By Heather Nann Collins, Journal Inquirer (Connecticut)
Every person convicted of a felony in a Connecticut court is now required to make a deposit in the state's fastest growing bank: The DNA databank, which currently has stored about 8,000 convicted offender profiles.
On Oct. 1, 2003, the state became one of 22 nationwide to require all convicted felons -- not just sex offenders -- to give a sample of their bodily fluids for analysis of the deoxyribonucleic acid, the chromosomal material identifying a person's unique genetic makeup.
Prior to the bank's expansion, only convicted sex offenders had to give blood or saliva for profiling.
But state lawmakers, following many others around the country, opted to go for a piece of President Bush's five-year, $1 billion push to expand the use of DNA evidence.
The "Advancing Justice through DNA Technology" initiative was designed to expand the FBI's Combined DNA Index System -- or CODIS -- database, eliminate backlogs at the state and federal level, and increase state and federal crime lab capacity.
Connecticut wouldn't have received a share of the funding unless it created a backlog of samples waiting to be read.
Prior to the law's enactment, the state police forensic laboratory's division of scientific services had analyzed and catalogued 8,000 samples, and no backlog existed.
But since the law took effect last year, some 10,000 newly collected convicted offender samples have been submitted for analysis.
And Elaine Pagliaro, the lab's assistant director, said the lab receives an average of 200 samples per day from convicted offenders.
Testing the samples costs about $50 each, while collection kits are about $25 apiece.
A Justice Department grant to be awarded in 2005 will allow the state police lab to contract out the task of sample analysis, Pagliaro said. Once the samples are returned to the state lab, they will be screened to ensure they meet the lab's standards before being included in the state database.
Analyzed samples are sent to the CODIS database, which allows Connecticut to electronically submit, exchange, and compare DNA profiles with other states and those collected from federal convictions.
Being a CODIS member doesn't mean other states have unfettered access to Connecticut's DNA profiles, Pagliaro adds.
"We don't have individualizing information, we have only the scientific data," she says. "The other state must contact us" and the information is released only if it meets Connecticut's particular criteria.
As of September, the CODIS database had nearly 1.9 million convicted offender profiles and about 100,000 profiles from crime scene evidence. The FBI says more than 20,000 cases have been aided by "hits" on CODIS profiles, including a couple of hundred in Connecticut.
The FBI defines a "hit" as a match to an existing DNA profile that otherwise wouldn't have been developed as evidence without CODIS.
This month, the U.S. Department of Justice released a brief touting its funding of DNA analysis from property crimes such as burglary and car thefts in Florida and New York.
According to the Justice Department, a review of New York's first 1,000 CODIS hits "showed the vast majority were linked to crimes like homicide and rape, but of those, 82 percent of the offenders were already in the databank as a result of a prior conviction for a lesser crime such as burglary or drugs."
Florida officials had similar results, with 52 percent of CODIS hits for murder and sex assault cases matching individuals with prior burglary convictions.
A Huge Task And Growing
In addition to new convicts, the law was retroactive to include those already jailed and those on parole probation for crimes including larceny, robbery, and murder.
That has required efforts not only from the state Correction Department, but from the Judicial Department, which annually oversees an estimated 30,000 probationers affected by the law, and the state police, who are required to take samples from "walk-aways," convicted felons who aren't required to serve a prison or probation term.
"It definitely is a large project," judicial spokeswoman Melissa Farley says. "It's a concern because of the numbers. At any given time, there are about 60,000 people on probation, and about half of those have been convicted of felonies."
Judicial officials in February began implementing its plan to comply with the law, and, by September, had sent 15,400 letters to people on probation.
While about 1 percent of the letters were returned as undeliverable, Farley says, the department had decent compliance, with more than 5,000 offenders scheduling appointments for a mouth swab.
Refusing to comply with the state's demand is a misdemeanor -- meaning refusal can be costly to convicted felons.
Probationers who refuse are subject not only to a $2,000 fine, but the possibility of being sent to jail for up to six months and charged with a new crime: probation of violation. When that happens, the probationer could be forced to serve the suspended portion of his or her initial sentence. That means the state's crowded prisons could be filled even more.
It's not a prospect lightly considered by state officials.
"We don't want to have a lot of violations of probation," Farley says. "We didn't want to look at the process of violating people until we implemented this new scheme."
