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Coding for Race?
Ethical Implications of the “R-Word” In
Forensic Genetic Profiling
Pilar N. Ossorio
University of Wisconsin
Law School, Medical School
Outline
• A (Very) Brief History of Race
• Contemporary Race Theory &
Human Genetic Variation
• Ethical Implications of Forensic
Genetic Claims About Phenotype
and Ancestry
What is race?
“When we talk about the
concept of race, most people
believe that they know it
when they see it but arrive
at nothing short of confusion
when pressed to define it.”
Evelyn Brooks Higgenbothem
Evolution of Folk Concepts of Race
• European & English colonization &
conquest (16th to 19th Century)
• advent of consolidated social structures of
appropriation, exploitation and domination
• genocide for many indigenous/native peoples
• Spanish Inquisition: hereditary nature of social
status, Jewishness and Moorishness defined
through blood ties
• Rise of black slavery in the US—slavery and racial
prejudice continuously reinforced each other
Races as families or inbred lines
• 16th & 17th C: race used interchangeably with
type, variety, people, nation, generation &
species
• By the latter half of the 18th C race is strongly
equated with “breeding stock”
– Farmers and herders understand animal breeds as
highly inbred lineages with heritable characteristics
– Emphasizes innateness of characteristics
– Value judgments were and are critical to choosing the
reproducing members of a line of stock, because one
breeds for some specific, valued quality
» Audrey Smedley
» Race in North America, 1993
Formal Human Classification
Linneaus, Systemae Naturae, 1758
• Europeaeus
– White; muscular; hair – long, flowing;
eyes blue
• Americanus
– Reddish; erect; hair – black, straight, thick;
wide nostrils
• Asiaticus
– Sallow (yellow); hair black; eyes dark
• Africanus
– Black; hair – black, frizzled; skin silky; nose
flat; lips tumid
Race and Social Stratification
Linneaus (1758) Systemae Naturae
• Europeaeus (white)
– Acute, inventive, gentle, governed by laws
• Americanus (red)
– Obstinate, merry, free, regulated by custom
• Asiaticus (yellow)
– Haughty, avaricious, severe, ruled
by opinions
• Africanus (black)
– Crafty, indolent, negligent, governed
by caprice or the will of their masters
Folk Notions of Race
• Distinguishable,
nonoverlapping,
categories
• Distinct
essences
• Fixed & stable
(immutable)
• Natural
19th-20th Century Anthropology
• Folk and “scientific” notions of race begin to
diverge in the early 20th C
• Anthropologists and other scientists observed:
– clinal variation of measurable traits
– non-concordant variation of traits
– single African origin
• “The more traits you looked at, the more
races you could see.”
J Marks, Human Biodiversity, 1995
• Physical measurements do not identify distinct
categories of humans to correspond with
folk notions of race
Geography and Clinal variation
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1970-2000: Geneticists Rediscover
What Anthropologists Knew
• No dramatic genetic discontinuities
among humans
• Little genetic variation when compared
to other organisms  young species with
a single common origin in Africa
• Clinal variation, nonconcordant variation
• Far more within-group than betweengroup variation
Human Genetic Variation
• Humans are > 99% genetically alike
• Of the <1% variation
– ~85% is within any human population or
group (such as town/village/tribal or ethnic
group)
– ~10% is between any two groups, even
those that are geographically close
– ~5% is between geographically distant
groups such as two towns/villages from
different continents
Implications of High
Within-Group Variation
• No unifying genetic essence for people
of the same race
• People of the same race are not necessarily
“closely related” when compared to people of
different races
• the families metaphor
of race is misleading,
• the “breed” metaphor is inapposite
• People of Africa are the most genetically
diverse  although African Americans are the
most “raced” people socially, black is the least
coherent of genetic categories
Contemporary Scientific Controversy
• Abandon race as a variable in biomedical
research:
– “race has no biological basis” (Shwartz, NEJM,
2001)
– “race has no scientific basis” (Witzig, Annals of Int.
Med., 1996)
– use of race is “black box epidemiology”
that “seldom results in fundamental new
understandings of disease.” (Bhopal, BMJ, 1997)
– Use of race “lacks scientific validity” (Haga &
Venter, Science, 2003)
Contemporary Scientific Controversy
• Use race in biomedical research and clinical
practice:
– “DNAPrint Genomics and the Penn State University
have identified the world’s only race-determining set
of ancestral informative markers.” DNAPrint web site visited
June 9, 2003
– “… we demonstrate here that from both an objective
and scientific (genetic and epidemiologic) perspective
there is great validity in racial/ethnic selfcategorizations, both from the research and public
policy points of view.” Risch et al., Genomic Biology, 2002
Assumptions Behind the Race in
Science Controversy
• That the “reality” of race can be
adjudicated using genetic data
• If race is not “genetic” then it is not real
• Whether or not race is a valid category
for clinical research or health care
depends on whether or not race can be
defined genetically
A Way Out of the Binary Trap
• Races are not natural, genetic categories
• Race is, nonetheless, one of the most
significant social stratifying practices in
US society
• Race may be relevant in human biology
research even if racial categories are not
genetic or fixed, biological categories
Contemporary race theory
• Race is a 2nd order construct
– Race = beliefs about ancestry, nationality,
language(s)/accent, religion practiced, skin
color and other morphology
• Race is relational, created through our
interactions, which are based on and reinforce
our beliefs about ancestry, nationality…
• Fluid, historically and geographically continent
• Most significant and deeply rooted social
stratifying practice in the US
Fluid and Historically Contingent
• Who could naturalize in the US as a white
person?
• John Wigmore, 1894: Japanese are white
but Chinese are not!
