Download DNA Fingerprinting and Civil Liberties

SYMPOSIUM
introduction
DNA Fingerprinting and
Civil Liberties
Alice A. Noble
T
he collection, retention, and use of forensic DNA
has led to the rapid development of associated
law and criminal justice practices. In a little
over twenty years, DNA evidence and the science and
technology undergirding it have become highly valued
instruments in solving crime, convicting criminals, and
exonerating the innocent. Questions of admissibility
have largely been resolved with the adoption of rigorous standards for DNA analysis. State legislatures and
Congress have answered these developments with incremental expansion of DNA databases. From an intial
focus on felony sex offenses in the 1990s, there are now
over forty states that collect DNA samples from all felons, while four states and the federal government permit inclusion of DNA profiles from certain arrestees.
There has been concern, however, that technological
and legal developments have outpaced measured consideration of the ethical, legal and social implications
of this growing reservoir of genetic information and its
uses. This symposium is designed to fill that gap, providing a balanced assessment of current policies and
practices as well as an invaluable source of guidance
for the development of future policies. The articles in
this symposium were commissioned from national
and international experts who represent wide-ranging
viewpoints and experiences. The topics they address
include privacy, database expansion, racial ethnic justice, forensic science and use of DNA in the courtroom,
DNA sample retention after profiling, and secondary
uses of DNA samples. This edition also represents the
first detailed exploration of a number of topics, including the efficacy of DNA databases and DNA database
searching for family relationships. The symposium has
application to non-forensic uses of DNA, as it considers allowable secondary uses of biological samples.
The following sections summarize the articles in this
special edition.
Alice A. Noble, J.D., M.P.H., is the Senior Health Law and
Policy Analyst at the American Society of Law, Medicine &
Ethics and is a member of the faculties of Boston College Law
School and Brandeis University.
149
Risks to Privacy
The special edition opens with a broad assessment of
the impact of the expanding DNA databases on civil
liberties by Mark Rothstein and Meghan Talbott. Few
would argue with Rothstein and Talbott’s observation
that we are entering the second stage of DNA forensics;
a stage, the authors note, that could usher in a population-wide repository. Standing at a crossroads, this is
an opportune time to assess the risks and benefits of
our expanding regime of DNA testing and databasing
to determine the wisdom of continued expansion in
view of risks to privacy. In addition to the expanded
inclusion criteria within database legislation, the authors examine expanding uses and consider the privacy
implications of DNA in dragnets, familial and personal
searches, as well as the expanded number of retained
samples, and the secondary uses, such as genetic research, to which these samples may be put. The authors
conclude that database inclusion and sample retention
should be limited to individuals with prior convictions
or against whom probable cause exists.
Further commentary on these issues is provided by
other symposium authors. Frederick R. Bieber develops Rothstein and Talbott’s concerns regarding the
dearth of scientific, peer-reviewed data gauging the
overall effectiveness of DNA databases in either crime
prevention or solving. Both Bieber and Rothstein and
Talbott point out the short-comings of the number of
“cold hits” and “investigations aided” as measures of
database effectiveness. In a thoughtful analysis of these
and other potential measures, Bieber proposes a new
methodology in measuring effectiveness. Of course, no
one can doubt the power of DNA to aid the criminal
justice system. However, more robust measures of effectiveness, such as those advocated by Bieber, would
allow us to gauge the value of database expansion, prioritize the backlog of DNA evidence, and – significantly
– more precisely weigh the benefit against any burden
on civil liberties.
Privacy concerns over DNA databases have led to
numerous court challenges based on claims that compelled collection of DNA for inclusion in the database
journal of law, medicine & ethics
Alice A. Noble
violates the Fourth Amendment requirements of a
valid search and seizure. While none of these have
been successful on appeal, the Supreme Court has yet
to weigh in on the subject. In separate articles, Tracey
Maclin and David H. Kaye provide contrasting views
on the constitutionality of laws authorizing the collection of DNA from individuals prior to conviction.
