AUDIE CORNISH, HOST:
Mandatory DNA collection is quickly becoming routine in the criminal justice system. In many jurisdictions, simply being arrested for a felony means you have to submit a genetic sample for the national database. Federal law enforcement and 26 states permit various forms of DNA sampling prior to a conviction.
BILL RICE, BYLINE: And as NPR's Martin Kaste reports more states are poised to follow suit.
MARTIN KASTE, BYLINE: Jeannie Darneille calls herself a civil libertarian. But when it comes to DNA, she's had something of a conversion experience.
STATE REPRESENTATIVE JEANNIE DARNEILLE: I'm not the usual suspect for actually sponsoring this kind of a bill.
KASTE: The Washington state representative killed two earlier bills that would have allowed pre-conviction DNA sampling. But she changed her mind after hearing about a serial rapist in Tacoma who might have been caught earlier, if his DNA had been sampled at arrest.
DARNEILLE: Let's say the person goes in for that auto theft, and they aren't actually convicted of that, and they leave, and they're gone. But they've committed these prior offenses and they're going to commit more. There's a chance that we could stop them from doing those additional crimes in the future.
KASTE: So this year, Darneille sponsored legislation requiring DNA collection as soon as someone is booked for certain kinds of felonies. A law like that could easily double the number of genetic samples that are processed here at the state crime lab. Like most states, Washington has gradually widened mandatory DNA sampling. First, it was sex offenders, then convicts in general. Lab tech Natasha Pranger says improved technology makes it possible to handle the growing volume.
NATASHA PRANGER: The program started in 1990, and everything was like, blood samples, blood samples. We do not want to have to store all those blood samples in freezers, because that's where they were stored, is freezers. So we're very happy to have these little cards.
KASTE: She holds one up. This is how the samples come in now - just a paper card with dried smears of white gunk Q-tipped out of somebody's mouth.
PRANGER: So I scan it, and then I get to punch it. It's pretty exciting.
(SOUNDBITE OF MACHINERY)
KASTE: The card-punching machine is the size of a laser printer. The machines that do the actual DNA analysis are no bigger than old photocopiers. When they're done, the DNA markers are uploaded to the FBI's National Database. The card goes into a file cabinet.
(SOUNDBITE OF MACHINERY)
PRANGER: And we can put your DNA in the database, if you want
KASTE: That's all right, no I...
Pranger's DNA is in the system, as is that of all the lab employees, frequent visitors, and even the janitors. They're on file in case of cross-contamination around. But around here, having your DNA in the database is no big deal. And that's certainly the attitude of law enforcement.
DAN SATTERBERG: It is not an intrusive thing.
KASTE: This is King County prosecuting attorney Dan Satterberg, testifying in January in favor of pre-conviction sampling.
SATTERBERG: I don't know that a person has any more expectation of privacy in the DNA profile than they do in the whorls and loops and arches and ridges of your fingerprints.
KASTE: But the fingerprint analogy is rejected by those who are fighting the expansion, like the ACLU's Shankar Narayan.
SHANKAR NARAYAN: DNA goes far beyond mere identification. It's actually a catalogue of an individual's most private biological information.
KASTE: To be clear, that biological information is not going into the FBI's database. The computers get only a tiny sampling of genetic information, usually 13 markers. The most you can do with a computer search is match one sample to another, determine the person's sex and sometimes point to possible relatives. For anything more detailed, you have to go back to the biological samples - the white gunk in the file cabinets.
Still, Narayan says that when it comes to government databases, you have to worry about mission creep.
NARAYAN: If they're really serious about this being just about the 13 markers, then the biological sample should be destroyed once those 13 markers are uploaded.
KASTE: The Supreme Court has yet to make a definitive ruling on this. Some legal scholars say it's a search under the Fourth Amendment, and police should get a warrant before they get out the cotton swabs. But others wonder whether it might be better just to put everybody in the database and be done with it.
ERIN MURPHY: I'm very torn about whether that's the solution.
KASTE: Erin Murphy specializes in DNA at New York University Law School.
MURPHY: I prefer it, I have to be honest, to this kind of mindless expansion - the road of mindless expansion that we seem to be on now. I think that if everyone were in it, it'd be far more likely we would have better quality control, and we would have better oversight, and we would have better information about how the database is actually used. On the flip side, you know, it would be a massive shift in the relationship between the people of this country and their government.
KASTE: For now, the growth of the national database has been slowed by money troubles in the states. Just last year, the legislature in Maine voted to expand DNA collection, but the law was never implemented for lack of funding. And the DNA testing bill in Washington State is now also on hold in an atmosphere of severe belt-tightening. But the tough times won't last forever, and advocates promise to keep fighting to expand the list of states that take DNA at arrest. Martin Kaste, NPR News, Seattle.