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Should Felons Be Required To Give DNA Samples?

Audio

Aired 5/26/10

Should people arrested on felony charges be required to give DNA samples? We'll look at the controversy surrounding this idea.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. Victims' rights advocates say it's just like getting fingerprinted. They want to see people arrested on felony charges be routinely required to give a DNA sample. But a new California law that requires DNA testing is being challenged in federal court as a violation of constitutional rights. The issue of DNA testing at the time of arrest is a very hotly contested legal question around the nation. KPBS health reporter Tom Fudge is here to tell us about a push in support of the law here in San Diego. Good morning, Tom.

TOM FUDGE (KBPS Health Reporter): Good morning, Maureen.

CAVANAUGH: Now, as I understand it, the top advocate for laws that require DNA testing upon arrest visited San Diego County this week. What can you tell us about her?

FUDGE: Well, her name is Jayann Sepich and her daughter, Katie Sepich, was raped and murdered in 2003 and, of course, this was a horrible experience for Jayann. The killer was eventually caught when a DNA match was made with somebody who was in jail for burglary because the victim scratched her attacker and got some blood and some skin under her fingernails so they could take a DNA test of that. But the point is—or at least the point for Jayann—was that this man who attacked her daughter was arrested for burglary just three months after the attack but he was not convicted and he was not tested for DNA upon arrest and so it wasn’t until three years later when he was actually convicted for burglary that they found out that this was the attacker. And so this caused Jayann Sepich to go on, well, a bit of a crusade to pass what she calls Katie’s Law.

CAVANAUGH: And so these laws are known as Katie’s Laws, the ones that require DNA testing upon felony arrest. Is there presently a Katie’s Law here in California?

FUDGE: Yes, there is. In 2004, California voters approved Prop 69 and Prop 69 made it clear that within four years or within, well, I guess, let’s see, let’s do the math, I guess within five years the state would start taking DNA samples from all people who were arrested for felonies. And so that happened last year. In terms of Katie’s Law, let me just take a moment to let Jayann Sepich describe it to you. Here’s what she says about Katie’s Law.

JAYANN SEPICH (Mother of Murdered Victim): Katie’s Law is very simple. It just says that when a person’s arrested for a felony that at the time of booking when fingerprints and mugshots are taken, that the inside of the cheek is swabbed—it’s called a buccal swab—and that from that DNA a profile is extracted and uploaded into a database.

FUDGE: And, Maureen, you’re going to hear a lot of comparisons during our conversation between fingerprints and DNA samples. People who are advocates of Katie’s Law say DNA samples are simply the 21st century equivalent of fingerprinting. But as we know, in California some people disagree, and that’s why Katie’s Law in California is being challenged in court.

CAVANAUGH: Yes, it’s my understanding that the California version of this law actually went into effect in the fall of last year and it’s being challenged in the courts. Tell us, why is this controversial, Tom?

FUDGE: Well, it’s controversial to members – I don’t know if it’s controversial for everybody or for a lot of people but it’s controversial for members of the ACLU. And I spoke with one of their attorneys who is kind of leading the court fight. His name is Michael Risher and Michael Risher, for one thing, says – claims that Katie’s Law is a violation of the 4th Amendment, which outlaws illegal searches and seizures in the United States. And here’s what else he said about Katie's Law.

MICHAEL RISHER (ACLU Attorney): Our lawsuit also says that analyzing a person’s genetic blueprint and putting it in this enormous nationwide criminal database violates our fundamental right to privacy under the 14th Amendment.

FUDGE: Okay, so they’re claiming that it violates the 4th and the 14th Amendment. Katie's Law, Maureen, actually went into effect right after it was passed in 2004 but at that point it only required law enforcement to take DNA samples from all people convicted of crimes and only take samples from felony arrests when it involved murder or sex crimes. But as of last year, everybody arrested for a felony needs to submit a DNA test.

CAVANAUGH: And that’s the crux of the controversy, isn’t it, Tom, that the requirement that people merely being arrested for a felony submit to a DNA test. How long have states been requiring police to take DNA samples from people that are under arrest but not convicted?

FUDGE: Well, at this point, 23 states and the federal government take DNA samples for people arrested for not – not necessarily all felonies but at least some felonies. And back when Jayann Sepich started her crusade, only about five states required DNA samples being taken upon arrest, so there’s been a tremendous expansion. The question, again, is whether you consider a DNA sample to be merely a fingerprint or a genetic blueprint, and the ACLU claims that if the government has your DNA, they can test it for whatever they want theoretically. Now, the people who are in favor of Katie’s Law say that a forensic DNA sample is only tested for 13 markers and those really don’t tell you anything about your health, the color of your eyes, or anything like that.

CAVANAUGH: I see, so is – Let’s get down to some of the practical matters surrounding this law, the Katie's Laws across the country and the one that we have here in California. Is it expensive?

FUDGE: It is expensive. The legislative analyst, when Katie's Law was passed in California as Prop 69, estimated it would cost about $20 million a year. The San Diego County Sheriff has said that they had to hire ten additional DNA specialists in order to keep up with the caseload with all these additional DNA samples being taken from prisoners and having to be tested and analyzed so it does cost quite a bit of money. Now whether it is worth the money kind of depends on who you talk to. I had a conversation with Bill Gore, who is the Sheriff of San Diego County, and he said that it is definitely worth it when you look at the enhanced ability of investigators to solve crimes. And let’s hear just a little bit from Sheriff Bill Gore.

