I don’t know how we, as members of the community, who are concerned with public safety, can look victims and families in the face knowing we can do things in the lab to help bring perpetrators of serious crimes to justice. To me, it’s unconscionable not to use these methods to solve serious crimes and to prevent future crimes.
Scientific truth-making . . . is always a social enterprise. . . . As such, even scientific claims are subject to distortion, through imperfections in the very human systems that produced them. In attempting to render justice, the law’s objective should be, in part, to restore to view these potential shortcomings, instead of uncritically taking on board a decontextualized image of science that ignores its social and institutional dimensions. Doing justice, after all, demands a complex balancing of multiple considerations.
Over the last 20 years we have witnessed an extraordinary explosion in the development and use of DNA technology in the criminal justice system. Initially DNA was relied on as an occasionally useful tool in investigating very serious crimes. In those cases DNA, sought from suspects by way of a court-issued warrant supported by probable cause, was compared with DNA left behind at the scene of a heinous crime. But as we have described throughout this book, this fairly circumscribed use of DNA analysis has given way to a massive and ever-expanding system of collecting and permanently retaining DNA for ongoing investigation and use. Most recently a number of law-enforcement policies, techniques, and practices have expanded to allow police to take DNA from innocent people—people who have never been convicted and in some cases never even suspected of a crime.
As described in chapters 2, 3, 4, and 6, the expansion of DNA databases to arrestees, familial searching, the increasing use of DNA dragnets, and surreptitious DNA collection are all ways in which innocent people are increasingly being brought into the criminal justice system by way of their DNA. The mass expansion of DNA collection to innocent people marks a radical shift in the way in which DNA is used in the criminal justice system, one where DNA is starting to look much more like a surveillance tool than a tool for criminal investigation. Throughout this book we have explored multiple dimensions of these developments, including their impact on crime solving, their role in exonerating the wrongly convicted, their implications for privacy, and their potential for error. But perhaps the overriding issue at stake is whether DNA data banks, now a mainstay in all modern industrial societies, are bringing greater justice to the policing functions of civil society, while minimizing injustice. Will ever more DNA expansion necessarily advance the cause of justice?
The answer may very well depend on how one perceives “justice” and its role in the criminal justice system. When we speak of the “criminal justice system,” it usually refers to a set of practices and institutions of government directed at maintaining social order, defining, deterring, and mitigating crime, and establishing sanctions, penalties, and rehabilitation for those convicted of crimes. The system includes the perpetrators and victims of crime, the falsely accused and wrongfully incarcerated, the courts, the police, prosecutors, the defense bar, the written body of legal precedents established in case law, and the complex tapestry of regulations and rules that set standards of behavior and accountability within the criminal justice subsystems. But how does “justice” enter into “criminal justice”?
Concepts of Justice in Criminal Law
In law enforcement and its ancillary institutions the concept of justice is expressed in several distinct forms. Retributive justice (also punitive justice) is based on the idea that the guilty must be apprehended and punished for their crimes. Without some form of retribution, it is often argued, there would be no deterrence against violating the laws of civil society and committing injustices against persons or the state. The victims of crimes are often the most vocal about seeking retribution. Retributive justice draws from the ethics of “an eye for an eye” or the philosophy of the “just desert,” namely, that “you reap what you sow.”
The concept of restitutive (restorative) justice signifies that the victim’s losses shall be restored or that some effort is made to pay restitution for one’s crimes. In the criminal justice system restitutive justice is introduced in particular cases where a convicted felon is obliged to repay the victim with some form of restitution for causing diminished capacity or to repay the state for crimes against property. Tort law is premised on elements of restitutive and retributive justice, for example, when courts award punitive and compensatory damages for losses. Some states provide financial relief for those wrongfully convicted and incarcerated for a crime, where the amount of compensation depends on the length of the term served.
Procedural justice seeks to ensure that those charged with a crime obtain adequate counsel and are afforded equal opportunity (compared with anyone else charged with a similar crime) to prove their innocence. The term “due process” or “due process of law” implies that the government must respect all the legal rights that are owed to an individual, and that a law shall not be unreasonable, arbitrary, or capricious. The constitutional guarantee of due process of law is found in the Fifth and Fourteenth Amendments to the U.S. Constitution. The Fifth Amendment prohibits the federal government from arbitrarily or unfairly depriving individuals of their basic rights to life, liberty, and property; the Fourteenth Amendment applies these same limitations to the states. The Fourteenth Amendment has been interpreted by the U.S. Supreme Court to incorporate the basic civil liberties protections of the Bill of Rights, so that those protections also apply to the states, as well as to the federal government. Injustices include unwarranted intrusion into one’s privacy, incarceration without being charged of a crime, and the failure to afford an individual charged with a felony the right to a trial by an impartial jury of one’s peers.
