Justice and Forensic DNA
Law enforcement’s primary role is to investigate crime and prosecute criminals. The Combined DNA Index System (CODIS) in the United States and similar systems in other countries have been explicitly created as tools toward these ends. This vision of justice that DNA is intended to serve—at least from the perspective of those who employ it—is perhaps narrower than the one discussed in the previous section because it focuses more heavily on retribution and restitution and much less on procedural fairness and equality. A narrow vision of justice such as this might very easily embrace the maximum expansion of DNA technology in the criminal justice system, which elevates the resolution of a crime and punishment of the guilty above all other matters.
On the other hand, a vision of justice that values not only crime solving but also notions of fairness, equity, and privacy might view expansions of DNA technology in a different light. The often-debated question “How many offenders might we tolerate escaping in order to avoid an innocent person being wrongfully condemned?” becomes central when procedural fairness is valued. Questions of wrongful identification as a result of error or abuse associated with DNA testing also become relevant in this formulation of justice. Similarly, questions about the disproportionate impacts of long-term genetic surveillance on minority communities and the broad societal implications of widespread data banking for privacy and autonomy take on special significance.
There is no question that debates about the appropriate role of DNA in the criminal justice system are directly tied to competing notions of justice. One who believes that criminals must be caught at any expense might subscribe to the approach “the bigger the database, the better” to DNA data banking. But even for those of us who agree that procedural fairness and equity are of extraordinary importance in achieving justice, the question whether more DNA will further that cause is still murky at best. As Simon Cole writes, “Seemingly egalitarian proposals, such as a universal DNA database, will not necessarily have equalizing effects. Whether DNA profiling technology as a whole mitigates or exacerbates inequality does not yield a single, simple answer. Rather, the answer depends on the ‘equality of what?’ . . . and the equality of whom.”3
Differences of opinion about the use and expansion of forensic DNA technology are also entrenched in different understandings of the role and limitations of science. When DNA was introduced into the criminal justice system, a number of experts testified that false positives were impossible in DNA testing.4 A defense attorney in Virginia characterized the perceived infallibility of DNA as follows: “If you put God on the witness stand . . . and God’s testimony conflicted with the DNA evidence, everyone would automatically say, ‘Why is God lying like this?’” 5 No credible scientist would claim that DNA is infallible today, and the laboratory scandals that have arisen around the country have made clear that human error can and does occur in the processing and typing of DNA samples (see chapter 16). Nevertheless, there is still a great divide between those who see these errors as exceptions to the rule of science as an objective and truth-telling endeavor and those who instead view it as an inherently social enterprise open to human fallibilities.
There is a very clear difference in how these perspectives become operationalized in policy. For those who believe that all the scientific and technical issues have been resolved, the focus is on the truth revealed by the science. Moreover, DNA science becomes the ultimate and unquestioned authority for discovering guilt or innocence. Other sources of knowledge are secondary and defer to DNA. It was perhaps this type of near-blind faith in DNA to deliver justice that led to the embarrassing investigational blunder in Germany discussed in the introduction to this book. On the other hand, for those who embrace the idea that, even with strong consensus, science is a social enterprise, then its vulnerability to error, bias, and misuse must always be a continuous presence in law enforcement. Moreover, the complexity of DNA testing relative to nontechnological methods of criminal investigation, such as eyewitness identification, means that DNA procedures and processes are left to a narrow class of “experts” and are not subject to public scrutiny. The question whether justice is advanced by DNA must take into account the potential that error, abuse, or misuse can occur unchecked or unreported as a result of this limitation.
Previous chapters have discussed the impact of forensic DNA databases on three groups of individuals: those convicted of and serving sentences for a crime, those arrested for or charged with a crime, and those who come under surveillance by way of their DNA (for example, through a dragnet or through a familial relation with an individual on the database). Certainly questions of fairness weigh most heavily when DNA is taken, stored, and analyzed from the innocent, or when the innocent, simply by nature of their DNA, fall under the lens of suspicion.
In cases where police, in their effort to find suspects and solve crimes, suspend or exceed the protections that suspicionless people traditionally have been afforded, the question whether DNA is advancing justice becomes especially relevant. We have illustrated violations of personal liberty in cases where police, in pursuit of an unknown perpetrator, undertake a DNA dragnet in a manner whereby individuals are coerced or pressured to give a DNA sample when there is no probable cause that links them to the crime. Efforts by law enforcement to coerce, intimidate, scare, or penalize individuals who choose not to participate in a DNA dragnet constitute a form of injustice, despite the best motives of police and prosecutors to bring about retributive justice on behalf of the crime victims and the state. Convicting alleged felons by “any means necessary” is a form of “frontier justice” that violates safeguards guaranteed by the Constitution.
