One can argue that if everyone’s DNA were in CODIS, at least all the cup users would have an equal chance of becoming a suspect, not just the ones whose DNA can be found in CODIS. Similarly, if all immigrants or illegal aliens were profiled for CODIS, members of those groups would become criminal suspects disproportionately to their ethnic representation in the population.
Another implication of racially imbalanced DNA data banks is stigmatization. It is reasonable to assume that police are likely to be biased toward individuals who have had a prior run-in with the law. To use the language of Bayesian statisticians, such information about the past raises one’s prior probability that the individual is guilty. In the future the technology for checking a DNA profile of an individual will assuredly become miniaturized and faster. The digitized profiles can be uploaded to a mainframe computer and accessed with portable devices by police while on patrol.35 If the profile shows up in the database, it may bias the officer’s prior expectation of guilt or innocence. At the very least, an individual may be subject to intensive questioning and treated as a suspect with very little other evidence. As long as the playing field of DNA data banking is not level, where minorities and people of color are overrepresented, for those whose profiles appear in the database, there is a strong probability of stigmatization and the prejudicial use of the information. We should remind ourselves that these consequences will fall on many innocent people, perhaps because they volunteered their DNA in a dragnet, they are part of a minority group that was disproportionately arrested, charged with, or convicted of crimes that they did not commit, or because they entered the country as undocumented immigrants.
Forensic Data Banks in Scientific and Medical Research
Many states have passed laws that give researchers access to DNA information in state data banks. For the time being, scientists cannot learn very much from having access to 13 loci, even if they also have the individual’s phenotypic information, that is, medical records. The loci used in DNA profiling were chosen specifically because they are not correlated with physical attributes of individuals. Nonetheless, at least one of these markers has proved to be closely related to the gene that codes for insulin, which itself relates to diabetes,36 and it is possible that other connections of this sort will occur in time. That said, in order for scientists to acquire extensive knowledge about individuals from the DNA data banks, they will need the entire genome (the biological sample) or at least a portion of it that contains the DNA (functional or coding DNA) that reveals a detectable physical trait. It would also help the research if the scientists had social and medical histories of the individuals.
What type of research is most likely to interest scientists? The prison population consists disproportionately of people of lower socioeconomic status, with poor education, often from broken homes or dysfunctional families, who have committed violent acts, such as child abuse or rape. Historically, researchers have shown an interest in the use of prison populations to study the genetics of aggression, intelligence, and pedophilia. Does someone in prison, who has by law been required to give a biological specimen to a police unit, have any right over potential research uses of his or her DNA profile and/or the original biological sample? Do prisoners retain the right of “informed consent,” a fundamental principle of the “common rule” (federal policy regarding human subjects protection), as subjects of research?37
Prisoners certainly cannot be forced to serve as human subjects for drug testing. For over 25 years it has been the policy of the American Civil Liberties Union (ACLU) that no therapeutic experiments be conducted on prison populations or any populations of incarcerated individuals.38 The principle underlying this policy is that people who are in prison or detained cannot exercise their informed consent as free and autonomous human beings.
The issue of informed consent of prisoners for the use of DNA and/or medical information has not been resolved in U.S. policy. In February 2006 the Environmental Protection Agency (EPA) issued its ethical guidelines on human experiments to test pesticides.39 That policy kept open the possibility that the agency would accept human toxicological data obtained by exposing prisoners to pesticides—in conflict not only with the ACLU’s policy but also with well-established international codes of ethics.40
Let us suppose that a group of researchers wishes to investigate the genetics of pedophilia. There is no reasonable means of acquiring a study population from pedophiles freely moving about society. Even though released sex offenders are known to society because they are required to register in most states, it is doubtful that this group of individuals would freely join a genetic study of pedophilia. If such individuals were willing to participate, researchers would need a DNA sample and a detailed social and medical history of the subject. Researchers would also be required to fulfill their ethical responsibility of informed consent under the “common rule.”
Pedophiles in prison are a captured population whose DNA profiles and biological samples are already on file. It would be far more convenient for researchers to use prisoners for this study than to seek out a study population from individuals living freely, although under public surveillance, in society. But an even easier way to study this population would be to bypass any direct contact with the individuals and instead to go directly to the stored biological samples.