Procedural justice also implies that justice for an individual is associated with fair and equal treatment under the law. This includes the idea of “fair sentencing.” It would be unjust if some people received disproportionately harsh sentences for the same crime. Procedural justice also includes the ideas of “presumed innocence” and “burden of proof.” Innocence is the default state unless one can demonstrate otherwise. In addition, it is the state’s burden to demonstrate guilt rather than the suspect’s burden to prove innocence.
Justice and Forensic DNA
Law enforcement’s primary role is to investigate crime and prosecute criminals. The Combined DNA Index System (CODIS) in the United States and similar systems in other countries have been explicitly created as tools toward these ends. This vision of justice that DNA is intended to serve—at least from the perspective of those who employ it—is perhaps narrower than the one discussed in the previous section because it focuses more heavily on retribution and restitution and much less on procedural fairness and equality. A narrow vision of justice such as this might very easily embrace the maximum expansion of DNA technology in the criminal justice system, which elevates the resolution of a crime and punishment of the guilty above all other matters.
On the other hand, a vision of justice that values not only crime solving but also notions of fairness, equity, and privacy might view expansions of DNA technology in a different light. The often-debated question “How many offenders might we tolerate escaping in order to avoid an innocent person being wrongfully condemned?” becomes central when procedural fairness is valued. Questions of wrongful identification as a result of error or abuse associated with DNA testing also become relevant in this formulation of justice. Similarly, questions about the disproportionate impacts of long-term genetic surveillance on minority communities and the broad societal implications of widespread data banking for privacy and autonomy take on special significance.
There is no question that debates about the appropriate role of DNA in the criminal justice system are directly tied to competing notions of justice. One who believes that criminals must be caught at any expense might subscribe to the approach “the bigger the database, the better” to DNA data banking. But even for those of us who agree that procedural fairness and equity are of extraordinary importance in achieving justice, the question whether more DNA will further that cause is still murky at best. As Simon Cole writes, “Seemingly egalitarian proposals, such as a universal DNA database, will not necessarily have equalizing effects. Whether DNA profiling technology as a whole mitigates or exacerbates inequality does not yield a single, simple answer. Rather, the answer depends on the ‘equality of what?’ . . . and the equality of whom.”3
Differences of opinion about the use and expansion of forensic DNA technology are also entrenched in different understandings of the role and limitations of science. When DNA was introduced into the criminal justice system, a number of experts testified that false positives were impossible in DNA testing.4 A defense attorney in Virginia characterized the perceived infallibility of DNA as follows: “If you put God on the witness stand . . . and God’s testimony conflicted with the DNA evidence, everyone would automatically say, ‘Why is God lying like this?’” 5 No credible scientist would claim that DNA is infallible today, and the laboratory scandals that have arisen around the country have made clear that human error can and does occur in the processing and typing of DNA samples (see chapter 16). Nevertheless, there is still a great divide between those who see these errors as exceptions to the rule of science as an objective and truth-telling endeavor and those who instead view it as an inherently social enterprise open to human fallibilities.
There is a very clear difference in how these perspectives become operationalized in policy. For those who believe that all the scientific and technical issues have been resolved, the focus is on the truth revealed by the science. Moreover, DNA science becomes the ultimate and unquestioned authority for discovering guilt or innocence. Other sources of knowledge are secondary and defer to DNA. It was perhaps this type of near-blind faith in DNA to deliver justice that led to the embarrassing investigational blunder in Germany discussed in the introduction to this book. On the other hand, for those who embrace the idea that, even with strong consensus, science is a social enterprise, then its vulnerability to error, bias, and misuse must always be a continuous presence in law enforcement. Moreover, the complexity of DNA testing relative to nontechnological methods of criminal investigation, such as eyewitness identification, means that DNA procedures and processes are left to a narrow class of “experts” and are not subject to public scrutiny. The question whether justice is advanced by DNA must take into account the potential that error, abuse, or misuse can occur unchecked or unreported as a result of this limitation.
Previous chapters have discussed the impact of forensic DNA databases on three groups of individuals: those convicted of and serving sentences for a crime, those arrested for or charged with a crime, and those who come under surveillance by way of their DNA (for example, through a dragnet or through a familial relation with an individual on the database). Certainly questions of fairness weigh most heavily when DNA is taken, stored, and analyzed from the innocent, or when the innocent, simply by nature of their DNA, fall under the lens of suspicion.