Although Maclin argues that, under current Supreme
Court precedent, such laws should be declared unconstitutional, he is not convinced that the Supreme
Court would so hold. Kaye, in contrast, proposes that a
principled interpretation of jurisprudence in this area
would allow for a specific and limited exception to
the Fourth Amendment warrant requirement, which
he terms the “biometric identification exception,” an
exception encompassing DNA collected upon arrest
under applicable law. The analyses of Maclin and Kaye
take on added significance as states and the federal
government broaden database inclusion criteria, making it more likely that the Supreme Court will play a
role in the resolution of this issue.
In a related article, Tania Simoncelli and Barry Steinhardt offer a detailed critique of California Proposition
69, passed by voter referendum in 2004. The act permits the inclusion of arrestee profiles in the database.
The authors argue that this expansion poses “tremendous threats to civil liberties and social justice” while
failing in its primary goal of increased public safety.
An interesting contrast to the views of Simoncelli and
Steinhardt is the communitarian approach espoused
by Amitai Etzioni. Etzioni considers DNA tests and databases as both highly intrusive and as making a major
contribution to the common good, and suggests that a
promising approach to a balanced employment of the
technology may be to focus on greater accountability
and oversight of those given authority over implementation of DNA technology within the criminal justice
system.
Familial Searching
The formerly little-discussed police practice of “familial searching” or “family forensic DNA” receives significant scholarly attention in this symposium. “Familial searching” occurs when crime scene DNA yields
a “partial match” to a profile in the offender database,
permitting the inference that the suspect may be a relative of the individual profiled. Robin Williams and Paul
Johnson laid the groundwork for a systematic consideration of familial searching with a case study of U.K.
police practices, reprinted here from an earlier edition
of JLME. Describing little-known police practices, the
authors demonstrate how increased inclusiveness can
challenge settled expectations of the appropriate use of
DNA in the forensic context, creating tensions between
dna fingerprinting & civil liberties • summer 2006
intrusiveness and inclusiveness, particularly with regard to the family unit.
Henry T. Greely and coauthors transport the issue of
what they term “family forensic DNA” to a U.S. context.
Their analysis of legal and policy implications concludes with an expression of concern that the implicit
expansion through “partial matches” would further
embed a disproportionate African American representation (currently forty percent) in the national DNA
database. They offer no solution to the issues raised,
but note that a universal DNA database would eliminate the racial bias of a large database enhanced by
“family forensic DNA” profiles.
The implementation of a universal DNA database
is controversial, and this symposium contains varied
perspectives on it. For example, in separate articles
Troy Duster and Rothstein and Talbott argue that this
will do little to improve police practices that created the
racially disproportionate database in the first instance,
while Michael Smith, discussed below, argues in favor
of a universal database as long as the genetic sample is
destroyed. Erica Haimes imports insights from family
and kinship studies to the evaluation of social and ethical aspects of familial searching. Articles by Rothstein
and Talbott, Bieber, and Duster also contain insights on
the issue of familial searching. These articles go far in
beginning an important public dialogue on this practice and its potential expansion of DNA databases.
Racial Ethnic Justice
DNA fingerprinting holds special concern for racial
ethnic minorities, particularly the African-American,
Latino and Native American people. Pilar Ossorio employs both science and ethics in her consideration of
forensic genetic testing for race and visible traits. She
argues that race is a social construct and as such race
is not discernible from our DNA, and describes this
and other common misunderstandings about race and
genetics held by scientists. Ossorio goes on to consider
ethical issues arising out of police uses of trait-genetic
testing to infer race and appearance, focusing on the
potential impact of such technologies on racial justice
and privacy.
Troy Duster’s eloquent explication of differential
trust of DNA forensic technology among majority and
minority communities amplifies the ethical issues of
concern to Ossorio. Duster invites the reader to “stand”
where the African American and Latino stand to better understand what it is they “see” in the application
of DNA forensic technology to crime fighting within
their communities. Duster describes the context within
which minorities experience and form opinions of the
application of DNA technologies – from police framing
scandals, DNA lab errors, racialized DNA dragnets,
150
SYMPOSIUM
ambiguous standards for familial searching, and what
he terms the “inevitable expansion” of already racially
skewed DNA databases. Mervyn Tano describes the
results of a series of discursive dialogues on the relationship between native peoples, genetic research,
and the landscape. Both Tano and Duster explain the
perspective of these minority populations, allowing a
deeper appreciation of the significant issues of trust
that may limit willingness to embrace DNA research
and technology.
scientific evidence on genes and anti-social behavior
sufficient to support legislation or judicial determinations does not currently exist. They anticipate, however, that attempts will be made to use genetic evidence
of anti-social behavior in the courtroom. The authors
suggest that should there be such attempts to admit
genetic findings allegedly predictive of anti-social behavior into court, that court-appointed experts be consulted on a case-by-case basis so that any determinations be both fair and scientifically justified.