“Criminal” Genes
There is a long tradition in sociology and anthropology and more recently in sociobiology of seeking to discover a biological root cause of criminal behavior or sociopathology in people’s blood, brain, or genes. Hereditarian views of behavior and personality saw a resurgence of interest in the post-Darwinian period up to the Second World War. For a time after the war greater emphasis was placed on environmental and social influences on behavior. However, in the late 1960s there was a resurgence of interest in the hereditarian approach to violence. At the same time, new tools were developed for studying human genetics.41 In a notable case prisoners were chosen to test a theory that an extra Y chromosome in males (XYY males) was a factor in explaining violent behavior.42 The study was criticized for its methodological flaws and was eventually terminated. More recently scientists have found a region of the chromosome where there are variants of a gene that regulates the production of the enzyme monoamine oxidase A (MAOA), which has been proposed as a possible mechanism for a genetic theory of violence (see the “Behavioral Genetics and Profiling” section in chapter 5). In this theory a variant of a gene either overexpresses or underexpresses a chemical that affects a region of the brain.43 More recently a study found that individuals with the gene that results in low MAOA activity were twice as likely to join a gang as those with the high-activity form.44
A persistent interest in the biological—and, more specifically, genetic—underpinnings of human behavior has made forensic DNA data banks a valuable resource for researchers. The data banks could allow those who seek to find genetic explanations for violent crime (not white-collar crime) a means to pursue this research that avoids the ethical and methodological flaws associated with focusing directly on prisoners. Elisa Pieri and Mairi Levitt discuss the return of behavioral genetics as an explanation for criminal activity and the role of DNA data banking in the United Kingdom to support such research:
Children as young as ten that are arrested can now be DNA swabbed and entered (for life) on the National DNA database, even if they are never charged and subsequently acquitted. This database, already used for research into ethnic profiling, may potentially provide the DNA data for future behavioural research into criminality, violence or aggressiveness.45
A report of the Select Committee on Home Affairs of the United Kingdom’s Parliament describes the growing racial disparity of the national DNA data bank (see box 15.1). The availability of a prescreened prisoner database for studying the genetics of human aggression would be highly desirable. However, there are serious methodological as well as ethical concerns with using a forensic data bank for these purposes. DNA samples from convicted f
elons are not a randomly selected sample. Troy Duster has warned that because African Americans are disproportionately represented in the criminal justice system, any behavioral genetics research that relies on this subset of DNA samples will inevitably be skewed toward that population. Genetic markers may very well be found that are more prevalent among this population than another, but whether these markers explain the causes of criminal behavior is another matter. Nonetheless, we are likely to see what Duster refers to as “the inevitable search for genetic markers and seductive ease into genetic explanations of crime.”46
BOX 15.1 DNA of Blacks Is Stored Disproportionately in the British Data Bank
Currently, DNA samples can be taken by the police from anyone arrested and detained in police custody in connection with a recordable offence. This includes most offences other than traffic offences. A U.K. parliamentary committee examining the racial disparities in the criminal justice system reported:
Baroness Scotland confirmed that three-quarters of the young black male population will soon be on the DNA database. Although the Home Office has argued in the past that “persons who do not go on to commit an offence have no reason to fear the retention of this information,” we are concerned about the implications of the presence of so many black young men on the database. It appears that we are moving unwittingly towards a situation where the majority of the black population will have their data stored on the DNA database. A larger proportion of innocent young black people will be held on the database than for other ethnicities given the small number of arrests which lead to convictions and the high arrest rate of young black people relative to young people of other ethnicities. The implications of this development must be explored openly by the Government. It means that young black people who have committed no crime are far more likely to be on the database than young white people. It also means that young white criminals who have never been arrested are more likely to get away with crimes because they are not on the database. It is hard to see how either outcome can be justified on grounds of equity or of public confidence in the criminal justice system.
Source: Select Committee on Home Affairs, Parliament, United Kingdom, “Nature and Extent of Young Black People’s Overrepresentation,” in “Second Report,” June 15, 2007, http://www.publications.parliament.uk/pa/cm200607/cmselect/cmhaff/181/18105.htm (accessed May 24, 2010).
DNA Profiling for Racial and Ethnic Identification
Crime-scene DNA can now be analyzed by racial-profiling methods. At least, this is the claim. Law-enforcement investigators have an interest in using DNA analysis to develop the physical profile of the perpetrator of a crime from DNA left at the crime scene. To accomplish this, there has to be a correlation that can be made between genetic sequences (genotype) and physical characteristics (phenotype) of an individual. When eyewitnesses provide a profile of a crime suspect, they usually refer to race, height, hair color, weight, or unusual marks on the individual, such as moles or tattoos. What kind of profile of an individual can one’s DNA provide?
