Somehow this 2004 article about rape and DNA testing was never published. It was originally prompted by a report from the US Attorney General on the backlog of DNA evidence in the USA.
It seemed at the time to chime with the unfolding missed opportunities leading up to 9/11 and the bungling of foreign policy following that date. In particular, the realisation that despite size and resources, ambitions and targets were being thwarted. The Attorney General’s ‘Introduction’ to the report captures the essence:
- On August 21, 2001, Attorney General John Ashcroft directed the National Institute of Justice (NIJ) to assess the existing delays of crime scene DNA evidence and develop recommendations to eliminate those delays. Specifically, the Attorney General requested that the assessment and recommendations address, among other matters: (1) resource requirements for laboratory equipment; (2) resource, training, and education requirements for laboratory personnel; and (3) the use of innovative technologies that could permit speedier analysis with smaller equipment. He also directed NIJ to make recommendations for a national [ and to eliminate the unacceptable delays]. In response to this direction, NIJ convened a task force comprising a broad cross-section of criminal justice and forensic science experts. At these [2001- 2002] meetings, the task force and NIJ staff discussed the nature and the causes of those DNA backlogs, and possible strategies for reducing the backlogs. (ref: http://www.ojp.usdoj.gov/nij/pdf/dna_studyreport_final.pdf . Dec 12th 2003).
Now almost 10 years on it is worth while looking back at the road we have journeyed down; what has taken place and what developments have been ‘normalised’ into our lives.
When CSI Miami is but a distant dream
By Robert Whiston, FRSA, April 16th 2004
America, in an election year, may be on the brink of a crisis. Not a crisis far away in the Middle East but one very much of a domestic nature. While the present on-going Senate Commission into terrorism, and the disaster of Sept 11th, reveals embarrassing shortfalls in governmental measures to protect its citizens, it does not equip and arm the nation for the future.
Worthy though the Commission may be, it is essentially looking backwards and has not noticed that there is an as yet unrecognised additional dimension. Latest figures from National Institute of Justice (NIJ) show that America’s ability to solve internal crime is in serious jeopardy.  Therefore, additional demands made by Homeland Security measures will only exacerbate an increasingly deteriorating situation.
The report, sponsored by the NIJ, draws attention to the malaise within the system of the administration charged with implementing DNA testing. It states that the capabilities of state funded DNA crime laboratories are being compromised at local and federal level by serious shortages of both funds and trained staff. The consequence is a huge backlog of over half a million cases awaiting DNA determination.
The average waiting time for a DNA result is measured in months not days, as in England.
Even where specially prepared “rape kits” are used the NIJ states that the processing times at crime laboratories “pose significant delays in many jurisdictions”, with State laboratories taking on average of 23.9 weeks to process an unnamed suspect and local laboratories average 30 weeks for a similar test. This compares with 30 days in England
This under-resourcing impacts on both the guilty and the innocent as they await the DNA results that will either set them free or set a trial date. It may also hamper rapid reaction to terrorist outbursts.
Most state crime laboratories report that while federal funding has played an important role in assisting them with backlogged DNA cases, the proportion funded through federal sources of their overall DNA work is minimal
DNA determination is a major plank in any crime fighting effort. Yet a staggering 80% of State crime laboratories receive 50% or less of their funding from federal sources. That figure falls to only 4.5% at the local laboratory level.
Summing up the situation the report states “ The role of the federal government in funding forensic DNA analysis has been, up to this point, important but rather minimal.”
The backlog, and the lack of well paid staff, has awesome terrorist implications. If America is to get to grips with terrorism it must do so in every state. It must have the ability for each state to operate independently and efficiently to detect and identify DNA samples. It must have the ability to grow its capacity by sharing sample bases and utilise inter-state co-operation.
DNA, together with other measure such as fingerprints left on driving licences and of common place items such as cutlery and plates, can be the can-opener when teasing out Al-Quieda cells.
How can they be expected to play a positive role in Bush’s global War on Terrorism ? America, if under-resourced and unsynchronised, must brace itself for what may be, at worst, a thirty year campaign, and at best a ten year one. This campaign, unlike the War on Narcotics, allows the combatant, ie the US administration, no room for slippage and no second chances.
