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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

DNA “Evidence”, Privacy, and Racialized Dragnets
by nancy a heitzeg

DNA. Big Science – with a capital “S”. We are blinded by the seeming certainty of it,  a notion reinforced by endless variations of CSI -like crime shows and the growing number of Innocence Project exonerations that rely on the power of the double helix. The so-called “Fingerprint of the 21st Century”.

Deceptively simple, the key word being deceptive.

The role of DNA in criminal investigations increasingly raises critical questions – most immediately surrounding the right to privacy and Fourth Amendment protections against unreasonable search and seizure. This issue is the central matter in the current Supreme Court case Maryland v. King.

But there is much more at stake than privacy rights. DNA collection under the auspices of criminal injustice raises questions about accuracy and efficacy, and at rock bottom, risks for the renewed reification of “race”, all wrapped in the guise of “race-neutral” policy.

Fourth Amendment Questions re Warrantless DNA Collection

On February 26, the Supreme Court heard oral arguments in the case of Maryland v. King. The case calls into question the practice of collecting DNA samples – without a warrant – from those arrested, but not convicted of any crime. And in the words of Justice Alito, it may be “perhaps the most important criminal procedure case that this Court has heard in decades.”

Jason Silverstein summarizes the details of the case in The Nation:

The case goes back to April 10, 2009, when Maryland police arrested Alonzo King on assault charges. A DNA sample was collected, and four months later, it was found to match evidence from an unsolved rape, which led to King’s conviction for the crime. The case is precisely the sort of example given by proponents of broad DNA collection: DNA has the power to identify the guilty and exonerate the innocent.  But in King’s case, the Maryland Court of Appeals determined that arrestees have privacy expectations that outweigh the state’s crime-solving interest.

In its petition to the Supreme Court, Maryland argues that collecting DNA is no more invasive than its twentieth-century counterpart, the fingerprint. But King and opposing groups filing friend of the court, or amicus, briefs respond that unlike fingerprints, DNA is a trove of personal, medical and ancestral information. What’s more, DNA solves cases far less frequently than the state suggests. In 2011, Maryland police collected 10,666 DNA samples; only nineteen led to an arrest. The state’s interest is thus not identification but investigation—and the Court has never
 permitted suspicion-less searches of suspects without a warrant. If it does in King, there will be no principle limiting when our DNA may be collected in the name of fighting crime.

Several key legal questions are raised ( as summarized below by The Genomics Law Report), and the Court’s answers will have implications for our understanding of privacy protections and the scope of  “reasonable search and seizure:

• Does the fourth amendment allow States to collect and analyze DNA from people arrested and charged with serious crimes?

• Does the Fourth Amendment permit the warrantless collection and analysis of DNA from a person who has been arrested for, but not convicted of, a criminal offense, solely for use in investigating other offenses for which there is no individualized suspicion?

• Which test is applicable for the constitutional analysis: a balancing test (weighing the relative interests of the government with the privacy interests of the individual, who in this case is Mr. King) or a special needs test (articulating a specific exception to the requirement of a warrant)?

• Is there a legitimate, reasonable expectation of privacy in one’s DNA?

• Does the government have a compelling interest in having access to information about adjudicated and possible (but not yet adjudicated) criminal activity?

• What does the word “identification” mean for Fourth Amendment purposes?

• Must this case be decided on the facts of today or the possibilities of tomorrow?

The implications of this case are far-reaching –28 states and the Federal government engage in this practice. From the National Clearinghouse for Science, Technology and the Law:

A new wave of legislation is sweeping across the nation with nearly half of the states currently requiring the pretrial collection of DNA samples from individuals who are arrested for various crimes but not yet convicted. Collected DNA samples are submitted to the Combined DNA Index System (“CODIS”) and are compared against other DNA profiles in CODIS… However, the laws are not uniform among the states. Several states, including Maryland and Tennessee require a probable cause hearing prior to the DNA being loaded into a DNA database. Some states, such as Alabama, California, and Florida require DNA samples to be submitted if an individual is arrested for committing any felony offense. Other states, including Arizona, Maryland, and New Mexico require DNA samples to be submitted only in cases where an individual is arrested for a violent felony such as murder or sexual assault. Additionally, state laws vary whether juveniles must submit DNA samples upon arrest. Florida, Kansas, Louisiana, and South Carolina specifically include juveniles while other states do not.