– “Having as good a claim to the color ‘white’ as
the southern European and the Semitic
peoples, having today greater affinities with
us in culture and progress and the facility of
social amalgamation than they have with any
Asiatic people, isolated as they are today from
Asia in tendencies and sympathies…”
Fluid and Historically Contingent
• Naturalization: Terrace v Thompson, 274 F
841, 849(W.D. Wash. 1921)
– “It is obvious that the objection [to
naturalization of non-whites] by Congress is
not due to color, but only to color as evidence
of a type of civilization which it characterizes.
The yellow or bronze racial color is the
hallmark of Oriental despotisms… ”
Fluid and Historically Contingent
–Terrace cont.
“It was deemed that the subjects of these
despotisms, with their fixed and ingrained
pride in the type of their civilization, which
works for its welfare by subordinating the
individual to the personal authority of the
sovereign… were not fitted… to make for the
success of a republican form of Government.
Hence they were denied citizenship.”
Contemporary Example
• Dave Chapelle’s racial draft – a forum to
decide the race of mixed-race or racially
ambiguous celebrities:
– Blacks draft first, take: Collin Powell &
Tiger Woods
– Whites want to trade for Powell.
– Blacks agree to give Powell to whites for a
future pick, but only if the whites will take
Condoleeza Rice.
Racial Draft Cont.
– Whites trick blacks on next round,
whites agree to keep Eminem if blacks
take back OJ
– Latinos “waste” a pick, take Elian
Gonzalez to keep the whites from
getting him
– Asians take the Wu Tang Clan
– Jewish people take Whoopi Goldberg
& Lenny Kravitz.
Contemp example II
• Pharma phase III clinical trials:
people are assigned to different
racial groups in different parts of
the US.
Contemporary race theory
• Race is not equal
to ancestry
• Race is not equal to skin
color, eye shape, hair
texture or other
morphological characteristics
Forensic Genetics and Race
• Genetics can tell us something about the
ancestry of a DNA source (ancestry
informative markers = AIMS)
• Inferring morphology from ancestry is problematic!
• Genetics can tell us something about the
morphology of a DNA source (future!)
• Genetic testing does not disclose race,
although it can produce info from which
to infer race
Assessing Ethical Issues —
Social Context Matters
• Distinguish between “ancestry
informative markers” (AIMS) and
“morphology informative markers”
• Current trend towards genetic
determinism, excessive authority of
genetic information
• Some ancestries are more socially
desirable than others
Informational Privacy
• What interests are protected by
excluding others from our ancestry info?
– Prevent discrimination, stigmatization or
nepharious uses s/a frame ups (privacy as
an instrumental value)
– Personal and collective identity, shaping
the narrative of one’s life
• Right not to know?
– Interpersonal relationships
– Respect
• Cultural beliefs about group membership
and origins
Informational Privacy cont.
• To what extent can law-enforcement policy
respect privacy interests while still
achieving the goals of suspect profiling?
• Should law enforcement personnel disclose that
the profile was created through genetic testing
for AIMs?
• Should law enforcement personnel refrain from
using explicitly racial language in conjunction with
genetic profiles?
• Under what conditions do/should privacy interests
trump law enforcement justifications for using a
genetic profile (the rights discussion)?
Some justice questions
• Will forensic profiling with ancestry or
morphology informative markers increase
or decrease the focus of law enforcement
resources on people of some races as
compared to others?
– If “increase,” then does this mean that some
groups will bear an unfair proportion of the
burdens, harms or wrongs in return for
creating some quantum of public safety or
for achieving other penal goals?
Justice Questions cont.
• Spillover effects of the “scientific”
reinscription of 18th C racial
classifications…
– may be used to justify or exacerbate existing
racial inequalities, could increase the
burdens of those who are least well off
• Pat King, Dangers of Difference
Genetics and Race
• No genetic markers are only and always
found in people of one race and never in
people of others—no race defining alleles
• Much more within group variation than
between group variation
• Approx. 85-90% of human genetic variation is
found within any small human group
• Est. 7-15% btwn any two groups (within
continent)
• Only about 4-5% of variation is betweencontinent variation (see, e.g., Rosenberg et al.,
Science 2002)
Races and Ideal Types
“In the idealistic typological approach, every race
consists of members who possess
characteristics that are typical of that race but
different from those of all other races… and
each representative is separated
morphologically by a distinct gap from the
members of other races.”
• Bennett, 1969, Typological vs Evolutionary Appraoch in
Skeletal Population Studies, Am. J. Phys. Anthropology, 407415 at 413
Science and Race: Measurement
of Human Differences
• By the late 18th C assessments of race had turned from
a focus on human similarities to a focus on human
differences
• “The hallmark of anthropology in the 19th century was
anthropometry, and its primary objective was to clarify,
document and measure physical differences among
human groups.” Smedley, 1993
• “The belief in the Negro’s extinction became one of the
most pervasive ideas in American medical and
anthropological thought during the late 19th century.”
Haller, 1971, Outcasts From Evolution
Measuring human differences
•
•
•
•
Cephalic index
Phrenology
Prognathism
Photometer, color
standards
• Somatyping
• Pschometry
Measuring Race
• 4 human races (Linneaus, 1753)
• 5 human races (Blumenbach, 1781)
• 3 human races (Count Arturo de Gobineau,
Essay on the Inequality of the of the Human
Races, 1855)
• 25 races (Snyder, 1930)
• 5 races (Carleton Coon, 1962, The Origin of
Races)
• “The more traits you looked at, the more
races you could see.”
J Marks, Human Biodiversity, 1995
Evolution of Folk Concepts of Race
• Proto-race
– concept of distinctive human groups
– the “other” religiously or culturally defined
– goes back to biblical times (at least)