In recent years forensic DNA evidence has been increasingly used by agencies and players in the criminal justice arena. Cases that previously would have been deemed impregnable have been defeated by science.
However, this new technology, that holds the allure of solving all difficult cases, carries it’s own seeds of destruction. The wealth of opportunities it creates means that law enforcement agencies resort to its use not only for existing cases but for re-opening and solving old ones. But supply cannot meet present demand.
Paradoxically, the US Attorney General’s report about the backlog in DNA evidence, found that this miserable situation is compounded by their observation that staff and police officers are still largely ignorant of the full potential benefits that DNA testing can provide. It expresses concern about the casual way DNA samples are stored in situations that aids their deterioration and increases the risk of cross contamination, e.g. 3 summer days in a squad car’s boot [ trunk, US ? ].
The report cites the widespread use of DNA testing in England as a case in point. Unlike many US states, England does not restrict the taking of DNA samples from offenders who have been found guilty of a capital crime or sexual offence.  As a result the DNA database is far larger, as a proportion of the population that the US, and is an effective crime fighting tool in all lesser categories of crime from street mugging to burglary. In fact, it is the cross-connectivity between one category of crime, say a motoring offence or grievous assault, that can lead to a convictions in another category, e.g. for bomb making or rape. 
The following newspaper extract is an example of how this worked in an actual case in England : –
- A relative of Craig Harman inadvertently led police to their man after officers used pioneering DNA techniques. Craig Harman was jailed in April 2004 for killing lorry driver Michael Little. Mr Little died in March 2003 as he drove his vehicle on the M3 in Surrey. A brick thrown from a footbridge above the motorway crashed through the lorry’s screen causing him to suffer a fatal heart attack. The DNA profile from the brick found in the lorry’s [ rig, US] cab was checked against the national database, but because Harman did not have a criminal record no match came up. It was then decided to use the intelligence-led DNA screening and familial searching facility of the Forensic Science Service. Using this new technique, 25 people with similar DNA were located and Harman’s relative was top of the list. Harman was then caught after giving a DNA sample, which matched exactly.
- Detective Chief Inspector Graham Hill said: “There is no doubt in my mind that without this groundbreaking technique and the Forensic Science Service, this crime would have remained undetected.” The service will now be used by other police forces, which will have to pay £5,000 a time to the Forensic Science Service.
The overwhelming modus operandi in the US is to restrict DNA sampling and database compilation to instances of homicide or rapes.
Britain, with a population of 58m, has DNA profiles of some 2m offenders on file. The US, with a population of 258m, has only 1.3m offenders on DNA files. The NIJ concludes that this is a major contributing factor for the greater detection rates in Britain.
This, the Attorney General’s report believes, is a mistake, and it is a mistake that has terrorist implications, as can be seen from the Craig Harman example above. The report essentially provides a breakdown of the analysis of the 4,092 DNA databases and their associated “hits” in 38 states.
The majority of database hits have linked repeat offenders to violent crimes. By way of example, it discloses that for several years the Virginia Division of Forensic Science has reported that more than 80% of the hits on the state’s DNA database would have been missed if the database had been limited to only violent offenders.
Addendum – This contrasts with the British experience where despite a larger DNA data base than the US the number of DNA matches is embarrassingly small. The UK DNA database is involved in solving only 0.67 per cent of crimes (http://www.straightstatistics.org/article/dna-retention-analysis-published-last Jan 2010 and Sept 2011).
It is the number of successful ‘hits’ that reconnects our attention of the terrorist implication. America’s scope of action is restricted by having a slow, creaking system burdened by increased demand yet with no corresponding increase in resources.
All the airport security in the world will not help track down terrorist sleeper cells firmly ensconced within the borders of mainland America. But DNA will.
Depth of Problem
The NIJ study brings a scientific rigour to a question that has increasingly occupied public debate in both law enforcement and public policy circles.
In the NIJ survey almost all DNA facilities in the USA were contacted. The researchers found that the total backlog of crime cases with possible biological evidence either still in the possession of local law enforcement, or backlogged at forensic laboratories was over half a million (542,700).