In cases where police, in their effort to find suspects and solve crimes, suspend or exceed the protections that suspicionless people traditionally have been afforded, the question whether DNA is advancing justice becomes especially relevant. We have illustrated violations of personal liberty in cases where police, in pursuit of an unknown perpetrator, undertake a DNA dragnet in a manner whereby individuals are coerced or pressured to give a DNA sample when there is no probable cause that links them to the crime. Efforts by law enforcement to coerce, intimidate, scare, or penalize individuals who choose not to participate in a DNA dragnet constitute a form of injustice, despite the best motives of police and prosecutors to bring about retributive justice on behalf of the crime victims and the state. Convicting alleged felons by “any means necessary” is a form of “frontier justice” that violates safeguards guaranteed by the Constitution.
The surveillance, intimidation, or coercion of innocent family members of a convicted felon whose DNA fulfilled the criterion of a low- or moderate-stringency match in a forensic DNA database against a crime-scene sample violates the presumption of innocence afforded to the members of that family. The mere probability of “DNA resemblance” without any other evidence of probable cause or suspicion is not sufficient to violate a person’s presumed innocence or civil liberties. Although the science of DNA identification has an important role to play in affirming or disaffirming a match between crime-scene biological evidence and the DNA of a suspect, there is nothing in the science or in our accepted principles of social justice that justifies using DNA science as a “net” to collect suspects based on a blunt notion of “DNA resemblance.” Once the idea of familial searches is accepted, it can easily entangle larger numbers of innocent people in the web of criminal police investigations under the rationalization that genetic resemblance raises the probability that one is implicated in criminal activity. As was pointed out in chapter 4, familial searches disproportionately affect certain ethnic, racial, and socioeconomic groups that tend to have larger families, as well as people who happen to have a relative who was convicted of a felony (and in some states those who have been arrested for, but not convicted of, a crime). The practice of familial searches in DNA databases reinscribes into our cultural mind-set the idea of “crime families” or groups whose members have a genetic propensity toward criminal behavior.
Of what relevance to our sense of justice are the collection and deposition in a database by law enforcement of the forensic profiles of individuals who have never been convicted of a felony offense or even charged with one? Criminal investigations will inevitably lead to some blind alleys, turn up refuted initial hypotheses about suspects, or incur investigational errors and forensic misconduct. As a matter of fairness, why should errors or false hypotheses about a crime suspect, who is presumed innocent, place that individual under permanent DNA surveillance? That is precisely the injustice committed by maintaining the forensic DNA profiles and biological samples of some selected class of innocent individuals. Under the Equal Protection Clause of the Fourteenth Amendment, it would seem reasonable to presume that all innocent people (people who have never been convicted of a felony) should be treated equally with respect to the collection and banking of their DNA by the government. If police are more likely to bring in suspects from certain neighborhoods for questioning in states that include arrestee forensic DNA profiles in state databases, citizens in those communities will be disproportionately represented in CODIS, and as a result their DNA profiles remain under the constant eye of criminal justice. A person picked up for exceeding the speed limit may someday be routinely checked to see if his or her DNA profile is in CODIS. The mere appearance of that person’s profile in CODIS can have a stigmatizing impact, especially when racial minorities and individuals in lower socioeconomic strata are more likely to show up.
Another consideration of justice involving DNA forensic science arises in the proper balancing of societal interests in solving crimes against the privacy interests of individuals (chapter 14). The courts have a long tradition of balancing these interests. Thus when the use of surveillance technology has a proven record of preventing or solving crimes, the courts have sometimes ruled in favor of the state’s interest over the protection of individual privacy. Even in balancing, the courts place controls on an overzealous state. Certainly the technology must be shown to work effectively, such as radar used by police on highways. But even in cases where the technology is efficacious, such as infrared detectors, courts have required a warrant when the technology is used to detect criminal activity in one’s home.6 In chapter 17 we have cited evidence that expanding DNA databases to include innocent arrestees reaches a point of diminishing returns in the state’s interest in solving crimes. If we consider that “balancing” of interests is a form of social justice, we should recalibrate the balance when arrestee databases are not achieving their goals and at the same time are placing increasing numbers of innocent people under “genetic surveillance.” Bruce Budowle, one of the original architects of CODIS and a strong supporter of the use of DNA databases to develop investigational leads in criminal cases, has pointed out that the actual utility of the database system is currently not known:
There is no indication if the tax payer has gotten his/her money’s worth regarding solving crime or whether a victim’s case will be resolved because sufficient resources and processes are not in place to assess the overall performance of CODIS. Simply put, the actual numbers of success are not known. Therefore, we are left only with balancing decisions of expansion and privacy on the value of individual victims, the number of hits, and the assumption that most hits translated into successful investigative leads.7
As for the category of individuals who have been convicted and sentenced to prison terms for felony offenses, as we have discussed in chapter 14, the courts have made clear that the balancing of interests points in the direction of the state in questions whether convicted felons should have to turn over their DNA. That balancing becomes less clear when the question turns to individuals convicted of minor crimes or crimes where DNA evidence is generally not of interest or use (e.g., low-level drug possession), or when the individuals involved are juveniles.
