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Genetics and Criminal Law: Ethical Considerations

V. Universality:

    1. A number of legal scholars have posited the construction of a “universal” DNA database in order to aid in the identification of both victims and perpetrators of crimes  (D. H. Kaye & Michael E. Smith, 2003 Wis. L. Rev. 413; Allison Puri, 24 B.C. Int’l & Comp. L. Rev. 341 (2001);  John P. Cronan, 28 Am. J. Crim. L. 119 (2000)). (*link at (II)(l)(ii), regarding increased speed in identification of perpetrators; (II)(j)(ii), regarding increased efficacy of identification of perpetrators).   A universal genetic database would seek to have coverage that was as inclusive as possible for the entire population, as opposed to solely testing and retaining samples of individuals who have been convicted for certain crimes.  The 9th Circuit Court has recently ruled that it is impermissible to take and retain the DNA information of prior convicts for criminal databanks, for it is an  illegal invasion of privacy as the information is taken without legal suspicion that the convicts were involved in other crimes (*link at (I) (c)(ii)(1)*).  One could argue that similar criticisms could be levied upon any attempt to create a population-wide genetic database.  A similar rationale was stated by Justice Utter of the Washington Supreme Court, as to why a universal DNA databank should be prohibited:
      1. “We should be appalled, I hope, if the State mandated non-consensual blood tests of the public at large for purposes of developing a comprehensive… DNA databank.  The Fourth Amendment gauranty (sic) against unreasonable searches and seizures would mean little indeed if it did not protect citizens from such oppressive government behavior” (Rebecca Sasser Peterson, Note: DNA Databases: When Fear Goes Too Far, 37 Am. Crim. L. Rev. 1219, 1238, citing State v. Olivas, 856 P.2d 1076, 1094 (Wash, 1993) (Utter, J., concurring)).
    2. Privacy:  But are there ways in which the invasion of privacy could be minimized to the extent that the intrusion is overwhelmingly outweighed by the public benefit?  (*link at (II)(l), regarding privacy issues, generally; (II)(l)(ii) regarding arguments about the scope of genetic evaluation). What are the privacy interests that are being encroached upon by mandating universal DNA database inclusion?  Some analysts divide the privacy interests into two broad categories:
      1. During the physical extraction of the genetic sample: Generally – individuals have some privacy intrusion with the physical taking of the samples.  But commentators like Cronan argue that the benefit to the state/society outweighs the comparatively minimal nature of the intrusion (Cronan, 28 Am. J. Crim. L. 119, 147).  Cronan contends that the physical extraction of the genetic sample should be concurrent with the process of birth.  According to Cronan, “extracting blood from the infant is part of the delivery process.  At no other point in life is taking a genetic sample a routine procedure that does not constitute any added personal intrusion” (Id. at 137) For immigrants, Cronan posits a system where the collection of genetic samples would be integrated with the process of issuing VISAs (Id. at 138).

        But despite Cronan’s arguments, “there is no doubt that blood samples taken from infants by governmental edicts would ‘constitute searches of “persons” and depend antecedently upon seizures of “persons”’” (D. H. Kaye & Michael E. Smith, 2003 Wis. L. Rev. 413, 442, citing, Schmerber v. California, 384 U.S. 757, 767 (1966)).  Kaye and Smith instead posit a future where DNA could be “acquired by applying a sticky pad to the infant’s skin to acquire some exfoliating, epidermal cells without even a scratch” (Id at 442).  This situation might be more like the warrantless acquisition of fingerprints, which is permissible under the Fourth Amendment because “fingerprints are an identifying factor readily available to the world at large” (Id, citing, Palmer v. State, 679 N.E.2d 887, 891 (Ind. 1997))