Specifically, the number of rape and homicide cases with possible biological evidence which local law enforcement agencies have not submitted to a laboratory for analysis was over 221,000.
The number of property crime cases with possible biological evidence which local law enforcement agencies have not submitted to a laboratory for analysis is over 264,000.
- Homicide cases – 52,000 (approximate)
- Rape cases – 169,000 (approximate)
- Property crime – 264,000 (approximate)
The number of unanalysed DNA cases reported by State and local crime laboratories is more than 57,000.
- State laboratories – 34,700 cases (approximate)
- Local laboratories – 22,600 cases (approximate
The report puts emphasis, perhaps unnecessarily in the opinion of some, on the cost benefit ratio of a speedier DNA testing regime.
However, the revealed cost of ‘rape testing kits’ is interesting. The average cost was estimated at over $1,000 per kit to process, per case. This does not compare favourably with DNA ‘paternity testing kits’, which cost around $400 per kit and are usually undertaken by private companies. This is particularly so when ‘economies of scale’ are considered. One would expect that with far more price negotiating power being wielded by Gov’t agencies and with possibly less of a demand for paternity testing kits, that the costs to be lower.
Table 4.12. Average cost of rape kit analysis and frequency that factors associated with costs were included in the estimate.
- Local Laboratories – $1,153.95
- State Laboratories – $1,041.27
Source: “Attorney General’s Report on the DNA Evidence Backlog”, http://www.ojp.usdoj.gov/nij/pdf/dna_studyreport_final.pdf .
Both State and local crime laboratories are overworked, understaffed, and insufficiently funded. They reported that personnel needs were among the most significant concerns for their DNA programmes. Specifically, most crime laboratories expressed the need for supplemental funding for additional DNA staff; several laboratories indicated that their priority concern was for additional funding to augment current salaries to avoid the loss of skilled personnel to other prospective employers. A strong need was also reported for reagents (chemicals used in DNA analysis) and for technical equipment used for DNA analysis.
Methodology and Scope.
The methodology adopted by the report included all state and local forensic DNA laboratories. For the purposes of the study, the term “local” laboratory(ies) was defined as including those laboratories serving city, county or regional jurisdictions. Responses were obtained from 50 state laboratories and 70 local laboratories across the country. This level of response thereby provides an overwhelming confidence in the analysis conducted using the data provided by these laboratories.
Steps were taken to involve the large number of local law enforcement agencies in the country of between 15,000, and 18,000. This figure varied depending upon the inclusion or exclusion of “special police” agencies such as the U.S. Border Patrol, airport police, etc. The study design called for the development of a law enforcement agency sampling protocol. All police agencies with over 100 commissioned officers (both Sheriff and municipal police agencies) were also included.
Managing the expansion.
The DNA database system in the US would need to reach almost ten million profiles to achieve a similar percentage of the total population as seen in England.
To reach this level would require monetary investment, and human endeavour simply to catch up. State crime laboratories estimated that an expanded DNA database statute would add a combined total of 2,281,000 offender profiles in the first year, with an annual rate of 504,484 additional profiles in future years.
However, adopting some procedural changes would readily ameliorate the exposure to rising costs felt by hard-pressed budgets. Significantly, it has been the custom in the US to gain DNA samples from offenders at a time close to their release (72 percent). The British method is to DNA test offenders at the time of, or shortly after, sentencing. This small difference has huge gains.
It allows police agencies to crosscheck other cases ensuring that a previously unsolved crime can be allocated by means of DNA matching. It gives an opportunity to decide whether additional charges should be pursued while the offender is still in custody. Collecting DNA from offenders shortly after sentencing also allows sufficient time for the sample to be processed, even if there should be a backlog, long before an offender is released.
Another benefit would be the lifting of time pressure constraints from DNA testing staff and the enabling of an orderly build-up in staff numbers and staff competence.
The result of the present American regime in matching at the time of release, is that another rape or murder might be committed that could have been averted. In the latter pages of the Report many instances of this are given.