BILL GORE (Sheriff, San Diego County): Back in 2004, we had 19 hits against that state database. That means for all the specimens, unknown specimens, we sent to Sacramento, 19 times they came back and said that DNA belongs to Joe Blow. This year, we’re on track to be a little over 400 hits, so there’s roughly 381 cases that would not have been solved otherwise.

FUDGE: And, Maureen, I hope it’s clear what he’s talking about there. He’s saying now when they take a DNA sample from a crime scene and then they send it to the state database, they’re much more likely to be able to get a hit, as you say, to actually found out (sic) who that DNA belongs to. And one thing you should know about the use of DNA these days, and this is – this kind of gets back to the comparison to fingerprints, is DNA, we think about DNA being taken from people – being used in cases of serious crime like the Chelsea King case where a person is raped and murdered and they have a DNA sample at the scene and then they find somebody who’s accused of a very serious crime, and that is – frankly, that is how they caught John Gardner, because of a DNA match.

CAVANAUGH: Right.

FUDGE: But the sheriff says that now investigators are using – are collecting DNA at the scenes of property crimes, of burglaries. The technology has enhanced so much that even when you just touch a surface with your hand, you leave a little bit of DNA and they can collect that at the scene of the crime and try to get a match on that.

CAVANAUGH: Now I’m wondering, since California does have its own version of Katie's Law, why did Jayann Sepich bring her crusade, as you called it, here? Does this law still need a great deal of support?

FUDGE: Well, it does need support if you look at the fact that it’s being legally challenged. Now that challenge is going to be played out not in the political arena, that’s going to be played out in a courtroom. But actually the reason – I’ll tell you the reason Jayann Sepich came to San Diego is she came to pay a visit to Life Technologies, the biotech company located in Carlsbad, because Life Technologies is a national leader in the testing and manufacture of DNA testing kits. And so this is part – a big part of their business and so she was up there on Monday to chat with employees. But while she was at it, she was doing her campaign to get Katie's Law supported in this state and passed in other states. By the way, there is currently legislation at the federal level which is trying to get a law passed which would cause the federal government to financially punish states or withhold funding from states that do not have a Katie's Law, that do not collect DNA evidence upon felony arrest.

CAVANAUGH: So where are we in this challenge to the law that the ACLU is conducting?

FUDGE: There’s going to be a hearing in July where the Ninth Circuit Court of Appeals is going to hear the argument of the ACLU that this violates the 14th Amendment and the 4th Amendment of the Constitution and the State of California under Attorney General Jerry Brown will be arguing the other side of the case. There was a ruling in this case in December where the ACLU tried to get an injunction against Katie's Law, in other words tried to stop the state and stop local law enforcement from collecting DNA samples from felony suspects, in December. And the judge denied that injunction and so the State of California has won one round in this legal fight.

CAVANAUGH: I understand. And I also understand a very curious kind of legal argument, at least it’s curious to me because I’m not a lawyer, is that the ACLU is arguing that the fingerprints that are taken upon arrest are legal because they are used to establish the identity of the person but since you’ve already established the identity through fingerprinting, you wouldn’t, therefore, constitutionally be required to give a DNA sample. So I suppose this is a very deep and complicated legal issue that they have to decide.

FUDGE: Well, in practical matter, the fact is DNA is just more valuable than fingerprints…

CAVANAUGH: Umm-hmm.

FUDGE: …because when you leave a fingerprint you might just leave a partial print. It’s much more difficult to use that to identify people. But if you have a person whose DNA is in the state database and you find DNA at the scene, you are very, very likely to get a match and be able to identify the person who was at that crime scene. Now the ACLU says that fingerprints are constitutionally legal because identification is the only thing you can use them for. You can’t go to a person’s fingerprint and find out if they have blue eyes, if they are genetically more likely to be alcoholic, and that’s what they’re concerned about, the ACLU. They say imagine if J. Edgar Hoover had the DNA of Martin Luther King, Jr. back in the 1960s. How might he have used it? Would he have had it analyzed to find out whether Martin Luther King was, you know, likely to be an alcoholic or something like that. So that’s the kind of abuse they’re talking about. They’re saying if they have – if the state has your DNA, there’s an awful lot of personal information they could find out about you if they chose to.

CAVANAUGH: And one last question, Tom. It sounds as if law enforcement is very enthusiastic about this new law.

FUDGE: Oh, yes, I don’t – I think you would have a very hard time finding a person who is in any way involved in criminal investigations who wouldn’t be in favor of Katie's Law. If you can – I mean, people who get arrested, though not convicted for crimes, are very often suspected of having committed other crimes and, you know, they’re suspected of being people who will commit crimes in the future. So if you can get that DNA upon arrest, then you have a much better chance of matching it, of matching it when you find DNA at a crime scene. Now it is expensive, it does take a lot of staff, and there is a DNA analysis backlog, for instance, at the City of San Diego. And so that is an issue. You need the money to actually process these samples but if you’ve got the samples and you can process them, it definitely makes it easier for police to identify suspects. And even Barack Obama has commented on Katie's Law and he’s in favor of it.

CAVANAUGH: Interesting. I want to thank you so much, Tom. Wow. We know so much about this now. Thank you so much.

FUDGE: You’re welcome.

CAVANAUGH: That was KPBS health reporter Tom Fudge. And if you’d like to comment on anything that you heard during this segment, you can go online, KPBS.org/thesedays. Next, we’ll get an update on efforts to reduce the rate of teen pregnancies in San Diego. That’s as These Days continues here on KPBS.

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