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Equal Protection, Physical Profiling and Racial Disparities

  1. The 14th Amendment of the United States Constitution states,
    1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (section 1).
  2. The Equal Protection Clause, Racial Profiling, and the role of genetics based testing: 
    1. This section of the 14th Amendment is commonly known as the Equal Protection Clause.  In short, it mandates that “the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances” 
      (http://www.law.cornell.edu/topics/equal_protection.html).  Racial profiling has come under scrutiny in the courts as potentially violating this clause.  However, the use of race in identifying a particular perpetrator does not automatically trigger an Equal Protection claim; rather, the “purposeful intent to discriminate must be present before there is a violation of equal protection in a racial setting” (Lindsy A. Elkins, 17 ND J .L. Ethics & Pub Pol’y 269, 287). 
    2. Antidote to racial profiling?
      1. As a policy matter, racial profiling is, to put it mildly, a controversial subject.  Yet, some commentators claim that with the use of genetic information, “DNA analysis could serve as an antidote to racial profiling in that reliance on genetic information in crime scene samples could correct tendencies to pursue one group disproportionately” (Lindsy A. Elkins, 17 ND J .L. Ethics & Pub Pol’y 269, 271).  Elkins writes,  “ No group is singled out for special treatment, and no is penalized because of hostility toward race.  If police make investigative use of racial information whenever that information is useful, then all racial groups are treated alike; none is stigmatized or disadvantaged in the enforcement of laws that apply with equal force to members of every race” (Id at 297) 
    3. Counterpoint
      1. Elkins argues that by looking at “population specific alleles” one can determine “the ethnic populations that are our traditional races” (Lindsy A. Elkins, 17 ND J .L. Ethics & Pub Pol’y 269, 283).  But this raises some perplexing questions.  Many Americans are a mixture of “traditional races” – and in terms of appearance, many Americans do not fit stereotypical models of racial categorization.  Furthermore, Elkins acknowledges that “[p]olicy implications could include the exacerbation of racism by ‘reinventing in statistical and molecular terms the arbitrary social apparatus of… the ‘One Drop Rule’” (Id at 285, citing Eric T. Juengst, 75 Chi.-Kent L. Rev. 61, 75 (1999)).
      2. S. Malia Fullerton, a postdoctoral research fellow in anthropology, has written on the use of “race” as a “research variable in biomedical research” (http://www.personal.psu.edu/faculty
        /s/m/smf15/BtS_readings_page.htm
        ). 
        1. According to Fullerton, within academia the notion that “biologically-distinct human races” do not exist is widespread. 
          (http://www.personal.psu.edu/faculty/
          s/m/smf15/BtS_readings_page.htm
          ).  However, in the field of bio-medical research there is disagreement regarding the claims of some scientists who argue that race and genetics can be accurately linked.  Nicholas Wade writes in the New York Times, that:
          1. “in a special issue on race published by the journal Nature Genetics, several geneticists wrote that people can generally be assigned to their continent of origin on the basis of their DNA, and that these broad geographical regions correspond to self-identified racial categories, such as African, East Asian, European and Native American. Race, in other words, does have a genetic basis, in their view.  But researchers from Howard University, a center of African-American scholarship, argued in the same journal that there was no biological basis for race and that any apparent link between genes and disease should be made directly, without taking race into account,” 
            (http://www.nytimes.com/2004/11/14/
            weekinreview/14nick.html?oref=login
            ).
          2. According to the Wade, “Most geneticists agree with the Howard researchers that the underlying genes, not race as such, is what is important for understanding disease.” 
            (http://www.nytimes.com/2004/11/14/
            weekinreview/14nick.html?oref=login
            ).
        2. Furthermore, Fullerton writes that some of the studies that have been used by geneticists to link genetic traits with racial ones have been used by anthropologists to prove the opposite.  Fullerton writes:
          1. “Genetic differences identified between different racial groups are then applied in an explanation of differences in disease risk or treatment response (in order to address the public health policy aims of reducing US ethnic health disparities by 2010). Ironically, this approach is defended by reference to anthropological studies of human genetic variation, many of which have previously been interpreted as providing support against the existence of discrete biological races” 
            (http://www.personal.psu.edu/faculty/
            s/m/smf15/BtS_readings_page.htm
            ). 
          2. According to Fullerton, “The dilemma of taking account of genetic variation at the population level, without investing genetic differences with unmerited explanatory power, has provoked active and on-going debate in the human genetics community, as well as in US society more generally” 
            (http://www.personal.psu.edu/faculty/
            s/m/smf15/BtS_readings_page.htm
            ).
  3. Racial disparities:
    1. At present there are significant disparities regarding race and conviction rates of certain crimes.  There is much contention as to the rationale behind these trends.  Are certain racial groups simply committing more crimes – or are these crimes more vigorously prosecuted when the perpetrators are of minority descent?  How do social, economic and cultural considerations factor into the interactions between the perpetrator, the police and the prosecutors? Regardless of how we answer these questions, and whether any of these claims are able to rise to Equal Protection status, the fact remains that there are racial inequities within the criminal justice system, and “[t]here can be no doubt that any database of DNA profiles will be dramatically skewed by race if the sampling and typing of DNA becomes a routine consequence of criminal conviction.  Without seismic changes in Americans’ behavior or in the criminal justice system, nearly 30% of black males, but less than 5% of white males will be imprisoned on a felony conviction at some point in their lives” (D. H. Kaye & Michael E. Smith, 2003 Wis. L. Rev. 413, 452).  Kaye and Smith note that, “If legislation were to authorize DNA sampling for traffic offenses as well, then a majority of the entire population might eventually find its way into the database” – in which case, might it not be more effective to simply make the databank universal?  Kaye and Smith conclude by stating that a population-wide database obviously could not abolish all the racial inequities within law enforcement (Id at 459).  They write:
      1. “[E]ven the most inclusive database will not cure the racial distortions that result from selectively enforcing drug laws against African Americans or from enforcing even-handedly drug laws that have a disparate impact on these citizens.  But… [we should not ] deny its power to mitigate what has become a crippling problem. It is simply more fair and more useful to include DNA identification profiles from all whites as well as from all other groups than it is to amass databases predominately consisting of the DNA profiles of African Americans and other minorities” (D. H. Kaye & Michael E. Smith, 2003 Wis. L. Rev. 413, 459).