We have also discussed the role of DNA in those cases where incarcerated individuals have sought to prove “actual innocence” (see chapter 7). In these cases individuals with a claim of innocence may obtain access to appropriate DNA testing that might exclude them as the perpetrator of a crime for which they have been tried and convicted. Over 250 cases of “actual innocence” have been accepted by the courts and have resulted in exonerations. Several principles of justice are intertwined with these types of cases.
There are a number of reasons that the American judicial system has, to a large degree, adopted a principle of finality in regard to litigation. Once an individual has been afforded all the legal remedies available to him or her, including the possibility of entering new exculpatory evidence after conviction, an incompetent defense attorney, or procedural errors in the trial, the system begins the process of finalizing the decision, making it increasingly difficult to reopen the conviction. Without finality, it is argued, the courts would be overburdened with spurious postconviction claims. The system seeks to frontload all the opportunities for defending one’s innocence and for making appeals, leaving very few opportunities beyond the last appeals process. But forensic DNA has resulted in a reconsideration of judicial finality because of its exculpatory power.8 Where an individual’s DNA profile is not included in the profile of well-preserved DNA evidence known to have come from the perpetrator, it means that this individual did not leave behind his or her DNA and someone else did. Unlike the case of a so-called match where inclusion of the profile in the crime-scene DNA could be explained by contamination, mixtures, or other potential complications, a nonmatch of quality DNA samples is a definitive exclusion. Particularly where there is no other concrete evidence linking that individual to the crime, it is hard to imagine how a state can possibly allow a person to continue to serve time for a crime under this type of scenario. Nonetheless, as we saw in chapter 7, while state authorities have fully embraced the use of DNA to place individuals behind bars, some have been far more reluctant to open the door to post-conviction DNA testing.
The principle of “DNA exculpatory justice” may be stated as follows: if a claim of “actual innocence” can be definitively resolved at a reasonable cost by DNA testing, then it would be an injustice if the state refused to provide the defendant the preserved crime-scene DNA evidence for comparison with his or her DNA. Not all states provide the same opportunities for post-conviction testing. DNA exculpatory justice is also compromised when local police departments exercise different standards for preserving postconviction DNA evidence. Those who have been falsely convicted, where exculpatory DNA evidence is available, even after having served their sentence, cannot feel whole again until they have been afforded the opportunity to use DNA to prove their innocence. This raises the question whether the scales of justice can be balanced when the protection of DNA evidence varies across jurisdictions.
The concept of justice in the criminal justice system must include the opportunity to correct mistaken convictions when it is generally recognized that wrongful convictions do sometimes occur. No society can aspire to an ideal of justice if it does not take every reasonable precaution to prevent innocent people from having their liberties taken away by the state, or, when it has done so, it is recalcitrant to correcting its mistakes.
Toward a Vision of Justice
The vision of justice to which the “criminal justice system” aspires should be based on a proper balance between the protection of the civil liberties, presumed innocence, and procedural rights of persons and the needs of the state to apprehend, punish, and rehabilitate perpetrators of crime. Ideally this is achieved by a type of maximin principle where retributive justice (convicting perpetrators of crime) is maximized under the constraint of minimizing intrusions into the protections of individual privacy, autonomy, and the presumption of innocence.
On the basis of this general vision of justice, we offer the following set of axioms and commentaries on the responsible uses of forensic DNA in law enforcement. These axioms seek to balance the concept of justice for victims of crime with the ideals of justice for the presumed innocent and convicted felons who seek to prove “actual innocence” through postconviction DNA testing. They are also designed to bring the medical and forensic systems into greater concordance by adopting the principle that all people have an expectation of privacy of their genetic information.
Axiom 1. Genetic information collected in the law-enforcement context should be protected in a manner that is consistent with the protections afforded to medical information.
