Genetic Justice

by Sheldon Krimsky

  As is discussed in chapter 6, within certain limits, U.S. courts have upheld methods of law-enforcement authorities in obtaining nonconsensual DNA samples without warrants. Sometimes police use a ruse to obtain a suspect’s DNA. Other times police investigators shadow an individual until they can retrieve a discarded object, including the individual’s sputum on the sidewalk, with the desired DNA sample. If DNA privacy is to make any sense, then we have to distinguish between the abandoned object and the information that can be deciphered by a technical expert in the DNA left on the discarded object. We should not lose our expectation of privacy for our DNA, even though we have given up the object carrying it.

  To date, no court has considered whether the initial collection of DNA or the subsequent use of familial searching violates the privacy interests of convicts’ family members, who have not forfeited their privacy rights. In the case of familial searching the identification and analysis of partial DNA matches broadens the scope of a DNA database, subjecting family members to genetic surveillance. This means that they are more likely to be suspected of a crime they did not commit. Whether the privacy interests of family members in these situations could rise to the level of constitutional protection seems uncertain, at best, particularly since—as in the case of surreptitious sampling—there is no initial physical intrusion associated with the search of the family member’s DNA.48

  Challenges for Privacy Advocates

  As discussed at the beginning of this chapter, there are significant differences between the ways in which genetic privacy is treated in the medical and research context and in the law-enforcement context. There is a growing consensus and near unanimity that, beyond the person’s caregivers, the privacy of an individual’s medical genetic information should be protected. Many states and the federal government have passed legislation that protects individuals from unauthorized access to and use of medical genetic information. Also, the confidentiality of genetic information, regardless of how it is obtained, is generally accepted among professional societies and bioethicists. The American Society of Human Genetics is on record stating that “genetic information, like all medical information, should be protected by the legal and ethical principle of confidentiality.”49 In a similar vein, bioethicist George Annas noted that “the DNA molecule itself can be viewed as a new form of medical record. It is a source of medical information, and like a personal medical record, it can be stored and accessed without the need to return to the person from whom the DNA was collected for authorization.”50

  However, the standards in forensics for protecting privacy are operating on a different playing field than those in the medical and research communities. While informed consent is the standard for the collection and storage of genetic information in the latter context, the law-enforcement situation can be seen as an evolving free-for-all, where DNA is starting to be collected almost at the whim of a given police officer.

  This bifurcated system is not unlike what is seen in the United Kingdom, although, interestingly, a new law in the United Kingdom prohibits non-law-enforcement agents from acquiring and analyzing a person’s DNA without consent (see box 14.4). The rationale for the law was articulated by Baroness Helena Kennedy, chairperson of the United Kingdom’s Human Genetics Commission:

  Until now there has been nothing to stop an unscrupulous person, perhaps a journalist or a private investigator, from secretly taking an everyday object used by a public figure—like a coffee mug or a toothbrush—with the express purpose of having the person’s DNA analyzed. Similarly, an employer could have secretly taken DNA samples to use for their purposes. This sort of activity is a gross intrusion into a person’s privacy and we are very pleased that the Government has now taken the Human Genetic Commission’s advice and made it illegal to take and analyse DNA in this way, without the person’s consent.51

  BOX 14.4 U.K. Surreptitious Sampling

  Under the United Kingdom’s Human Tissue Act of 2004 (which became effective on September 1, 2006) individuals cannot obtain and analyze a person’s DNA without his or her consent. Violation of the law is punishable by up to three years in prison or a fine or both. The law does not apply to law enforcement. The British Parliament enacted the law to keep amateurs from breaching the genetic privacy of individuals by analyzing a person’s so-called abandoned DNA.

  Interestingly, although this law has significantly bolstered privacy protections for individuals in light of a burgeoning genetic testing industry, it further bifurcated the United Kingdom’s system of DNA privacy. The law, with its clear exception for law enforcement, underscores that the rules for the police are separate from those for everyone else. In the context of law enforcement, DNA is open for taking.

  Source: Authors.

  In contrast, the United States has no restrictions on analyzing DNA from so-called abandoned objects, obtained by stealth or by a ruse, where no informed consent is required. A New York Times report titled “Stalking Strangers’ DNA to Fill in the Family Tree” describes the current attitude regarding the DNA we continuously shed from our bodies or from personal products we discard. Our laws and policies have not adequately addressed the complex privacy issues that are raised by the growth of medical and forensic interests in people’s DNA. The concept of “abandoned DNA” implies that we have no privacy interests in those reservoirs of our genetic code that are discarded or shed continuously and ubiquitously. Currently the default position for police is that DNA unattached to our bodies is unrestricted for anyone’s taking:

  They swab cheeks of strangers and pluck hairs from corpses. They travel hundreds of miles to entice their suspects with an old photograph, or sometimes a free drink. Cooperation is preferred, but not necessarily required to achieve these ends. . . . The talismans come mostly from people trying to glean genealogical information on dead relatives. But they can also be purloined from the living as the police do with suspects. The law views such DNA as “abandoned.”52

  Can medical and forensic privacy of DNA be conceptualized into a coherent set of principles, or do we have to live with two independent and incompatible systems?

