DNA Testing

Safeguards for expanding Maryland's DNA database

LAST MONTH, Maryland Gov. Martin O'Malley (D) announced progress in reducing the state police's DNA testing backlog. Now the Governor's Office of Crime Control and Prevention is looking into a proposal to expand mandatory DNA testing to include not only convicted felons and certain misdemeanants (as under current law) but everyone arrested in Maryland, pre-conviction. The DNA identifiers could then be run against a national database of DNA evidence for potential matches in unsolved crimes.

This proposal would make Maryland's DNA database the most far-reaching in the country. While all states have mandatory DNA testing for certain classes of convicts, only a handful, including Virginia, require DNA testing of some arrestees prior to conviction, and no state tests everyone who is arrested. Proposals similar to the one Mr. O'Malley described have come before the Maryland legislature in the last few years, generally with the comparison to fingerprinting for identification purposes, and all have raised privacy, constitutionality and practicality concerns. DNA, after all, is like fingerprinting in its use for identification, but DNA potentially contains much more highly sensitive information about a person's health. DNA testing also requires great resources. The Maryland legislature can minimize these concerns as it expands the DNA database by providing appropriate safeguards.

First and foremost, legislators should continue to require that DNA samples (generally taken painlessly by way of a cheek swab) be analyzed only for identity-specific characteristics that have no known medical or biological significance, and they should continue to criminalize the use of DNA for any purpose other than law enforcement identification measures (no releasing of DNA information to the public, and no running of analyses for genetic disorders). After DNA is analyzed for identity markers, the biological sample should be destroyed to prevent any potential abuse of the other information that could be derived from it.

There should be strict oversight of any law enforcement group using DNA analysis, perhaps through the third-party forensics oversight board mandated by the Maryland legislature this past session. The Office of Crime Control and Prevention should also keep good records on the number of cold-case hits resulting from DNA sampling at time of arrest that would not have resulted from DNA sampling at time of conviction under current law. Virginia has had hundreds of arrestee cold-case hits, but its Department of Forensic Science doesn't keep track of whether those were cases that would have been solved anyway after a suspect was convicted. The state should also keep track of spending per solved case for comparison with spending on cases solved using other methods.

DNA screening is an exciting police tool that has the potential for great good or for abuse and waste of taxpayer money. Careful monitoring of the administration and the results of these policies will help ensure that more crimes are solved while minimizing intrusions on civil liberties.