DNA Forensics and Civil Liberty

Benjamin W. Moulton, J.D., M.P.H., Executive Director Emeritus

By the summer of 2006 ASLME had finished an ambitious and far reaching NIH funded project (NIH RO1 HG 002836) exploring the contours and reach of the expanding forensic DNA databases and their implication for our settled legal concepts of privacy, criminal justice and civil liberty. The three year project assembled stakeholders and scholars from diverse backgrounds to explore the promise and boundaries of the new DNA science and technology. A Special Edition of Journal of Law, Medicine & Ethics (JLME Volume 34:2 Summer 2006) was the capstone to the research, and is a well grounded starting point to see where we have been and what we have learned with the predicted and rapid expansion of DNA collection. In many ways the articles are prescient. The issues then as now are whether the benefits outweigh the societal burdens and loss of individual rights. The Journal is an index of contemporary DNA databank issues and available for review on the ASLME website at www.aslme.org. The challenges of balance and equilibrium continue to remain the same and lack simple analysis and resolution. Societal engagement is increasingly more important as the technology advances in its scope and purpose.

The ASLME DNA forensics and civil liberties project explored many of the themes that are reported daily in the national press including: (1) who should be included in forensic databases; (2) tissue collections as potential databases; (3) sample retention;(4) length of retention: (5) access to forensic DNA databases; (6) partial matches and the effect on relatives; (7) racial identification using hapotype analysis; (8) resource allocation; (9) Federal versus state roles; (10) role of medical personnel; (11) the autonomy of science; (12) uses of samples in medical research; (13) behavioral genetic research; (14) informed consent for research;(15) commercialization; (16) use for epidemiological purposes; (17) fiduciary issues versus the common good;(18) use of DNA for identification in mass disasters; (19) National DNA identification cards. These issues were explored in depth at workshops conducted at the Harvard Kennedy School of Government. The workshops were organized along thematic lines. The first workshop considered the technology of DNA fingerprinting and the ethical and policy concerns surrounding the collection and retention of samples. The second workshop was designed to bring together a multi disciplinary group of experts to explore privacy and civil liberty issues related to the application of the DNA technology to the criminal justice system. The third workshop posed questions on the research and ownership of the samples as well as the ethical and policy implications of medical and behavioral research on DNA samples. The workshop participants debated how broadly can DNA collected for identification in mass disasters be used for other purposes. The fourth workshop addressed an issues of vast importance, the use of DNA in exonerating innocents. These workshops were the incubator for the articles which comprised the special edition of JLME. While the special edition of JLME devoted to the NIH research was going to press Congress passed the DNA fingerprint Act. This act greatly expanded the scope of the CODIS databank. It was adopted with virtually no public comment. Public engagement on the legal, ethical and social implications of expansion of DNA collection is essential to a reasoned discourse of the governed. Each citizen has a stake in this important dialogue.

Recent press articles highlight the immediacy of the issues which ASLME addressed in its NIH research. While the US had originally only taken DNA samples from convicted felons there has been a rapid shift to collection earlier in the criminal justice process. The FBI has joined 15 states in collecting DNA samples from those awaiting trial. It will also collect samples from those who have been detained as illegal immigrants. Currently the FBI CODIS database has 6.7 million profiles and it is expected to grow by 2012 from 80,000 to 1.2 million new entries a year. Law enforcement officials argue that expanding the database will allow for the conviction of more offenders and the exoneration of those wrongfully convicted. Civil libertarians argue that the taking of samples from arrestees is unwarranted exercise of the power of the state and impinges upon individual privacy rights. They argue that we are headed into a new era of genetic surveillance. Already minors are required to give samples in 35 states upon conviction of a felony and sixteen states now take DNA upon a misdemeanor conviction.

California allows collection of DNA upon arrest and it is reported that expunging the record of a DNA sample requires a laborious process of seeking a specific court order. Critics also point to Britain which allows collection of samples at the time of arrest. Currently in the UK approximately 850,000 people with no criminal record are in the database. Demographically the collection is skewed to disproportionately represent blacks. In Britain 27 percent of black people and 42 percent of black males are registered. Hank Greely (Stanford University) who contributed as a scholar to the ASLME project points out that blacks make up 40 percent of the DNA profiles in the federal database. He anticipates that Latinos who make up over 50 percent of the immigration offenses will soon be the majority of DNA profiles. The implications for racial bias are obvious and disconcerting.

Critics of the expanding collection continue to complain that the efforts to use DNA technology are misplaced. Tens of thousands of crime scene samples go untested yet the race to add more profiles continues unabated. Recently it was reported that Dozens of police departments throughout Los Angeles County routinely have not tested DNA evidence collected in rape and sexual assault cases, and are unable to accurately account for thousands of pieces of evidence that could potentially help solve crimes, according to a report prepared by Human Rights watch. The estimated number of untested rape kits is as high as 10,000 some of which would now be excluded because the statue of limitations has expired. Apparently the same vexing problem of not processing crime scene kits holds true for many other states that must rely on county or state labs for processing. Critics ask what good is it to collect more profiles when the match between offender and crime scene is dependent on effective processing.

Mark Rothstein (University of Louisville) past President of ASLME as well as a project scholar has cautioned that each new application or extension of DNA forensics must be independently assessed and weighed against the privacy rights implicated. His concern is not that the collection of DNA will transform us into a nation of suspects but that once more information is in the hands of police it will be difficult to prevent other uses of the information by the government.

In an attempt to prompt debate and the sharing of views ASLME would like to hear your opinion. Should forensic databases be expanded to include samples from arrestees? Should minors be included and should misdemeanors be included? We want to hear your views. Join us in this discussion.