These laws have been subject to many legal challenges — including being ruled unconstitutional in Minnesota – with mixed results overall. Maryland v. King will be the first time the Supreme Court has ruled on the issue, and their decision will shape the direction of future state and federal data collection efforts. Many observers of the Court fear that the decision will further erode privacy expectations and ensconce the surveillance state.

Data Collection and Crime Lab Errors

Privacy questions are compounded by issues related to the quality of data collection practices and the accuracy of laboratory results. DNA evidence — like all crime scene data — is dependent on humans and subject to their errors, both at the scene and in the lab.

Any one who even minimally paid attention to the OJ Simpson trial learned this lesson eons ago as Barry Scheck and Peter Neufield reduced seemingly insurmountable and conclusive DNA evidence into a widening pool of reasonable doubt with questions about crime scene and laboratory contamination, chain of command and evidence custody, and possible scenarios of LAPD planting evidence. Given that most defendants cannot afford DNA experts at trial or that most cases are less high profile with lower police/prosecutorial expectations of scrutiny, the implications are truly frightening.

Beyond this, several recent laboratory scandals have revealed just how dubious the results of DNA testing may be. Cross-contamination, speedy and shoddy lab work and sometimes just plain fabrication are all possibilities. In addition to the Houston crime lab scandal  — which involved DNA testing for the bulk of the state’s death penalty cases — there is more. Just one example:

Last year, a Boston chemist named Annie Dookhan was accused of mishandling thousands of samples during the nine years she worked in a state lab analyzing evidence in narcotics cases. Dookhan was known for her preternatural speed, often analyzing more than 500 samples per month. (The average chemist analyzes between 50 to 150 samples per month.) As it turns out, she was fast because she was sloppy. Under questioning, she admitted that she rarely followed proper procedures; the Boston Globe recounts one supervisor’s astonishment that “Dookhan did not seem to use a microscope, which is necessary to confirm that a substance is cocaine.” Now, approximately 34,000 cases are being reviewed by the state, and some of the 1,141 convictions in cases where Dookhan handled the evidence have already been overturned.

It’s tempting to wave these incidents off as the work of rogue technicians. But they also indicate a systemic problem with the way forensic labs are managed and administered, and raise important questions about the prevalence of human error in evidence work.

Multiple this by literally millions of cases in thousands of labs with no national standards and required accreditation, and the picture is stunning. A report from Prison Legal News, Crime Labs in Crisis: Shoddy Forensics Used to Secure Convictions, details the nature and extent of the trouble:

These types of problems have led to scandals at dozens of crime labs across the nation, resulting in full or partial closures, reorganizations, investigations or firings at city or county labs in Baltimore; Boston; Chicago; Colorado Springs, Colorado; Dallas; Detroit; Erie County, New York; Houston; Los Angeles; Monroe County, New York; Oklahoma City; San Antonio, Texas; San Diego; San Francisco; San Joaquin County, California; New York City; Nashville, Tennessee; and Tucson, Arizona, as well as at state-run crime labs in Illinois, Montana, Maryland, New Jersey, New York, Oregon, Pennsylvania, Virginia, Washington, North Carolina, West Virginia and Wisconsin, plus the federally-run FBI and U.S. Army crime labs. Forensic “expert” scandals have also been reported in the United Kingdom.

The origins of such problems include unqualified or incompetent lab workers, personnel using false academic credentials, contamination in labs that cause false test results, employees falsifying test results to “help the prosecution,” and lab examiners committing perjury. Contributing to these problems is a lack of qualification standards and industry-wide training requirements for lab workers.

So much for “science”.

Racial Reification and DNA Dragnets

The persistent racial disparity in arrest creates another, more far-reaching dilemma: the use of genetic material to re-inscribe “race” as biological and code certain racial groups as “criminals”. This is an old reductionist tendency, from which “science” and criminology has never fully recovered. Always the elusive search to find that single causal variable that characterizes both “race” and  then, also “criminality”.  Body – build, IQ, inherited traits, aka Old School Eugenics, and now via Genomics, Eugenics Redux.

