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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