Other technical developments will lower unit costs. Over half of the state laboratories (52%) reported that they took blood samples from offenders as a means of recording DNA. This is invasive and blood collections require a trained phlebotomist. Buccal swabs (saliva and cells from inside the cheek), in contrast, can be accomplished easily with a minimal amount of training. The adoption of buccal sample swabs is therefore becoming more widespread.
Developments & limitations
The emergence of mitochondrial DNA Testing (or mtDNA) is another recent forensic breakthrough, though it does have limitations. Testing using the ‘mtDNA’ approach is particularly useful for evidence such as bone fragments and hair samples where nuclear DNA may not be present.
Testing of nuclear DNA, ie the ‘normal’ way, is by far the most common analysis conducted in the United States and in other countries. The test results measure the short tandem repeats (STR) of nuclear cells in DNA. Only two copies of nuclear DNA are present in human cells (one copy from the biological mother and one copy from the biological father), which means that a deterioration of the cell sample, or a sample that has only a few cells, may not be testable through STR analysis.
However, mtDNA testing is rather limited in criminal forensic identification applications. MtDNA is passed down through maternal lines, with all descendants in a given maternal line sharing the same mtDNA sequence. So, while mtDNA may conclusively prove that a particular person is related through maternal lineage to a specified woman, it does not serve the purpose of uniquely identifying the individual in question. Indeed, persons who would appear to be unrelated may in fact share a common maternal relative at some point in their lineage, and this would lead to the same mtDNA results. As a result, mtDNA testing can be used in criminal cases to positively include or exclude a person as a possible suspect, but does not provide the discriminatory power that the forensic community has come to expect from nuclear DNA analysis. MtDNA testing is also more labour intensive, and therefore considerably more expensive than nuclear DNA testing.
Nonetheless, in this battle it is a method that cannot be overlooked or under-funded. In the realm of mitochondrial DNA testing Britain can be said to be comparatively ahead in its application.
Options facing Bush administration
Today, every AmericanState has a DNA database statute that allows collection of DNA from specified offenders. This must be expanded to include all offences not just serious ones, as at present. This will inevitably upset civil rights activists and consternation to libertarians. There remains a propensity, in parallel with the Patriot Act, for the ill use of DNA. For it can be applied ill-advisedly in a draconian way (see Craig Harman, above). DNA searching can go both forward and backwards over the generations and across family linkages.
Today, every AmericanState is linked into CODIS. CODIS is a computer software programme that operates local, State, and national databases of DNA profiles from convicted offenders, unsolved crime scene evidence, and missing persons. Every State therefore must have the ability to interrogate the databases of other states including the FBI’s without administrative form filling delays.
CODIS has a demonstrable track record of success in the thousands of matches that have linked serial cases, and to cases that have subsequently been solved by matching crime scene evidence to known convicted offenders.
How much more successful this would be if significant investments were made in this area of forensic work ?
The cost benefits concerns mentioned in the Attorney General’s report are expressions of worry worthy of a civil servants mentality and are largely imaginary. The bottom line is the value we put on lives not the compensatory price we put on them when they are dead. The FBI, for instance, reports that the estimated dollar loss attributed to property crime (excluding arson) in the U.S. was $16.6 billion in 2001. The USA can easily afford to throw $16m at DNA infrastructure if it results in quicker detection of terrorists and better criminal law enforcement. Even if the cost were $216m it would still be essential.
From a public relations perspective, the spin off would be that the project of releasing wrongly convicted offenders would be boosted. Critics could be quietened were it to be shown that the “Innocence Project” where the advantages of DNA analysis leads to the release of those wrongfully convicted is accelerated and made comprehensive.
This is a redeeming feature sadly not found in the British use and application of DNA screening.
 “Attorney General’s Report on the DNA Evidence Backlog”, http://www.ojp.usdoj.gov/nij/pdf/dna_studyreport_final.pdf . Released April 6, 2004. Compiled Dec 12th 2003.
 Every State today has a DNA database statute that allows collection of DNA from specified offenders. All 50 States require DNA from sex offenders and murderers, and 46 States require DNA from all violent felony convictions (including assault and battery and robbery).
 “Killer caught by relative’s DNA”. http://news.bbc.co.uk/go/pr/fr/-/1/hi/england/3640199.stm