The surveillance, intimidation, or coercion of innocent family members of a convicted felon whose DNA fulfilled the criterion of a low- or moderate-stringency match in a forensic DNA database against a crime-scene sample violates the presumption of innocence afforded to the members of that family. The mere probability of “DNA resemblance” without any other evidence of probable cause or suspicion is not sufficient to violate a person’s presumed innocence or civil liberties. Although the science of DNA identification has an important role to play in affirming or disaffirming a match between crime-scene biological evidence and the DNA of a suspect, there is nothing in the science or in our accepted principles of social justice that justifies using DNA science as a “net” to collect suspects based on a blunt notion of “DNA resemblance.” Once the idea of familial searches is accepted, it can easily entangle larger numbers of innocent people in the web of criminal police investigations under the rationalization that genetic resemblance raises the probability that one is implicated in criminal activity. As was pointed out in chapter 4, familial searches disproportionately affect certain ethnic, racial, and socioeconomic groups that tend to have larger families, as well as people who happen to have a relative who was convicted of a felony (and in some states those who have been arrested for, but not convicted of, a crime). The practice of familial searches in DNA databases reinscribes into our cultural mind-set the idea of “crime families” or groups whose members have a genetic propensity toward criminal behavior.
Of what relevance to our sense of justice are the collection and deposition in a database by law enforcement of the forensic profiles of individuals who have never been convicted of a felony offense or even charged with one? Criminal investigations will inevitably lead to some blind alleys, turn up refuted initial hypotheses about suspects, or incur investigational errors and forensic misconduct. As a matter of fairness, why should errors or false hypotheses about a crime suspect, who is presumed innocent, place that individual under permanent DNA surveillance? That is precisely the injustice committed by maintaining the forensic DNA profiles and biological samples of some selected class of innocent individuals. Under the Equal Protection Clause of the Fourteenth Amendment, it would seem reasonable to presume that all innocent people (people who have never been convicted of a felony) should be treated equally w
ith respect to the collection and banking of their DNA by the government. If police are more likely to bring in suspects from certain neighborhoods for questioning in states that include arrestee forensic DNA profiles in state databases, citizens in those communities will be disproportionately represented in CODIS, and as a result their DNA profiles remain under the constant eye of criminal justice. A person picked up for exceeding the speed limit may someday be routinely checked to see if his or her DNA profile is in CODIS. The mere appearance of that person’s profile in CODIS can have a stigmatizing impact, especially when racial minorities and individuals in lower socioeconomic strata are more likely to show up.
Another consideration of justice involving DNA forensic science arises in the proper balancing of societal interests in solving crimes against the privacy interests of individuals (chapter 14). The courts have a long tradition of balancing these interests. Thus when the use of surveillance technology has a proven record of preventing or solving crimes, the courts have sometimes ruled in favor of the state’s interest over the protection of individual privacy. Even in balancing, the courts place controls on an overzealous state. Certainly the technology must be shown to work effectively, such as radar used by police on highways. But even in cases where the technology is efficacious, such as infrared detectors, courts have required a warrant when the technology is used to detect criminal activity in one’s home.6 In chapter 17 we have cited evidence that expanding DNA databases to include innocent arrestees reaches a point of diminishing returns in the state’s interest in solving crimes. If we consider that “balancing” of interests is a form of social justice, we should recalibrate the balance when arrestee databases are not achieving their goals and at the same time are placing increasing numbers of innocent people under “genetic surveillance.” Bruce Budowle, one of the original architects of CODIS and a strong supporter of the use of DNA databases to develop investigational leads in criminal cases, has pointed out that the actual utility of the database system is currently not known:
There is no indication if the tax payer has gotten his/her money’s worth regarding solving crime or whether a victim’s case will be resolved because sufficient resources and processes are not in place to assess the overall performance of CODIS. Simply put, the actual numbers of success are not known. Therefore, we are left only with balancing decisions of expansion and privacy on the value of individual victims, the number of hits, and the assumption that most hits translated into successful investigative leads.7
As for the category of individuals who have been convicted and sentenced to prison terms for felony offenses, as we have discussed in chapter 14, the courts have made clear that the balancing of interests points in the direction of the state in questions whether convicted felons should have to turn over their DNA. That balancing becomes less clear when the question turns to individuals convicted of minor crimes or crimes where DNA evidence is generally not of interest or use (e.g., low-level drug possession), or when the individuals involved are juveniles.
We have also discussed the role of DNA in those cases where incarcerated individuals have sought to prove “actual innocence” (see chapter 7). In these cases individuals with a claim of innocence may obtain access to appropriate DNA testing that might exclude them as the perpetrator of a crime for which they have been tried and convicted. Over 250 cases of “actual innocence” have been accepted by the courts and have resulted in exonerations. Several principles of justice are intertwined with these types of cases.