DNA in the Courtroom
Secondary Uses of Biological Samples
Paul Giannelli notes that the introduction of DNA evidence and the successful science-based challenges to
its introduction are one of three developments in the
1990s that raised awareness of the need for improved
standards for the analysis of DNA samples, specifically,
and more generally for higher scientific standards for
the practice of forensic science. The impact of Daubert
v. Merrell Dow Pharmaceuticals, as well as highly publicized laboratory scandals, also highlighted the need
for reform. Giannelli details an agenda for reforms in
the area of crime lab regulations and court procedures
with a goal toward harnessing the power of forensic
science to aid in the search for truth.
Along with Giannelli, Margaret Berger, whose article
traces the impact of postconviction exoneration on the
criminal justice system, notes that the introduction of
DNA evidence improved standards for DNA testing
and analysis, as well as standards for the practice of
forensic science in general. Berger discusses the impact
of DNA-based exonerations on death penalty legislation, and on the legal landscape generally through new
statutes authorizing postconviction review. Berger offers the unsettling observation that exonerations themselves have taught us that all manner of non-biological
evidence assumed to be reliable may, in fact, be suspect.
Sheila Jasanoff considers claims about the reliability
of DNA evidence itself from a sociological perspective.
She counsels, relying on both empirical and ethical
arguments, against considering science, and the science of DNA identification in particular, as infallible.
Within the context of the legal system, Jasanoff considers science as “just evidence,” and argues that the
appropriate inquiry is not whether DNA profiling can
in theory provide unambiguous proofs of identity, but
whether society is capable of generating DNA evidence
that is free from bias and error.
Gregory Carey and Irving Gottesman consider DNA
evidence of a different – and more controversial – nature. They explore in some detail, and in a manner accessible to the non-scientist, the relationship between
genes and anti-social behavior. They conclude that firm
Secondary uses of archived biological samples pose a
number of ethical and legal challenges in both medical
and forensic contexts. Bartha Knoppers, Madeleine
Saginur, and Howard Cash examine the question of
secondary uses of samples collected for identification
purposes following mass disasters, both of natural and
“man-made” causes. These authors describe existing
international policy documents, legislation, and instruments on research ethics and derive a suggested regime
permitting limited use of such samples consistent with
proffered guidelines.
David Lazer and Viktor Mayer-Schonberger discuss
three statutory regimes authorizing the government to
collect private data from citizens: fingerprint, Department of Motor Vehicles, and tax data, and compares
these regimes to that of the regulation of government
DNA banks. Focusing on the privacy risks of secondary
research uses of compelled DNA samples from which
DNA profiles have been derived, the authors borrow
lessons from the studied regimes and note that such
risks may be reduced through “hard-wiring,” such as
the destruction of DNA samples from which profiles
are taken, or the adoption of “speed-bumps,” which
would place administrative or judicial barriers in the
way of access to information deserving of privacy protections.
151
Perspectives
Retention of DNA Samples
The commentaries by R. E. Gaensslen and Dawn
Herkenham offer contrasting perspectives on the question: Should DNA samples collected for criminal justice purposes be retained after a DNA profile has been
obtained from it and entered in the DNA database?
Gaensslen responds that because state laws are ambiguous or even silent on the issue of secondary uses of
genetic samples, and rapidly evolving technologies will
potentially be capable of extracting information about
how a person looks, health/disease status, and even
about relatives, samples should not be retained except under narrow legislatively-stipulated conditions.
