But although a universal database might help level the playing field at the level of the database, it would do nothing to address the overall racial and ethnic bias in the criminal justice system: “Bias would still exist because law enforcement’s lens does not focus equally on all types of crimes. Some kinds of activity, such as drug related street crime, receive far more attention from police than parallel kinds of crimes, such as cocaine sales at predominantly White college fraternities.”36 The makeup of the database will have no bearing on who is targeted for suspicion and arrest. Even if everyone is in the database, the majority of hits will continue to identify minorities so long as the types of crimes, neighborhoods, and populations monitored and investigated are racially driven. In fact, a universal database might give the impression that the system is fairer and could serve to mask the racial bias that is operating in the overall system.
There are, of course, other means to redress racism in criminal justice. For example, by restricting the collection of DNA to convicted felons, some of the racial disparities in the composition of the data bank will be diminished. Moreover, racial and ethnic disparities in the composition of the forensic DNA data bank are not the most onerous form of prejudice that is manifest in the criminal justice system. African Americans are more likely to be falsely convicted for rape than other population groups. With all African American DNA on the database, it is reasonable to assume that false convictions in that population group will actually increase because DNA fallibility follows racial lines. In cases where individuals have been falsely convicted because of mishandled DNA, they have disproportionately been people of color.
As previously noted, a universal database would obviate the need for several controversial law-enforcement practices that target specific groups of individuals and are criticized as unfair. Familial searching would be redundant if everyone were in the database. The reason for familial searching is to triangulate toward a precise match of a suspect starting with crime-scene DNA by getting a close match with a relative. That would be unnecessary if everyone’s DNA profile were in the national database accessible to all prosecutors and officers of the law. Similarly, law enforcement would not have to stop hundreds or even thousands of individuals on the street in a community as a last-ditch effort to solve a crime. As Peterson writes, “A universal DNA database containing a DNA fingerprint from every citizen in the United States could be used to identify otherwise missed first-time offenders and to render unnecessary discriminatory dragnets.”37 Police also would not need to follow anyone around to pick up DNA off discarded items or create ruses to encourage individuals to leave their DNA behind. Their DNA would already be in the custody of the police. Not only would these controversial practices come to an end, but law enforcement also would not have to expend time and resources on seeking DNA samples from innocent people under each of these scenarios.
Although it is true that a universal database would render these practices unnecessary, it is important to recognize that what is controversial about these practices is that people are uncomfortable having their DNA collected and stored by law enforcement in the first place. In the case of DNA dragnets, for example, people are not comfortable voluntarily giving their DNA to law enforcement when they do not have any assurance that their DNA will not be misused or that it will be destroyed after they are excluded from the crime in question (see chapter 3). Simply creating “the dragnet to end all dragnets” is hardly a solution to this concern.
A universal database would also eliminate the need for “John Doe” DNA indictments. These indictments are sometimes sought by prosecutors as a way of extending statutes of limitations. Such statutes provide time limitations after which legal proceedings can no longer be brought against a person. The lengths of the periods vary from state to state and depend on the type of legal action and the type of crime. Statutes of limitations are designed to protect suspects against claims made after evidence has been lost or degraded, memories have faded, or witnesses have disappeared or are no longer alive. Most states have a statute of limitations that applies to all crimes except murder, and the time limit generally starts to run on the date on which the offense was committed. Once the statute has expired, a court lacks jurisdiction to try or punish a defendant.
Most rape cases fall under a statute of limitations. When law enforcement fails to indict someone on a rape case that is about to reach the critical year under a statute of limitations (SOL), some prosecutors have sought extensions to the SOL from state legislatures. In cases where DNA evidence is available, some prosecutors have filed a “John Doe” DNA indictment. The theory behind these indictments is that the perpetrator, whose identity is not known, is uniquely identified by his DNA, which serves as a surrogate for a physical description or a name. The DNA must be collected and tested within the statute of limitations, and the court must find probable cause that the individuals whose genetic profile is described in the indictment committed the charged offense. This will allow a prosecutor to bring a person whose DNA matches that of “John Doe” to trial without limit of time. Some courts have accepted John Doe indictments on DNA profiles alone; others have required additional information with the DNA, such as a limited visual description of the individual.
Proponents of John Doe indictments argue that using a DNA profile rather than a name or detailed physical description is a legitimate way to vindicate victims, prevent offenders from escaping conviction for their crimes, and possibly prevent future crimes because of the deterrence element.38 Also, because DNA does not degrade easily when it is stored in dry environments, unlike memory, which does fade easily, the quality of DNA evidence over time does not circumvent the purpose of the SOL, which is to protect defendants against fading personal memory and testimony that lose their probative value over a period of years. As already noted, nonconsensuality is difficult to prove in many rape cases, and faded memory exacerbates this problem.
