Will ‘Stop and Swab’ Replace Stop and Frisk?’ DNA Profiling and Race

Today is national DNA Day. It marks the day on which James Watson and Francis Crick along with Maurice Wilkins and Rosalind Franklin published their papers elucidating the structure of human DNA. 10 years ago today also marks the day that scientists working on the Human Genome Project announced that their efforts were nearly complete. That same day the U.S. Congress issued a proclamation declaring April 25th National DNA Day.  Having studied and worked in the field of genetics for two decades, this day has always passed with a sense of geeky pride for me. Pride in the work that I was a part of and pride in the fact that for one day many in the nation would share in the wonderment and potential of the human genome and experience what I felt almost every day. Nothing has changed for me in the excitement I feel or in my belief that research into our DNA will bring about great capacity to alleviate suffering, shatter long-held misconceptions about race and class, and help people live to their fullest potential. However, this year I cannot help but feel the technology I have always held in such high regard has been hijacked.

You see, a person’s DNA reveals a lot about them. This is mostly information concerning discontinuous traits like your blood type or clearly-defined diseases like hemophilia or sickle-cell anemia. Your DNA can also provide information on your likelihood of developing other diseases such as cancers or diabetes. Medical genetics may soon give precise odds that a person will develop any given disease, provide information about continuous traits such as height, and will likely provide us with all the information necessary to plan out our health care needs, dietary requirements, and exercise regimes for our entire lives. Of course, our DNA will not reveal quite everything about us.  It will not reveal as socio-economic status or race. Sure, DNA may provide someone with an intellectual advantage to boost earning potential or specify how and to what extent differing pigments are carried, but this is actually quite a subtle and continuous trait. There is also research which now demonstrates genetic markers for propensity towards anger or having a predisposition to violence. Scientists carefully warn that this information should not be used to make assumptions about any person since many of us carry these genes or markers; they simply aren’t expressed for some reason. Your DNA may also be able to do one other thing, convince a court or jury of your guilt or innocence.

It is this last item that is of particular concern to me on this National DNA Day.  Many in law enforcement have been working for more than a decade to expand laws authorizing the collection of samples from individuals taken into custody so that their DNA may be added to a national database and checked against DNA obtained at other crime scenes. After efforts to pass such a law in Nevada was unsuccessful two years ago, the legislature has again taken the issue up for consideration with Senate Bill 243, which passed the Senate last week by a unanimous vote.

This seems a particularly strange use of government resources, since the use of genetic information as a criminal dragnet goes against everything that one is taught as a scientist. You should never set out to prove yourself right, but always strive to prove yourself wrong. I have always found it strange that we as a society are willing to spend so much on law enforcement and the penal system and so little on education, research, and health care. As citizens, we should be demanding that our government focus its attention and use this technology to cure diseases and understand some of the factors which cause people to become prone to acts of violence. Instead, our government is allowing the FBI, not scientists, to push states to enact punishment-based laws while eroding civil rights and liberties in the process. The United States now has a national DNA indexing system known as CODIS [Combined DNA Index System]. It is run by the Federal Bureau of Investigation and provides, among other things, support for the expansion of model legislation for arrestee DNA collection.

Understandably, those in law enforcement want to be able to solve and prevent as many crimes as possible. And while most would agree that law enforcement should have the best tools available, I think people would rank the preservation of individual rights and liberties as an even higher priority. While many people question the use of the technology at all, others simply question the practice of collecting specimens from individuals prior to conviction and would be willing to overlook other issues if this additional precaution were taken. I myself have a number of concerns with the use of DNA profiling, ranging from the technological to the legal.  While some of my concerns could be lessened with changes to the bill, such as post-conviction sample collection and better regulations of the chain of custody and DNA lab, my concerns with racial equity and Constitutional rights cannot. There also seems to be unwillingness on the part of legislators sponsoring these types of bills to make any significant changes. The lack of compromise on the matter is puzzling. It was not until reading the Department of Justice report on the effectiveness of DNA profiling along with realizing that the FBI was pushing this model legislation did the unwillingness for change make sense.

Several reports over the last decade are revealing in what they conclude; they are also revealing in what they omit. In all the reports, the top contributing factors leading to a DNA profile match are the quantity and quality of the sample taken from the crime scene for which a match is sought. Several other factors appear on these lists, including techniques, training, and chain of custody. The one thing you will not find in these reports is the efficacy of the sample size database. Don’t bother trying to find such numbers either; the government has refused to release them. Studies in countries that utilizing or have used similar databases show that the size of the database makes little difference to finding a profile match. These studies demonstrate that an extremely high number of DNA profiles would be required in order to be of much use and that law enforcement is better served investigating the crime rather than spending time and resources waiting on some miracle technology to do it for them. In other words, the only way to make the system work is to drastically increase the number of people required to submit a sample for profiling. This explains the unwillingness to drop pre-conviction sampling and also explains why there has even been a push for expansion in other states, which now include such violations as walking a dog in California with the wrong length of leash.

As of the end of 2012, just over half of the states have enacted arrestee DNA collection laws. Nearly all of these laws are pre-conviction, and I for one do not find it to be a coincidence that 20 of those 28 states are at or below the Missouri Compromise Line. Oklahoma, Georgia, and Nevada are the exceptions. I mention this, because it brings me to my last and most important deal-breaker for these laws.

If you are reading this blog, then it should also come as no surprise to you that black men are six times more likely to be stopped by police, more than three times as likely to be taken into custody as a result and twice as likely to have some sort of altercation resulting in additional, serious charges. Once introduced or reintroduced to the criminal justice system, people of color are far more likely to be convicted of crimes for which they are charged and more likely to receive a prison sentence. In fact, nearly two-thirds of the U.S. prison population is comprised of people of color and 1 in 10 black males in their thirties will be in jail on any given day. These disparities that exist in our criminal justice system will also be extended to the DNA profile databases, subjecting people of color to disproportionately high rates of what will amount to a form of electronic surveillance without probable cause and without warrant for the rest of their lives. I would hope that after decades of Jim Crow, segregation, the War on Drugs, the school to prison pipeline, and stop and frisk, we wouldn’t want to add additional measures to further exacerbate the this epidemic.

Perhaps some in society are willing to accept a forfeiture of rights for those convicted of crimes. After all, it isn’t their rights they are willing to forfeit. But are people really willing to forfeit the rights to privacy, due process, and protection against unreasonable search and seizure for everyone?  There should be no debate regarding the violation of the Fourth Amendment to the Constitution, allowing defendants to access their own sample for the purposes of exoneration, and the disproportionate effects of racial profiling and the institutional racism of the criminal justice system. We should turn our eyes instead to the system that still struggles to confront and address the institutionalized racism that clouds much of today’s justice.

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