Defendants, even those who may have been successfully finishing out their probation when the law was enacted, "are taking this seriously," Farley says.
"We're also trying to be careful that we've done everything we can to notify someone of the requirement," she adds. "You've got to give them a chance to comply."
The Correction Department began implementing the requirement by "working backwards," spokeswoman Stacy Smith says.
"We concentrated on those people who were being released" from DOC oversight as the Oct. 1, 2003, deadline approached, Smith says.
That has meant taking samples from more than 6,000 defendants on parole and those living in halfway houses or other supervised housing.
"We wanted to get them before they were totally discharged," Smith says.
Asked if delaying sampling prisoners could mean that unsolved crimes continue to go unsolved -- or if wrongly convicted individuals would continue to be jailed for crimes they didn't commit and which could be proven through the DNA databank -- Smith says the department is now moving more quickly toward taking samples from inmates.
Although just 264 samples have been taken from prisoners, Smith says a recent example points to progress; a man convicted on Oct. 5 was tested on Oct. 7.
"We have a good hand on it, and we are catching up," Smith says. "We have a captive audience."
Find The Guilty, Exonerate The Innocent
The ability to connect unsolved crimes and to identify patterns, as was done in New York and Florida, was just one consideration when Connecticut lawmakers drafted the legislation expanding DNA sample requirements.
Exonerating the innocent and finding the guilty prompted overwhelming support from state legislators, who heard testimony from experts, including nationally known defense lawyer Barry Scheck.
Scheck directs the Innocence Project at the Benjamin N. Cardoza School of Law in New York, which represents defendants seeking post-conviction exoneration via DNA testing.
The Project successfully lobbied Congress to enact the Justice for All Act of 2004, which the president signed into law Oct. 30. It grants inmates convicted of federal crimes the right to petition a federal court for DNA testing to support a claim of innocence.
But even some defense lawyers don't support CODIS and DNA databanks.
Well-known New Haven defense lawyer Norm Pattis finds such a vast collection of human data to be "chilling" and Connecticut's all-encompassing felony conviction requirement "repulsive."
"It's extremely chilling, because it's not so much Big Brother wanting to know who you are, as it is what you are," says Pattis.
Pattis' concerns were echoed in a dissenting opinion written in August by judges from the 9th U.S. Circuit Court of Appeals.
In a 6-5 opinion, the court ruled that the federal DNA Act requiring people convicted of certain crimes to submit to blood samples for the CODIS databank doesn't violate Fourth Amendment protections against unlawful search and seizure.
The claim was brought by decorated Navy seaman and convicted bank robber Thomas C. Kincaide, who refused to give a blood sample for inclusion in the databank. Kincaide challenged the constitutionality of the DNA Act citing the Fourth Amendment.
While the act was upheld, the minority of the Circuit Court, in a 49-page blistering dissent written by Judge Stephen R. Reinhardt, said the act puts "all Americans at risk, sooner rather than later, of having our DNA samples permanently placed on file in federal cyberspace, and perhaps even worse, of being subjected to various other governmental programs providing for suspicionless searches conducted for law enforcement purposes.
"To allow such information to be collected through the compulsory extraction of blood from the bodies of non-consenting Americans runs contrary to the values on which this country was founded," Reinhardt wrote.
"Never once in over 200 years of history has the Supreme Court approved of a suspicionless search designed to produce ordinary evidence of criminal wrongdoing by the police," he wrote.
And though "it is always tempting to grant the government more authority to fight crime ... that desire does not justify eviscerating the structural edifices of the Fourth Amendment. ... Privacy erodes first at the margins, but once eliminated, its protections are lost for good, and the resultant damage is rarely, if ever, undone."
No one has yet challenged Connecticut's law, perhaps, Pattis suggested, because few defendants are unwilling to give up a favorable plea offer in exchange for a blood sample.
Former prosecutor turned widely respected defense lawyer Richard R. Brown, of Hartford, says giving a sample for DNA analysis is "a minor inconvenience."
"It's a balancing act between the individuals' rights, and those of society as a whole, to be protected against predators," Brown says.
Felons are more likely to repeat violent acts; knowing the state already has their DNA on record could serve as a deterrent to recidivism.
"This puts people on notice," Brown says.