  Part of the challenge for privacy advocates lies in the nature of DNA itself. The fact that DNA is everywhere means that it is fairly easy to collect, whether openly or surreptitiously. The level of intrusion for collection, as a result of the development of buccal swabs, is also minimal, or at least less than for blood collection. DNA’s stability means that it can be retained more or less indefinitely so long as it is kept in suitable conditions. The cost of DNA analysis is declining. Generally speaking, we have witnessed a slow and steady erosion of privacy protections in the United States. All these factors make it difficult for privacy activists to effectively oppose the expansion of DNA databases.

  At the same time, in the law-enforcement context, very little emphasis and attention have been placed on the informational privacy aspect of DNA collection. Early court cases failed to acknowledge the full scope of privacy concerns that can arise in the amassing and long-term storage of DNA samples, focusing almost exclusively on the initial physical intrusion associated with DNA collection. The “fingerprinting” analogy, meanwhile, has been etched in the minds of policy makers, eager to promote a seemingly high-tech, objective approach to “fighting crime.”

  Public attitudes and social policies about genetic privacy are evolving. There is ample evidence that people have an expectation of privacy of the genetic code that makes up their cells, at least the fraction of 1 percent of the code that reveals information about their physical or psychological being. A growing list of federal and state privacy protections has made it clear that we have a right to privacy in our genetic makeup in the medical and employment contexts. But in the context of the criminal justice system a relatively new technology of DNA profiling appears to be operating according to a different and shifting set of rules as the reach of DNA data banks is expanded to ever more categories of innocent people.

  Public anxiety about open access
to genetic information is likely to continue to be exacerbated by the rapidly growing field of behavioral genetics. Two recent studies illustrate this point. One study linked a gene mutation in men to marital discord and infidelity. According to a behavioral geneticist at the Karolinska Institute, “Men with two copies of the allele [gene variant] had twice the risk of experiencing marital dysfunction, with a threat of divorce during the last year, compared to men carrying one or no copies.”53 A second study found a gene that the authors claim can predict voter turnout.54 Whether or not these research results are replicated and validated, it is reasonably certain that people would not want such information open to anyone who can sequence their DNA from an abandoned paper cup.

  Genetics has become the new prism through which science reveals personal identity, behavior, and medical prognosis. Undoubtedly, some of these claims will prove false or simplistic. Others may survive skepticism. But there is little doubt that genetic privacy will become an increasingly important component of personal privacy. Eventually the courts will have to grapple with the discordance that is emerging in our laws and policies and incorporate the public’s expectation of genetic privacy within criminal justice under the umbrella of the Fourth Amendment, as Congress has begun to do with medical genetic information. Until then, the question whether we have any privacy at all in our DNA hangs in the balance.

  Chapter 15

  Racial Disparities in DNA Data Banking

  One of the fears is that expanded genome profiling will lead to reification of the belief of the biological basis of race. In particular, the use of expanded genome profiling may lend credence to the opinion that criminal activity is associated with a particular genetic make-up prevalent in certain males and/or individuals.

  —Susanne Haga1

  It is well documented that the American criminal justice system is heavily racialized. By this we mean that racial disparities have been identified in all parts of the system, from arrest, trial, and access to legal services to conviction, sentencing, parole, execution, and exoneration. For example, in regard to prison demographics, New York University sociologist Troy Duster reported that “African Americans are currently incarcerated at a rate approximately seven times greater than that of Americans of European descent.”2 Duster’s data show that the disparity in black versus white incarceration has grown significantly in recent years: in the 1930s blacks were incarcerated at a rate that was less than three times that of whites. Explanations that have been provided for this change range from musings on the decline of the moral character of African American males to a society rife with racial prejudice and economic injustice against people of color. Although vigorous controversy remains whether differential criminal involvement or differential criminal justice selection and processing are to blame for racial disparities in the system, most criminologists agree that racial discrimination cannot be dismissed.3 Indeed, a large body of empirical data supports the notion that racial bias plays a key role in driving these disparities.

