Legislation requiring DNA samples from those arrested for violent felonies took effect Jan. 1, after passing with limited opposition in the 2002 General Assembly. Previously, only those defendants convicted of violent felonies had to provide a DNA sample to the bank.
According to the Virginia chapter of the ACLU’s civil liberties review, “Prisoners and the accused served as convenient targets for lawmakers seeking to appear tough on terrorism and crime this year. … With this law, Virginia will become the first state to actively take genetic samples from people who are presumed to be innocent.”
Virginia’s DNA profile bank is the oldest in the nation, containing the DNA profiles, or genetic fingerprints, of 190,000 people. Dr. Paul Ferrara, director of the Virginia Forensic Science Division, describes it as the “most comprehensive” DNA database in the United States.
“The database serves two purposes: it is a great crime [fighting] tool, it also serves to exonerate the innocent,” Ferrara said. “It is a two-edged sword.”
All 50 states have DNA databases, Ferrara said. He estimated that 28 include people arrested for felonies, similar to Virginia’s new law. The remaining 22 states might include only sexual offenders, or those convicted of certain specific types of felons in their DNA databanks.
On Nov. 13, Virginia’s database of DNA profiles registered its 1,000th “cold hit.” A cold hit is the link between a crime and an individual in the database, or a new crime and another crime in the database. The database had 44 hits in 2002 and has had a total of 1,035 hits since it began in the early 1980s, Ferrara said.
It is anticipated that the new legislation will increase the size of the DNA database by approximately 20 percent, if “arrest rates remain consistent with recent years,” according to a report the Department of Planning and Budget provided for the legislators considering the bill during the 2002 session. It costs $40 to $50 to process a sample, Ferrara said.
Predicting possible growth of the databank is further complicated by a stipulation in the new legislation: If a person is found not guilty after their DNA was taken upon arrest, the profile must be expunged from the databank. Ferrara suspects that the new legislation won’t cause a large growth in the number of profiles added to the bank. Instead, he sees it as speeding up the process of clearing suspects.
“It allows us to eliminate innocent suspects a lot earlier,” Ferrara said.
The bill passed the Senate with little opposition — only seven votes against it — and breezed through the House of Delegates as well. There were only four votes against house bill 892. One of those votes was Prince William Delegate Michele B. McQuigg, R-59th District. McQuigg is also a member of the House Courts of Justice Committee.
“I felt it crossed the line. They’ll destroy [the profile] afterwards [if found innocent] but they’ll use it in the meantime,” McQuigg said. “They could potentially do a witch hunt that way. Who’s to control that?”
However, Ferrara points out that everyone charged with a crime has their fingerprints taken. He says that the DNA profile is similar — merely a means of identification.
“DNA is probably less informative than a social security number,” Ferrara said. “[The profile is] 26 numbers that are quite meaningless except when those same set of numbers match [a set] in the bank. It’s a biometric fingerprint.”
“I voted against that too,” McQuigg said. “I might be fighting a losing battle on privacy, given the government probably knows more about me than I do.”
Fingerprints are taken of everyone arrested and booked, said 1st Sgt. Kim Chinn, Prince William County Police spokeswoman. Unlike the DNA profiles, fingerprints are not automatically expunged if an arrestee is found not guilty.
“[Fingerprints] are on file forever. That’s how we do all our matching,” Chinn said. “They stay on file until you die or you file for expungement.”
Expungement is a legal proceeding where a person who wishes his or her fingerprints removed from the databases petitions a judge for permission to do so.
Fingerprints taken by Prince William County police are sent to databases maintained by the FBI and the State of Virginia, as well as a copy kept by Prince William Police, Chinn said.
“The state having your DNA is like the state having your medical records,” said Kent Willis, executive director of the ACLU’s Virginia chapter. “They should only be able to take and keep information where it serves a compelling need for society.”
“With respect to DNA profiles, the portions of DNA we use for identification purposes come from non-coding regions [of the DNA strand.] You could give [the profile] to a geneticist and they would be unable to ascertain a physical condition, or a predisposition for disease,” Ferrara said.
The only physical characteristic that could be ascertained from the profile is sex, Ferrara said.
“We’re more concerned about the direction this takes than the law itself,” Willis said. “We’re not opposed where DNA is a relevant factor in the crime.”
While the databank’s genetic fingerprints are as harmless — or damning — as a fingerprint, the physical samples — the swabs of spit and vials of blood or other biological material — could potentially be tested for purposes other than identification. That is the major concern of the databank’s opponents. It is possible to test the samples for paternity, or certain types of diseases or predispositions to diseases.
“That’s the kind of thing that is concerning because of the other ways it could be used,” said Dr. Lizabeth A. Allison, an associate professor of biology at the College of William and Mary who specializes in molecular genetics. “[Identification] may be one thing but if the information is used for other things it gets into all kinds of sticky issues.”
“We keep the samples for purposes of double checking, [in case of] sample mixups, and as a hedge against new technology,” Ferrara said. “We always recheck the samples after we make a hit.”
Allison said that medical information obtainable from the physical samples has the potential to affect a person’s employment or health insurance.
“We are not equipped to do those tests. We’re not geneticists,” Ferrara said. “The samples potentially could be used [for medical testing] if we were willing to violate the law. The law specifies [the samples] can only be used for purposes of identification.”
Ferrara said that opponents of the databank with such concerns should have more worries about unregulated samples.
“Civil libertarians concern themselves with forensics databases, but if you go to [a job interview] they usually ask for your urine — they have your DNA,” Ferrara said. “Insurance companies ask for a physical. Those aren’t regulated. DNA banks are the only well-regulated repositories of samples.”