The newest trend in DNA-database searching exacerbates the discrimination problem. In the past, when a crime-scene sample failed to match any record in a database, investigators were stymied. Recently, however, they have begun exploring an alternative in such cases: search the DNA database again, looking for close matches. A near-match profile will not be that of the perpetrator, but it may belong to a close relative. The authorities can then investigate other family members. Crime investigators have used so-called low stringency or familial searches successfully in the UK, Canada, and the United States.
The legal issues surrounding familial searching are tricky, especially when combined with the practice of surreptitious seizure of ”abandoned” DNA samples from cigarette butts, soda cans, and other discarded objects. In the notorious Bind, Torture, Kill serial-murder case in Wichita, Kan., investigators obtained DNA from a tissue sample gathered for medical purposes from the daughter of the suspect, to avoid alerting him that he was under investigation. No significant constitutional barriers to such actions exist.
But familial searching also raises policy issues. A slight brush with the law that does not result in a criminal conviction puts not only the arrested individual but also effectively the person's entire family into the database. The individual's diminished privacy ripples through the family.
Today, DNA-database systems routinely search newly recovered crime-scene samples against the entire existing database. So the legal system subjects individuals and their families daily to suspicionless searches. In a society in which young black males in some neighborhoods have a one-in-three probability of ending up in state custody at some time in their lives (and an even higher chance of getting an arrest record), the racial overtones of such a practice are dramatic.
Experts debate whether familial searching is reasonable. At a 2006 symposium in Boston on forensic DNA, sponsored by the American Society of Law, Medicine, and Ethics, Harvard scholars Frederick Bieber and David Lazer said that after having initially been skeptical of familial searching, they concluded from their research that the potential benefit to society in crime control outweighs privacy concerns. But an interdisciplinary team from Stanford led by law Professor Henry Greely concluded that familial searching is ethically questionable, stating that ”the way that familial forensic DNA puts African-Americans under much greater investigative scrutiny may not be unconstitutional, but seems unfair and quite possibly unwise.”
With experts voicing such concerns , why have so many jurisdictions opted for arrestee databases? The answer seems both obvious and troubling: the databases are popular with voters who see them as tracking people other than themselves.
Essentially voters are willing to legislate away the privacy rights of others--especially those they stereotype as potentially dangerous, such as racial minorities, the poor, and residents of economically disadvantaged neighborhoods--but are much more protective of what they perceive to be their own constitutional guarantees. This dichotomy is reflected in the U.S. government's 1940s decisions to reject universal fingerprint databases but allow law-enforcement agencies to maintain fingerprint records in arrestee databases.
Some scholars have decided that there is no longer any alternative than to propose what many would have previously considered unthinkable: a universal DNA database. Alec Jeffreys himself, the University of Leicester, England, geneticist who developed the earliest method of DNA profiling, has now declared that the existing UK database is racially discriminatory, and he has espoused an all-inclusive database as a solution. Jeffreys also proposed that the judicial system use DNA matches for investigative purposes only. That is, DNA would provide leads that would have to be corroborated by other evidence, and courts would never use DNA as evidence. Several American legal scholars, including Kaye, Smith, and Akhil Reed Amar, a Yale law professor, have also advocated for a universal database as the antidote to the discriminatory nature of existing arrangements. And in 2005, Portugal announced its intention to become the first country to include its entire population in its database of DNA profiles.
A universal database , on the surface, has a certain egalitarian appeal. Rather than those stigmatized by an arrest record being disproportionately burdened, all members of society who benefit from the database would bear the associated risks, including the release of sensitive personal information and repercussions from laboratory errors.
Another attractive aspect of the universal-database proposal is that it would engender a more honest appraisal of the risks of government genetic databases. Consideration of a universal database shifts the debate from being about whether other people's privacy rights are worth protecting to being about whether everyone's are. If voters and legislators aren't worried about the misuse of genetic information in a state-run database, let them be the first to offer their samples to it. Such voluntary contributions are rare, although in 1999, British Prime Minister Tony Blair provided his own DNA for the UK's database.
The egalitarianism of the universal database, however, may be a mirage. The facts that have led some scholars to embrace a universal database in the first place--such as discriminatory arrest practices--would not change with the advent of a universal database. In DNA and the Criminal Justice System , sociology professor Troy Duster of New York University writes, ”If the lens of the criminal justice system is focused almost entirely on one part of the population for a certain kind of activity (drug-related, street crime), and ignores a parallel kind of crime (fraternity cocaine sales a few miles away), then even if the fraternity members' DNA are in the data bank, they will not be subject to the same level of matching. That is, if the police are not stopping to arrest the fraternity members, it does not matter whether their DNA is in a national database, because they are not criminalized by the selective aim of the artillery of the criminal justice system.”
The police would still target racial minorities, the poor, and residents of disadvantaged neighborhoods differently, Duster argues, only the still-discriminatory police would have more powerful tools in hand.
Although the DNA-database debate will probably occupy judges, legal scholars, and legislators for some time, the most likely outcome is the least equitable--including only arrestees.
Indeed, if policy-makers were purposefully trying to find the most discriminatory system possible, an arrestee database would be the ideal choice. If an arrestee database is the least equitable solution, we are left with only two reasonable alternatives: a convict database or a universal database. The decision between those two alternatives depends on how much people trust their governments. But the merit of such a debate would be that it would not be about ”other people's” DNA but about our own.
About the Author
Simon A. Cole is an associate professor of criminology, law, and society at the University of California, Irvine.
To Probe Further
A special issue of the Journal of Law, Medicine & Ethics —Vol. 34, Issue 2, 2006—explores DNA and civil liberties in depth.
Simon A. Cole addresses this topic with coauthors Michael Lynch, Ruth McNally, and Kathleen Jordan in a forthcoming book, The Contentious History of DNA Fingerprinting (University of Chicago Press). Other works on the subject include DNA and the Criminal Justice System , edited by David Lazer (MIT Press, 2004); Forensic Identification and Criminal Justice , by Carole McCartney (Willan, 2006); and DNA Profiling, Science, Law, and Controversy in the American Criminal Justice System , by Jay D. Aronson (Rutgers University Press, 2007).
The American Society of Law, Medicine, and Ethics has a project on DNA fingerprinting and civil liberties and an extensive Web resource at http://www.aslme.org/dna_04.
Excellent background material on this issue in the UK is in a Wellcome Trust report by Robin Williams, Paul Johnson, and Paul Martin, Genetic Information & Crime Investigation (2004), available at http://www.dur.ac.uk/resources/sass/sociology.