There are a number of reasons that the American judicial system has, to a large degree, adopted a principle of finality in regard to litigation. Once an individual has been afforded all the legal remedies available to him or her, including the possibility of entering new exculpatory evidence after conviction, an incompetent defense attorney, or procedural errors in the trial, the system begins the process of finalizing the decision, making it increasingly difficult to reopen the conviction. Without finality, it is argued, the courts would be overburdened with spurious postconviction claims. The system seeks to frontload all the opportunities for defending one’s innocence and for making appeals, leaving very few opportunities beyond the last appeals process. But forensic DNA has resulted in a reconsideration of judicial finality because of its exculpatory power.8 Where an individual’s DNA profile is not included in the profile of well-preserved DNA evidence known to have come from the perpetrator, it means that this individual did not leave behind his or her DNA and someone else did. Unlike the case of a so-called match where inclusion of the profile in the crime-scene DNA could be explained by contamination, mixtures, or other potential complications, a nonmatch of quality DNA samples is a definitive exclusion. Particularly where there is no other concrete evidence linking that individual to the crime, it is hard to imagine how a state can possibly allow a person to continue to serve time for a crime under this type of scenario. Nonetheless, as we saw in chapter 7, while state authorities have fully embraced the use of DNA to place individuals behind bars, some have been far more reluctant to open the door to post-conviction DNA testing.
The principle of “DNA exculpatory justice” may be stated as follows: if a claim of “actual innocence” can be definitively resolved at a reasonable cost by DNA testing, then it would be an injustice if the state refused to provide the defendant the preserved crime-scene DNA evidence for comparison with his or her DNA. Not all states provide the same opportunities for post-conviction testing. DNA exculpatory justice is also compromised when local police departments exercise different standards for preserving postconviction DNA evidence. Those who have been falsely convicted, where exculpatory DNA evidence is available, even after having served their sentence, cannot feel whole again until they have been afforded the opportunity to use DNA to prove their innocence. This raises the question whether the scales of justice can be balanced when the protection of DNA evidence varies across jurisdictions.
The concept of justice in the criminal justice system must include the opportunity to correct mistaken convictions when it is generally recognized that wrongful convictions do sometimes occur. No society can aspire to an ideal of justice if it does not take every reasonable precaution to prevent innocent people from having their liberties taken away by the state, or, when it has done so, it is recalcitrant to correcting its mistakes.
Toward a Vision of Justice
The vision of justice to which the “criminal justice system” aspires should be based on a proper balance between the protection of the civil liberties, presumed innocence, and procedural rights of persons and the needs of the state to apprehend, punish, and rehabilitate perpetrators of crime. Ideally this is achieved by a type of maximin principle where retributive justice (convicting perpetrators of crime) is maximized under the constraint of minimizing intrusions into the protections of individual privacy, autonomy, and the presumption of innocence.
On the basis of this general vision of justice, we offer the following set of axioms and commentaries on the responsible uses of forensic DNA in law enforcement. These axioms seek to balance the concept of justice for victims of crime with the ideals of justice for the presumed innocent and convicted felons who seek to prove “actual innocence” through postconviction DNA testing. They are also designed to bring the medical and forensic systems into greater concordance by adopting the principle that all people have an expectation of privacy of their genetic information.
Axiom 1. Genetic information collected in the law-enforcement context should be protected in a manner that is consistent with the protections afforded to medical information.
Forensic biological samples are analogous to medical records in that they contain highly intimate and personal information, including information pertaining to disease predisposition, genetic abnormalities, recessive genes, paternity, and immunological sensitivities. Therefore, the privacy of genetic information protected in medical records should carry over to other sources and uses of one’s genetic code. One should be guided by the se
nsitivity of the source information and not by how the information was acquired or the purpose for which it is intended to be used. As we discussed in chapter 14, while the DNA profiles (noncoding regions of DNA) contain only limited information about an individual, the source biological samples that are collected in order to profile the DNA are permanently retained by law enforcement.
There is near unanimity that, beyond the person’s caregivers, the privacy of an individual’s medical genetic information should be protected, and as a result, many states and the federal government have passed legislation to protect their residents from unauthorized access to and use of medical genetic information. However, quite the opposite is taking place in the criminal justice system, where the collection of people’s DNA without their consent has expanded. As long as agencies of criminal justice maintain databases that include the complete genome of individuals who are charged with, arrested for, and/or convicted of crimes, there will be a bifurcated system in which the same information available through DNA analysis will be protected under one set of public and private institutions while being unprotected under another.
Axiom 2. People have an expectation of privacy in the informational content of their DNA regardless of where it has been obtained or acquired (on their person, shed, within medical records).
A corollary to this axiom is that it is an invasion of one’s privacy when his or her DNA is analyzed outside the scene of a crime. Police should not have the right to analyze DNA for medical, paternity, ancestry, or behavioral information without a warrant. Covert involuntary DNA sampling by amateurs, private investigators, and police should be prohibited unless there is a court order.
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