  Will the technology of DNA analysis and DNA data banks exacerbate or improve the racialized criminal justice system? One response suggests that DNA science trumps racial prejudice. DNA testing provides us with a means to identify suspects that—even if not impervious to error—is more objective than, say, eyewitness identification. The claimed neutrality of forensic DNA technology implies that its introduction would shed light on racial disparities and pave the way toward a more just and equitable criminal justice system. Cases where DNA exclusions have exonerated minorities falsely convicted as a result of racial bias support this view. Another response, however, suggests that race trumps science. In this view science and technology must be understood within their broader social context. In a racially polarized society rife with racial disparities, it is a reasonable expectation that DNA testing will be used to reinforce the bias in criminal justice.

  In reality the impacts of DNA technology on racial injustices are most likely a complex combination of each of these responses. This chapter examines the ways in which forensic DNA technology offsets, exacerbates, masks, or highlights racial disparities in criminal justice. Answers to the following set of questions will provide some clarity to these issues.

  What is the current racial composition of the Combined DNA Index System (CODIS), and how will it be affected by broadening the criteria of inclusion to include arrestees?

  Will disproportionately higher minority representation in CODIS result in racial stigmatization or impose relatively greater civil liberties transgressions on minority communities?

  Will uses, other than identification, be made of the forensic DNA databases, and if so, what implications will those uses have for minority populations?

  We begin with a brief overview of the way in which racial disparities operate in the criminal justice system.

  Racial Disparities in the Criminal Justice System

  To understand the nature and persistence of racial disparities in the criminal justice system, one has to begin with the laws that classify and define crimes. For example, for many years the federal system punished those convicted of crack cocaine offenses much more severely than those convicted of powder cocaine offenses, even though studies showed that the difference in the danger of the drugs is minor.4 Crack is far more likely to be sold and used by blacks, while powder cocaine is more likely to be sold and used by whites.5 From 1986 to 1990, the height of the Reagan administration’s “War on Drugs,” the average prison sentence for blacks compared with that for whites for drug offenses rose from 11 to 49 percent.6 But the problem goes well beyond sentencing guidelines. The Justice Policy Institute, citing national survey statistics, reported that in 2002, 24 percent of crack cocaine users were African American and 72 percent were white or Hispanic, but more than 80 percent of defendants sentenced for crack cocaine offenses were African American.7

  Part of the explanation of how these gross disparities arise can be found at the place where individuals tend to first come into contact with the criminal justice system—that of detention and arrest. Study after study has demonstrated that people of color are disproportionately arrested for drug offenses, automobile theft, and driving under the influence.

  Data reported by sociologist Harry Levine on marijuana-possession arrests shed light on this phenomenon. From 1997 to 2006, on average, 100 people were arrested every day in New York City for marijuana possession. Each year, on average, New York City police arrested approximately 20,000 blacks for marijuana possession, compared with 5,000 whites. Adjusting for population, arrest rates for blacks have been approximately eight times as high as those for whites. This rate would be acceptable if it were true that blacks were eight times as likely as whites to use marijuana. But, in fact, U.S. national survey data have consistently shown that more whites use more marijuana than blacks.8 In other words, “Since Whites use marijuana more than Blacks or Hispanics, and since there are more Whites than Blacks or Hispanics in New York City, on any given day significantly more Whites possess and use marijuana than either of the other two groups. But every day the New York Police Department arrests far more Blacks than Whites, and far more Hispanics than Whites, just for possessing marijuana.”9 This pattern is not true only for New York City, nor does it hold only for marijuana. A study of arrestees in Maryland found that while 28 percent of the population is comprised of African Americans, 68 percent of the arrests for drug abuse are African Americans.10

  Some of the disparity in arrest rates might be explained by disparate policing practices—for example, where police focus their efforts on low-income or ethnic-minority neighborhoods.11 Data from the Justice Mapping Center show that more than 50 percent of the men sent to prison from New York are from districts that represent only 17 percent of the adult male residents.12 Pilar Ossorio and Troy Duster observed that the few DNA dragnets carried out in the United States have disproportionately targeted blacks. For example, San Diego police, in search of a serial killer in the early 1990s, identified and genetically pro
filed 750 African American men on the basis of eyewitness reports that the perpetrator was a black male.13

  Some of the disparity in arrest rates might also be explained through racial profiling by individual officers. Michael Risher notes:

  Studies have shown that some mixture of unconscious racism, conscious racism, and the middle-ground use of criminal profiles leads law enforcement to focus its attention and authority on people of color. This can include everything from police officers disproportionately selecting people of color to approach, question and ask consent to search, to discriminatory enforcement of traffic laws, and detaining and arresting people of color without sufficient individualized suspicion.14

  Police officers have significant discretion in making arrests, particularly when it comes to “victimless” crimes, such as drug use or “public order” crimes, and rarely face any consequences in cases where a person is improperly arrested without probable cause. In a study by Aleksandar Tomic and Jahn Hakes, the authors found that when police had broad discretion in making on-scene arrests, blacks were treated more aggressively than whites: