The following is an interview with Sheldon Krimsky and Tania Simoncelli, coauthors of Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties:
Question: How are people’s privacy rights being compromised by expanding DNA databases for innocent arrestees?
Sheldon Krimsky: Once a person’s DNA is in the national DNA database, that individual is faced with the following risks: a) he or she might be improperly implicated as a suspect if his/her DNA is left at a place that turns out to be a crime scene—i.e., by dropping a used cup; b) the family members of that person might unknowingly be implicated as suspects in the event that a “familial search” against the database results in a partial match with that individual’s DNA profile; and c) that innocent person might be stigmatized if police know that their DNA is on the national database—even if he/she was never convicted of a crime.
Tania Simoncelli: Many arrestees—who are innocent in the eyes of the law—are never charged, let alone convicted, of a crime. The courts have consistently found that the collection and testing of DNA by law enforcement is a “search,” thereby requiring a warrant supported by probable cause. To allow routine, forcible collection of DNA from arrestees—without a warrant or individualized suspicion—undermines the long-standing principle that those arrested are presumed innocent. To date, three of the four courts that have considered this issue have struck down arrestee data banking as unconstitutional.
Q: Tell us more about the “familial” DNA searches.
SK: When police cannot get an exact match between crime scene DNA and a person on the national database, they lower the stringency of the search to “near matches.” Once they get a “near match” they then pursue the family members of all those who met the “near match” criterion. That is called a “familial search.”
TS: Practiced routinely, familial searching effectively expands a so-called criminal database to include all close blood relatives of the individuals in that database. If this were to occur on a national scale, millions of innocent people would be placed under lifelong genetic surveillance, not because of anything they did, but simply because they happen to have a relative who committed a crime. The effects would disproportionately impact minority communities, further exacerbating existing racial disparities in our criminal justice system.
Q: What are the racial implications of obtaining DNA from arrestees and uploading the profiles on national databanks?
SK: People of color are stopped, searched, and arrested at a greater frequency than white people. If arrestee DNA profiles are summarily uploaded on the national DNA database, people of color will be disproportionately represented and more frequently objects of genetic surveillance.
Q: Does a bigger database necessarily lead to more or better crime-solving capabilities?
TS: No. At best, DNA database expansion is a situation of diminishing returns. DNA is only found at a very small fraction of crime scenes (less than 1 percent). The use of DNA in solving crimes is limited by our ability to detect and collect DNA at crime scenes, not by the number of known individual DNA profiles in the database. As we broaden the categories of individuals for inclusion in the database, we are adding more and more people to the database who are less and less likely to commit the kind of crime where DNA is even relevant.
Q: What are some of the problems that have occurred with regard to the quality of DNA evidence? Isn’t it the “gold standard”?
TS: While DNA testing, in theory, is more reliable than many other investigational techniques, it is not infallible. There is considerable variation in the nature and quality of DNA evidence. There is also ample opportunity for human error to occur at several steps of the process—samples can be switched or mislabeled, analyses can be misinterpreted, and improper handling of evidence can result in contamination. What is perhaps most disconcerting is not so much that these sources of error are possible, but instead that they are largely ignored in a system where a myth of DNA infallibility prevails.
Q: Why is it difficult for falsely convicted individuals to prove their innocence with DNA evidence
SK: Prosecutors, district attorneys, and police are disinclined to admit that they sent an innocent person to prison. The court system itself embraces the idea of “finality” and makes it difficult to reopen a case that has been tried—especially when appeals have ended. Sometimes the crime scene DNA is lost and they cannot use it to prove their innocence. Some states have restrictions on the access of postconviction DNA for testing.
Q: What is a DNA dragnet, and how can it compromise people’s privacy?
SK: When police decide to obtain the DNA of all men between the ages of 16 and 35 in a community that is an example of a “DNA dragnet.” Legally they cannot force individuals for whom they have no probable cause and no court warrant to yield their DNA, but they can intimidate people into giving them their DNA by telling them that if they do not, they will become a suspect.
Q: How does the U.S. system compare with systems from other countries?
TS: When you look around the industrialized world, you quickly see that the United States—and the United Kingdom—are outliers in many respects. For example, Australia and most European countries limit their databases to serious offenders, and none has enacted policies to systematically collect DNA from those who have not been convicted of a crime. Other countries have also employed additional safeguards for protecting individual privacy. For example, Japan and Germany require that DNA samples collected from known individuals be destroyed after profiling. Many countries require that all DNA records be automatically expunged upon acquittal or discontinuance of criminal proceedings.
Q: Would a universal database, including everyone’s DNA, be a better system than the one we have now?
TS: Some people have argued that a universal DNA database—for example, where everyone’s DNA is taken at birth and made available to law enforcement—would result in a fairer criminal justice system. However, racial bias is systemic to our criminal justice system. Simply placing everyone in the database may give the impression that the system is fairer, but will do nothing to address the biases that operate at the points of suspicion and arrest, prosecution, and conviction. At the same time, a universal database would provide law enforcement with an unprecedented tool for surveillance that would be ripe for misuse and undermine our most basic notions of personal privacy and autonomy.
Q: Do we have to choose between privacy and safety?
TS: Not at all. One of the most fundamental principles in this county is that a balance can and must be retained between safety and freedom. DNA technology is serving to disrupt this balance, not because of the technology itself, but because it has been aggressively promoted under the rubric of public safety with too little attention to core notions of privacy, autonomy, and fairness. This book seeks to identify ways of restoring that balance.