Since the completion of the Human Genome sequence, there have been warnings of this possibility. Troy Duster, esteemed sociologist and grandson of Ida B. Wells, has been at the fore. As early as 1990 in Backdoor to Eugenics, Duster was warning scientists of the potential to once again reduce ‘race” to an essentialist biology with genetic markers. From Scientific American:

“Race doesn’t exist, the mantra went. The DNA inside people with different complexions and hair textures is 99.9 percent alike, so the notion of race had no meaning in science. At a National Human Genome Research Institute (NHGRI) meeting five years ago, geneticists were all nodding in agreement. Then sociologist Troy Duster pulled a forensics paper out of his briefcase. It claimed that criminologists could find out whether a suspect was Caucasian, Afro-Caribbean or Asian Indian merely by analyzing three sections of DNA…

Those techniques have revealed that race is minor at the DNA level. The genetic differences between any two randomly selected individuals in one socially recognized population account for 85 percent of the variation one might find between people of separate populations. Put another way, the genetic difference between two individuals of the same race can be greater than those between individuals of different races–table sugar may look like salt, but it has more similarities with corn syrup…

Specific variations in DNA can be linked to ancestral geographic origins, but those differences only occasionally offer a medically important clue. They fail to define any essential characteristics of a whole group. Race, itself a fluid idea, is part of the environmental context of the genome, Duster suggests. “Race is a relationship,” he says. “When you talk about race as a relationship, it prevents anyone from giving it false meaning.”

As the collection of DNA at arrest has expanded, so has the potential for the construction of racialized profiles of the “criminal.” African-Americans made up 40 percent of the Combined DNA Index System (CODIS), solidifying the deep-seated notion that the complexity of crime can be reduced to sheer biology. Further, many states use DNA partial matches to extend the search to family members and other relatives, widening the net and extending the database further, in what the Howard University brief in Maryland v. King terms “a probable cause generator” that particularly erodes the rights of communities of color.

The reality of racial disparity in arrests, of course,has nothing to do with genetics or a propensity for “crime” ( a veritable mountain of data points to comparable rates of law violation across so-called racial lines), but instead to public policy. Racial profiling, institutionalized racism in housing and education, more. But, with the backwards logic of Old School Eugenics, the new version will rely on practices that are “race-neutral” in name only to collect racially skewed data which will then be used to justify increased criminalization and surveillance of communities of color. A Self-fulfilling Prophecy that they will then call “Science”.

Again, from The Nation:

Forensic DNA collection, as a modern method, reveals old truths about how we criminalize entire populations. In a racially biased system, DNA collection on arrest creates a racial dragnet. But that bias becomes invisible when the data are considered neutral. When one group is overrepresented, whether in statistics or a database, its members become coded as criminals—and clearly in need of additional surveillance. If the Court permits DNA collection upon arrest, law enforcement may solve some crimes, but only as it tracks a wider and wider pool of innocent people.

Over-representation, racialization, the reification, once more,  of race as biology, and the solidification of the coding of race as crime.

The New Eugenics – nothing but.

Thoughts…

The use of DNA databases by law enforcement raises chilling questions that certainly impact the privacy rights of all of us. But as with most “race-neutral” policies, this practice will weigh most heavily on communities of color as they are subjected to escalated intrusions, increased surveillance, and perhaps, most significantly, to renewed attempts to reify both “race” and its connection to “crime”.

It is an old story to be sure, one named over 100 years ago by Fredrick Douglass as “the imputation of crime to color.” But it emerges again in what seems to be a renewed effort to pathologize people of color, and to locate their sociological disadvantage — not with systemic racism and classism – but in their alleged personal and/or physical failings. Missing Fathers, Sagging Pants, Female-headed Households, Exposure to Lead, or again now, their Genes.

These notions are always misguided, and indeed dangerous, but even more so when even credence by “Science.” I leave you with the concluding paragraph from the 1991 New England Journal of Medicine review of Duster’s Backdoor to Eugenics:

Duster’s warning that the medical applications of modern genetics may harbinger a new era of institutionalized eugenics cannot be ignored. If Duster accuses science of looking at facts colored by a prism of genetic preconceptions, then it should also be recognized that Duster himself is looking at science through the fouled glass of history, in which racism, ethnocentricity, and antisemitism have often assumed the mantle of legitimate philosophy and science. All geneticists should read Kevles’ In the Name of Eugenics (New York: Knopf, 1985) or Gould’s The Mismeasure of Man (New York: Norton, 1981 ) to recall how eugenics, which is now universally recognized to have been overtly racist, evolved from fundamentally flawed science and nationalist philosophy to alter public perceptions and policies even in the liberal democracies of the Western world. Are we certain that this could never happen again?

Resist.

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