On the basis of the discovery that several broad racial/ethnic population groups have common and distinguishable clusters of DNA sequences, ancestral DNA analysis has become a new method for reifying racial distinctions. Because it was established that DNA variation within ancestral groups was greater than that between groups, there was reason to believe that there would not be a correspondence between genotype and racial/ethnic self-definition.47 But recent studies have shown that there are unique genetic clusters that show a high correspondence with racial/ethnic ancestry. Hua Tang and colleagues analyzed a large multiethnic population-based sample of individuals who participated in a study of the genetics of hypertension. The subjects identified themselves as belonging to one of four major racial/ethnic groups (white, African American, East Asian, and Hispanic). The investigators used 326 genetic markers and concluded: “Genetic cluster analyses of the microsatellite markers produced four major clusters, which showed near-perfect correspondence with the four self-reported race/ethnicity categories.”48 The data showed a strong association between a select group of microsatellites and geographical ancestry. But the authors cautioned that “African Americans have a continuous range of European ancestry that would not be detected by cluster analysis but could strongly confound genetic case-control studies.”49
Classification by racial/ethnic geographical origins appears to be catching on as a popular trend for identifying ancestry. There is also evidence that police investigators have sent crime-scene samples to companies that provide ancestry analysis in order to gain some phenotypic information about crime-scene DNA. One of these companies was the now-defunct company DNAPrint Genomics.50 It advertised its product, called DNA Witness, as capable of determining race proportions from crime-scene DNA. A company advertisement claimed:
The new test provides important Forensic Anthropological information relevant for a wide variety of investigative situations. When biological evidence is gathered, an investigative team can use DNA Witness 2.0 to construct a partial physical profile from the DNA and in many cases learn details about the donor’s appearance, essentially permitting a partial reconstruction of their driver’s license photo.51
But given the admixtures in European and African DNA, the results could be quite misleading and result in mistaken profiling. Probabilistic profiling of crime-scene DNA can lead to harassment of innocent individuals who happen to self-identify with a race or ethnic group. Some experts have argued that because there is no definition of race in genetic terms,52 genetic analysis of crime-scene data as a surrogate of a racial phenotype has no basis in science and should not be used in criminal investigations.
In his book Molecular Photofitting: Predicting Ancestry and Phenotype Using DNA, author Tony Frudakis, a principal in DNAPrint Genomics, cited as the goal of his research (and that of his company) “to establish a method for objectively interpreting an ancestry admixture result in order to safely use the indirect method of anthropocentric trait value inference” such that “knowledge of [genetics of ] ancestry can impart information about certain aspects of physical appearance which is what we are after if we are attempting to characterize DNA found at a crime scene.”53 Frudakis’s working definition of “molecular photofitting” is “methods to produce forensically (or biomedically) useful predictions of physical features or phenotypes from an analysis of DNA variations.”54
At first glance, this is an idea backed by extraordinary hubris, namely, that we can translate the genetic code into physical appearance. This has been referred to as “DNA reverse engineering” or “DNA photofit.”55 Those who have attended their thirtieth-anniversary high-school or college reunion understand that there are some individuals whom we cannot currently identify from the picture that was taken at their graduation. Nevertheless, although the facial characteristics, hair color, or body shape of an individual might have changed radically over several decades, there may be some physical characteristics that remain invariant, such as eye color, skin tone, or hair type. If there are invariant phenotypic characteristics, can they be strongly correlated with DNA alleles? That was the project undertaken by Frudakis in DNAPrint Genomics. He argues that some phenotypes are highly heritable, such as skin color. He uses ancestry data where alleles are selected that have been invariant with respect to certain geographically based populations.
Admixture defines the percentage of the selected alleles in an individual’s genome. When there is a strong correlation between a phenotype and the alleles that define ancestry, Frudakis maintains that a prediction of the phenotype from the percentage of the alleles can be made. One trait that lends itself to this analysis is pigmentation. He claims that “pigmentation traits are under the control of a relatively small collection of highly penetrant gene variants.”56 Thus, when an individual can be characterized by greater than 75 percent West African admixture, it can be inferred that the person has a darker skin shade than someone with less than 35 percent West African ancestry. He developed
the melanin (M) index, which is a measure of the skin’s melanin content. Frudakis writes: “With individual admixture estimates and M values it was then possible to search for correlation between admixture and pigmentation among individuals.”57 He claims a “significant correlation between constitutive pigmentation and individual ancestry” in a group of admixed samples.58 If these results are validated in larger databases, then one should be able to predict melanin content (and therefore skin pigmentation, an observable trait) from the percentage of a person’s African admixture (a genetic composition of alleles).
What, if anything, would be problematic about developing a set of statistical correlates between a selection of alleles and a physical trait? When the DNA profile of biological material found at the scene of a crime has no match in the database, criminal investigators could benefit from having some clues in the genetic code about the physical traits (red hair, green eyes, light skin) of the person who left his or her DNA at the scene. We have already noted that the rarer a genetic mutation is, the more helpful it might be in criminal investigation.
DNA Witness was not able to garner general scientific support for its methods. Anthropologist Duana Fullwiley wrote: “DNA Witness falls short of legal and scientific standards for trial and admissibility, while it eludes certain legal logics with regard to the use of racial categories in interpreting DNA.”59
CODIS was established on the premise that its value was in the comparison of two sources of DNA and therefore in the concept of “identity.” The alleles used in the STRs for DNA profiles have no significance for a person’s physical characteristics. At best, even with the full DNA of the biological sample, police will have a probability estimate that the DNA found at the crime scene came from a person with red hair and green eyes, or that a DNA sample consisting of 80 percent African and 20 percent European admixture probably came from an individual with a melanin index (a proxy measure of skin color) of 35–50.60
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