      2. Profiling of the sample and indexing to the databank: After the information has been extracted and typed using markers that have no known correspondence to “health or other physical or metal traits and propensities” (*Link to (II)(l)(ii), regarding arguments about the scope of genetic evaluation) the sample would then be destroyed, as law enforcement agencies should not need, nor be permitted “to handle, much less retain, the samples” (D. H. Kaye & Michael E. Smith, 2003 Wis. L. Rev. 413, 438).  The ideal model would be to construct a mechanism which would both “extract an identifying profile and destroy the sample at the same time” thus protecting the privacy of individuals to the greatest extent possible regarding the content of their DNA (Id).  Of course, if an individual turned up as a match with DNA left at a crime scene more analysis and investigation should be completed in order to more fully determine the likelihood of the individual actually committing the crime.  As discussed previously, the sampling procedures for genetic information leave some margin of error.  (* Link to (II)(l)(iii), regarding arguments about the scope of genetic evaluation). “Because scientists do not read the entire DNA, looking for any and all variations, two samples conceivably could appears as exact matches but actually differ in some other portion of the strand” (Allison Puri, 24 B.C. Int’l & Comp. L. Rev. 341, 347-48) (* Link to (IV)(b)(ii), regarding Raymond Easton’s case). Furthermore, as seen in the Houston Police Crime Laboratory scandal, laboratory reliability is critical. (*Link to (IV)(d)(i), regarding the Houston PCL). As such, it is important for jurors and the public at large to understand more critically the benefits and limitations of genetic analysis, and “proper weight must be applied to apparent matches” (Allison Puri, 24 B.C. Int’l & Comp. L. Rev. 341, 349).
      3. But even if minimal physical intrusion and proper administrative measures were taken regarding the acquisition and use of DNA for universal databanks, some critics argue that a substantial intrusion of privacy exists nonetheless, in terms of assessing our own human dignity.  By submitting our DNA into governmentally mandated databanks we create a “nation of suspects,” where our potential criminality is always already presumed.  Some commentators counter that “[p]rivacy is an important value, but the privacy threat from digital records of DNA types reveal nothing about a person’s nature or status is not self-evident” (D. H. Kaye & Michael E. Smith, 2003 Wis. L. Rev. 413, 446).  Thus, according to this argument the matter is not so much about the construction of an adversarial relationship between a government and its citizens, but rather, about constructing a more efficient means of administration regarding the identification of individuals within a large society.  Furthermore, they claim that,“[e]stablishing a system that has the ability to link individuals to crime scenes to the greatest possible extent without probing their minds or invading their homes or possessions does not make everyone a “suspect” in any meaningful or problematic sense” (D. H. Kaye & Michael E. Smith, 2003 Wis. L. Rev. 413, 446)
    3. Financial Cost: (* Link to (II)(j), regarding financial costs in genetic dragnetting). Even if everyone was willing to voluntarily submit genetic samples for a universal databank, what would be the approximate financial costs for this undertaking?
      1. In 2000, genetic testing cost about $4000 per case (involving inmates who had been convicted and had been required to submit genetic samples for database entry) (Jerilyn Stanley, 32 McGeorge L. Rev. 601, 613).  As of December 26, 2003, the  DNA retests on 128 cases involved in the Houston Police Crime Lab scandal have cost the city of Houston more than $1.1 million  “and with less than $240,000 remaining from more than $1 million in contracts awarded to three private labs to retest evidence, according to the city controller's office, the effort promises to cost more into the new year” 
        ). (*Link to (IV)(d)(i), regarding the Houston PCL).
      2. Presently there already exists a backlog, due to lack of funds and staff, of 750,000 samples nationwide “waiting to be profiled and entered into databases” (Lindsy A. Elkins, 17 ND J.L. Ethics & Pub Pol’y 269, 293).
      3. According to the FBI, at  present a universal genetic databank is simply cost prohibitive, but it is likely that as technology advances, “the cost of DNA will decrease” (Lindsy A. Elkins, 17 ND J.L. Ethics & Pub Pol’y 269, 294).

Continue to Section VI: Equal Protection, Physical Profiling and Racial Disparities