Critics of the John Doe DNA indictment counter that it evades an important constitutional guarantee for noncapital offenses.39 The DNA, after all, may or may not represent the identity of the perpetrator. It is simply biological material of interest left at the crime scene and does not necessarily define the identity of the perpetrator of the crime. In addition, even under optimal conditions, errors can and have occurred in the collection, handling, and storage of DNA samples that can result in errors in identification (see chapter 16). Because DNA evidence can remain intact over many years while other evidence, such as memory, can fade, the relative weight of DNA evidence increases with respect to other evidentiary sources. If the DNA found at the crime scene is not that of the perpetrator, its mere presence in a courtroom can override fading memories that provide an alibi for the suspect. If there were a truly universal DNA database, then there would be no need to engage in John Doe DNA indictments, since presumably every DNA sample collected from every crime scene would result in a match with an individual in the first instance.
The Expense to Privacy and Autonomy
If the database included everyone in the country, then introducing a crime-scene DNA profile into the database might pick up the guilty individual, but at what expense to the erosion of privacy and to the vast majority of innocent persons who will have their DNA on file? As is discussed in chapter 14, DNA contains a vast amount of information about a person. In contrast to fingerprints, which can be used only for identification, DNA can be mined for endless amounts of information about a person, such as insights into familial connections, physical attributes, genetic mutations, ancestry, and disease predisposition. As science advances, the phenotypic information available from human DNA will necessarily grow. Genetic information could be used in discriminatory ways and may include information that the person whose DNA it is does not wish to know. And repeated claims that human behaviors such as aggression, substance addiction, criminal tendency, and sexual orientation can be explained by genetics render law enforcement’s retention of DNA potentially prone to abuse. These privac
y concerns come into play because of current law-enforcement practice, where the DNA samples are retained along with the generated DNA profiles (see chapters 1 and 14).
The taking of DNA is generally considered a “search” under the Fourth Amendment, in part because of the substantial and uniquely personalized nature of the information contained in the DNA sample. Although the courts have generally upheld DNA data banks of convicted offenders on the notion that such individuals have a “diminished expectation” of privacy, as balanced against society’s need to promote law and order, it seems unlikely that an all-population data bank containing the DNA of millions of innocent individuals who have never been in contact with the law would withstand Fourth Amendment scrutiny. Moreover, as a matter of policy, the notion that innocent individuals should not have DNA retained permanently in a database is reasonable for a society that values freedom and individual privacy.
A mandatory, comprehensive DNA data bank renders DNA a tool for surveillance. Our DNA is shed in many places—on coffee cups, saliva, sweat, and hair follicles. The appearance of our unique DNA at a particular place is testimony to our being at that location unless someone planted the DNA there. Should ordinary citizens, for whom there is no suspicion of a crime, be the subjects or even the potential subjects of surveillance?
Suppose that a group of people meet to discuss strategies for a national protest against U.S. policy. Police enter the meeting space after the discussion is over and collect DNA to determine who came to the meeting so they can be placed under further surveillance. Individuals currently have no clearly established protective rights to their “abandoned DNA” (see chapter 6). With a national DNA data bank, DNA can be used to track people’s movements. Perhaps for the moment, DNA surveillance is a bit far fetched beyond its use at a crime scene because of the expense and time for analysis. But the technology is rapidly changing. DNA surveillance is recognized by legal scholars as a new technological means for privacy breaches of innocent people while serving as a new tool for criminal investigation and biometric profiling of crime-scene DNA:
This power to reconstruct past events, however partially, will be invaluable to criminal investigators, but it must be recognized that it will diminish our spatial anonymity—the privacy of our movements by reducing our ability to enter bedrooms (or other locations that might prove embarrassing) without the risk of our presence there later being discovered.40
Currently, most citizens do not have fingerprints on file with the police. A population-wide database of fingerprints can be misused in violation of one’s privacy and spatial anonymity. Police can collect fingerprint samples after people leave a gathering and determine the identity of those who attended without obtaining a warrant or taking photographs. With a universal DNA data bank, the opportunities for such breaches in privacy are even greater. Mark Rothstein and Sandra Carnahan frame the distinction between fingerprints and DNA as follows: “A fingerprint reveals only unique patterns of loops and whirls. In contrast, a DNA sample is the information-containing blueprint of human life, revealing one’s genetic predispositions to disease, physical and mental characteristics, and a host of other private facts not evident to the public.”41 Fingerprints cannot be used to determine paternity, family relationships, or medical predispositions. A sperm donor who wishes to maintain his anonymity cannot be found through fingerprinting the child born from his sperm. If American society has been resistant to accept a mandatory national fingerprint database, why would it accede to a population-wide DNA database?
