encroach on innocent people's right to privacy. Black covers privacy issues for BusinessWeek Online in her twice-monthly Privacy Matters column

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