Dawn Herkenham adds to the debate by presenting
journal of law, medicine & ethics
Alice A. Noble
background information, detailing the reasons that
have been offered in support of sample retention, and
comments on protections and safeguards currently in
place for the protection of the offender DNA samples.
Universal Forensic DNA Database
In four states and at the federal level, inclusion criteria
for forensic DNA databases have been expanded to
include certain arrestees. Commentaries by Michael
E. Smith and Tania Simoncelli offer contrasting perspectives on whether the movement toward increased
inclusion should continue, or criteria for inclusion be
limited to convicted felons. Smith argues that the more
inclusive the DNA databases, the more useful it is to
identify perpetrators, as well as to eliminate suspects
who cannot be linked to the crime. Assuming that the
Fourth Amendment does not bar broader inclusiveness, which Smith opines is likely given current case
law on the subject, a universal database will continue
to expand in a less-than-thoughtful manner. Thus,
Smith urges the design and building of a universal database of digitized DNA profiles, with privacy protections including mandated destruction of the biological
samples. Citing concerns about privacy, the risk of racial polarization due to overrepresentation of African
Americans in the database, and concomitant damage
to the legitimacy of criminal law and law enforcement,
Smith argues for a thoughtful, proactive approach to
database expansion, and that the immediate destruction of DNA samples is needed.
Simoncelli opposes a universal database, while sharing Smith’s position in favor of sample destruction as
the only sure way to protect individual privacy. With
regard to racial disparity in the database, Simoncelli
notes that a universal system will have no bearing on
who is targeted for investigation and arrest. In the article Simoncelli identifies key grounds militating against
expansion of DNA data banks to include samples from
any category of innocent persons. Simoncelli bases this
opposition on matters of principle, legality, and practicality.
Rights of Donors to Control and Ownership of Tissue
Specimens for Research
As forensic databases expand and biological samples
continue to be retained, lessons from medical uses of
biological samples will continue to be of interest in
developing legal and ethical constructs concerning
secondary uses of samples. The commentaries by Lori
Andrews and Sharon F. and Patrick F. Terry offer two
perspectives on the rights of donors to control and ownership of tissue specimens used for research purposes.
dna fingerprinting & civil liberties • summer 2006
Lori Andrews provides the reader a rare glimpse into
the litigation process of the case of Washington University v. Catalona, a dispute between the University and
Dr. Catalona, a prostate cancer researcher, as to ownership of patient samples donated for research purposes
upon the departure of Dr. Catalona and his research
program from the University. Andrews presents the
perspective and legal arguments of the patients of Dr.
Catalona, who advocate transferring their samples to
Dr. Catalona at his current research institute. Andrews
describes the significance of the case by noting that the
answer to the question of who owns the samples will
determine the extent to which people can direct what
is done with their tissue outside of their body.
Terry and Terry, drawing from their experiences as
parents of children diagnosed with a genetic disease,
likewise underscore the value of a consumer perspective, noting that individuals affected by the outcomes
of genetic research are stakeholders that must have a
voice in determining use of DNA samples. The authors
describe the process of community engagement as developed by the Terrys, and exemplified in the formation
of two biobanks, PXE International and The Genetic
Alliance BioBank.
Concluding Thoughts
Recently, Congress passed The DNA Fingerprint Act of
2005, expanding inclusion criteria for DNA databanks
to all those arrested for certain federal offenses, and
for detainees in the case of non-U.S. persons. The Act
also permits expanded inclusion of DNA profiles collected at the state level into the Combined DNA Index
System (CODIS). The wisdom of this Act is not at issue
here. What is noted is the fact that no public hearing
was held prior to its passage. Full public engagement
in debating the ethical, legal and social implications of
forensic DNA profiling is essential for protecting the
public’s interest in a system of justice that strikes an
appropriate balance between public safety and civil
liberties. As we embark on this second stage of forensic DNA profiling, it is in everyone’s interest that an
informed, thoughtful and critical public keeps pace
with key developments. Hopefully, this symposium,
and you, the reader, will play a role in this important
endeavor.
Acknowledgements
This special issue would not have been possible without the work of
a dedicated set of peer reviewers. I am grateful for their contributions. This symposium edition was supported by funding from NIH
(R01-HG002836).
152