There are many other technologies that can be used to solve crimes, but we might not wish to adopt them all as such. One can imagine a mandatory requirement that each person wear a Global Positioning System (GPS) bracelet with an encoded DNA microchip—a type of permanent identity card. When police wish to keep an eye on someone, they can activate a program in the central computer (or obtain a court warrant to do this), and the GPS system will be turned on, allowing police to fully monitor the comings and goings of the individual. No doubt many crimes would be solved, and many might even be prevented.
If we have learned anything from history, once put into the hands of agents of government, surveillance technologies at times are likely to be misused. When we examine the social implications of any new technology with surveillance capabilities, in addition to examining its idealized use in criminal justice, we should also examine its use under less-than-ideal conditions, such as when government authorities operate covertly, circumventing legally mandated and constitutional limitations.
Some have proposed including a DNA profile as part of a national ID card. Such information could go hand in hand and be linked with a centralized, national DNA database and raises additional privacy concerns because of its potential to be accessed by third parties. Most people are unaware of how their Social Security numbers or other personal identifiers are used in centralized data banks. Think about getting your credit background check when you apply for a new credit card or a loan. We rarely get to see the information held by the credit-checking companies that provide this service for all major department stores and national chains. Not only is our privacy being compromised, but the personal information may be incorrect. Increasingly, supermarkets and chain pharmacies issue discount cards that provide company surveillance of consumer purchases. In addition, chain pharmacies sell information on prescribing habits of individual physicians to drug companies. A drug representative can show a physician a spreadsheet of all his or her prescribed drugs over the year, comparing generics with trade drugs. Presumably that information will allow the drug representative to change the prescribing behavior of the physician in the interest of his or her company. The collection of consumer information in centralized data banks will reach its apotheosis with the creation of a national personal identification system that could include genotypic and phenotypic information.
A hacker could potentially do significant damage to a system of everyone’s DNA profile. In the United Kingdom, where debates about a potential universal database abound, even those who are generally supportive of such concepts have stressed the problem of potential security breaches. Tony Mc-Nulty, a former police minister in the United Kingdom, has stated: “I understand the debate around universalism. . . . How to maintain the security of a database with 4.5 million people on it is one thing—doing it for 60 million people is another.”42
A universal database would also make it easier for a reasonably motivated criminal to frame someone for a crime. If everyone’s DNA is in the system, simply placing a hair sample, cigarette butt, coffee cup, used condom, or other personal item could implicate someone other than the perpetrator or at least send investigators off in the wrong direction. The potential for DNA to be planted has been generally underacknowledged and is particularly problematic in light of the prevailing mischaracterization of DNA as infallible (see chapter 16). Jill Saward, a victims’ rights activist, advocated for a universal DNA database as follows: “If we have everyone on the database, we don’t have to worry about whether we think they might be guilty or not; everyone’s there.”43
Some supporters of a universal DNA criminal justice database recognize the possible risks, especially to suspicionless and innocent individuals. In response, they propose a range of safeguards. According to Michael Smith, a law professor at the University of Wisconsin, “The solution to the privacy problem is to destroy the biological samples in which individuals’ DNA resides.”44
For Smith, there is an inevitability of the universal database, and he prefers that we design it deliberately rather than falling into it along current patterns of piecemeal expansions: “If we do not design and build an inclusive DNA identification database, the databases we have will expand anyway—without necessary protections and without realizing the full public safety benefit of the technology.”45 Similarly, Richard Stacy, a former federal prosecutor, has remarked: “I sense that eventually a universal database will come; it seems as inevitable as the Internet. It may be that someday e
very child will have a DNA sample taken at birth and entered into a national database. If that happens, it will be up to us to make certain that it is done in a way that privacy is protected and abuse, from either the government or the private sector, cannot occur.”46
Etzioni’s solution for a national DNA database to serve the common good while protecting individual liberties is to institute an “independent public accountability board” that would ensure that civil liberties were protected from the misuse of biometric data. Because a universal DNA database will help ensure that a DNA profile of the perpetrator of a violent crime is correctly matched with the crime-scene DNA, he argues, it will help ensure that suspects are not wrongfully convicted, and if they were, the correct match will be made and the falsely convicted individual will be exonerated.
These proposals are well meaning. But if we take seriously the premise that DNA banking is contrary to our Fourth Amendment rights or is an affront to personal privacy and autonomy, then the logical solution is to limit the databases, not to expand them indefinitely. Similarly, we need not accept the notion that the expansion of the databases is inevitable. Although it may take significant political will and momentum to reverse current trends, there is no reason that we cannot restrict or roll back the databases if we can agree that innocent persons do not belong in DNA databases.
Feasibility
If we were to decide as a society that we wanted to move forward with creating a nationwide, universal database, how would we do it? Currently, more than 8 million persons have had their DNA collected, profiled, and stored in the CODIS database. The population of the United States exceeds 300 million. How feasible would it be to expand the database by a factor of 40?
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