Research Paper: DNA Profiling for All Convicted Criminals

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DNA Profiling

The positive Impact of Mandatory DNA for Convicts Criminal

For the past few decades, science has evolved to the point that our human fingerprints can be identified from our cells that can conclusively confirm or deny the identity of the person whose body provided the cells. In a society that values personal privacy as perhaps higher than all other individual rights, a debate among scholars and practitioners has developed. Is DNA profiling and the compiling of a widespread DNA database in our society's best interest? The purpose of this paper is to argue and persuade that, for the reasons set forth below, the answer to the above question "Yes." DNA profiling is in our collective best interest and in fact, submitting to a DNA database should be mandatory for all Americans with criminal convictions.

Mandatory Profiling for Convicts

This paper will present the research, analysis and conclusions of some of the experts in the field as well as some of the recent developments in criminal justice DNA profiling which support mandatory profiling for convicted criminals. As a precursor, though, the paper will present the general opinion of the writer in support of the profiling. The purpose of presenting the personal opinion is to provide a reference point for the research presented and to justify why certain factors are evaluated and others are not.

DNA profiling has two primary functions in a criminal justice context. The first is to conclusively identify criminal offenders. The second is conclusively eliminate non-offenders. Both of these functions are fundamental to the preservation of American society and its foundations in rights for the accused and innocent until proven guilty beyond a reasonable doubt. When determining whether DNA profiling is unduly invasive, each person so determining will have to balance values and decide which value is more important.

While privacy and freedom from undue government intrusion is a highly valued right, the need to convict the guilty and exonerate the innocent is more substantial. Further, in many instances those convicted of crimes automatically lose certain rights (e.g., to vote or carry a gun if convicted of a felony) and privileges (e.g., to drive if convicted of a DUI or to live near a school if convicted of sex-based offence). Certainly, treating those with convictions as different from other citizens is not a new, or particularly unpopular occurrence. Requiring those who have criminal convictions to submit to DNA profiling is not materially different than requiring a convicted sex offender to register as sex offender upon his or her release from prison.

Constitutionality of DNA Profiling

The United States Supreme Court has ruled that DNA analysis is not protected by the Fifth Amendment privilege against self-incrimination. The Court has consistently ruled that the Fifth Amendment protection is limited to spoken words and oral testimony by an accused. Subsequent lower court decisions have taken all physical evidence, from blood samples in DUI case, to gunshot residue to dental impressions etc.… outside the ambit of self-incrimination because they involve physical evidence (Gianelli). Recent cases have applied this line of reasoning directly to DNA testing (Gianelli citing to Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir. 1998), where the court "rejected the Fifth Amendment self-incrimination claim because DNA samples are not testimonial in nature.")

The Fourth Amendment, which protects Americans against unreasonable search and seizure, affords accused criminals more protection against DNA testing. However, so long as proper procedure is followed, DNA testing has been held to comply with the Fourth Amendment. The Supreme Court has not ruled directly on the constitutionality of DNA testing, but it has provided dicta in its opinions which have led many states to enact legislation setting forth the circumstances under which police may seize DNA evidence. Most state rules require a court order or warrant, and a showing of reasonable suspicion that the subject committed a crime and that DNA evidence will tie the subject to the crime (Gianelli citing to United States v. Ingram, 797 F. Supp. 705, 717 (E.D. Ark. 1992)).

It is evident from analysis and case law above that DNA testing has passed constitutional muster. This is important because the Supreme Court specifically upheld the right of law enforcement to obtain DNA samples from people who have not been convicted or even charged with a crime. This suggests that mandatory DNA profiling for convicted criminals would likely survive the judicial challenge that such a system would face would be certain to face.

CODIS & Helping to Crack "Cold Cases"

One of many great reasons to implement mandatory DNA profiling for all convicted criminals is the help that would be provided to solving the hundreds of cold cases, where the suspect has not been identified and the file has been closed due to the lapse of time. Gregory K. Moffatt and Nicholas W. Hersey, have studied the use of DNA in solving cold cases and found that where the DNA analysis is available, the results have been remarkable. They specifically point to the 100% success rate of the Atlanta (Ga.) Cold Case Squad and the squad's access to the Combined DNA Database Index System (CODIS) in attaining their level of proficiency (Moffatt and Hersey 45).

In many respects, CODIS already accomplishes what this paper suggests, which is a database for convicted and incarcerated persons maintained by the FBI (Gregory and Hersey 45). The difference between what CODIS and this paper proposes is significant. CODIS is permissive and voluntary nature. This means that DNA Identification Act of 1994 allows, but does not mandate the FBI to maintain a central DNA database. Secondly, state and local law enforcement agencies are not required to participate. In fact, some states still do not allow routine collection of DNA samples of its convicted criminals. In order to best ensure that the FBI and state and local police departments can effectively solve cold cases, participating in the DNA database index should be required of all criminals and law enforcement agencies (FBI CODIS brochure 2008).

Universal/Voluntary DNA Profiling

In her article for the New Scientist magazine raises two insightful justifications for DNA profiling not only as a tool criminal apprehension but also as a protection against citizens from false convictions. Of course, DNA evidence can be exculpatory in that it can conclusively eliminate a person as the potential perpetrator. Further, a natural tendency is to gravitate towards feeling that a convicted criminal is guilty of a subsequent crime by virtue of his or her initial conviction. In these cases, the convicted criminal may only be exonerated on the strength of exculpatory DNA evidence (Wilson 34).

The other point raised by Wilson is quite novel and would obviate the need for mandatory profiling of criminals. Wilson believes that it is not necessary to single out the criminals for profiling, instead profile everybody at birth. Under this system, over time, everyone's genetic fingerprint will be readily available and law enforcement will not have to rely on the 'lucky hit' factor of DNA having been entered in to the database (Wilson 34).

Other Reasons to Support Mandatory DNA Profiling

Aside from the reasons stated above, there are additional advantages to the mandatory DNA profiling of convicted criminals. An in depth study by Joel D. Lieberman, Terance D. Miethe, Courtney a. Carrell, and Daniel a. Krauss has found that in deciding violent crimes, jurors have significantly more faith in DNA evidence than they do in any other form of evidence and the jurors find the DNA far more persuasive than they do any other form of evidence (37). The study also indicated that the mere presence of DNA evidence is powerful in the courtroom that many defendants are likely not to set forth additional legal defenses or challenges. proceed with (Liberman et. al. 58).

In their essay denouncing DNA analysis as… [END OF PREVIEW]

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