Forensic biological samples are analogous to medical records in that they contain highly intimate and personal information, including information pertaining to disease predisposition, genetic abnormalities, recessive genes, paternity, and immunological sensitivities. Therefore, the privacy of genetic information protected in medical records should carry over to other sources and uses of one’s genetic code. One should be guided by the sensitivity of the source information and not by how the information was acquired or the purpose for which it is intended to be used. As we discussed in chapter 14, while the DNA profiles (noncoding regions of DNA) contain only limited information about an individual, the source biological samples that are collected in order to profile the DNA are permanently retained by law enforcement.
There is near unanimity that, beyond the person’s caregivers, the privacy of an individual’s medical genetic information should be protected, and as a result, many states and the federal government have passed legislation to protect their residents from unauthorized access to and use of medical genetic information. However, quite the opposite is taking place in the criminal justice system, where the collection of people’s DNA without their consent has expanded. As long as agencies of criminal justice maintain databases that include the complete genome of individuals who are charged with, arrested for, and/or convicted of crimes, there will be a bifurcated system in which the same information available through DNA analysis will be protected under one set of public and private institutions while being unprotected under another.
Axiom 2. People have an expectation of privacy in the informational content of their DNA regardless of where it has been obtained or acquired (on their person, shed, within medical records).
A corollary to this axiom is that it is an invasion of one’s privacy when his or her DNA is analyzed outside the scene of a crime. Police should not have the right to analyze DNA for medical, paternity, ancestry, or behavioral information without a warrant. Covert involuntary DNA sampling by amateurs, private investigators, and police should be prohibited unless there is a court order.
Axiom 3. People have a prima facie but not fundamental right to withhold their identity.
In Hiibel v. Nevada the U.S. Supreme Court ruled that a person does not have a constitutional right to withhold his or her identity. On the other hand, police cannot stop a person without reasonable suspicion simply to acquire the individual’s identity.9 Thus, if we extrapolate from Hiibel v. Nevada, even if DNA were used exclusively for “identification purposes,” there are still limits on what police can do to obtain DNA identity. Law enforcement may have to meet a just-cause or reasonable-suspicion requirement to create a DNA profile.
It is important to note that DNA is not simply being collected “for identification purposes.” The identity of individuals arrested or convicted is already known or can be made known through means far simpler and more efficient than DNA testing. The purpose of collecting DNA from known individuals is not principally one of identification, but rather of investigation and inculpation.
Axiom 4. The taking of DNA constitutes a search. Therefore, in order for the police to forcibly collect DNA from an individual suspected of a crime, they must have a warrant supported by probable cause.
In United States v. Mitchell the U.S. District Court (Western District of Pennsylvania) addressed whether the government could collect a sample of the defendant’s DNA before trial and without a warrant. This case directly challenged the federal law enacted in 2006 that granted the U.S. attorney general the authority to collect DNA from individuals arrested or non-U.S. persons detained under federal authorities. In its ruling the court noted:
A DNA profile generates investigatory evidence that is primarily used by law enforcement officials for general law enforcement purposes. To allow such suspicionless searches, which are conducted in almost all instances with law enforcement involvement, to occur absent traditional warrant and probable cause requirements will intolerably diminish our protection from unreasonable intrusion afforded by the Search and Seizure Clause of the Fourth Amendment.10
Axiom 5. DNA data banks should be limited to DNA profiles from persons who are convicted of felonies.
The United States and other countries should follow the wisdom of the European Court of Human Rights in rejecting the blanket and indiscriminate collection of DNA from persons suspected but not convicted of crimes. Individuals detained or arrested are presumed innocent and should not have their DNA and accompanying profiles shared in a database.
The state has an obligation under its public safety mandate to maintain accurate records of convicted felons, for it is not unusual for such felons to commit additional crimes or to take on new identities to mask their criminal record. Nevertheless, convicted felons, whether or not they are incarcerated, do not lose all their privacy rights under the Fourth Amendment. For example, informed consent may still apply to a prisoner’s DNA when it is sought for research purposes. Beyond the storage of the DNA profile in the database for use in linking the offender to additional or future crimes, convicted felons should still retain privacy rights over the coding sequences of their genome without the state’s overriding interest being demonstrated.
In cases where the DNA from a suspect is collected by way of a warrant, and the charges against that suspect are dropped or the individual is not convicted, the individual’s DNA profile should be expunged automatically from the police record, and its biological source should be destroyed. Responsibility for expungement should rest with law enforcement; no petition or written request from the individual should be required.
Axiom 6. Written informed-consent procedures and proper protections against coercion should be in place for warrantless searches of nonsuspect DNA samples when police engage in voluntary DNA dragnets.
As noted in chapter 3, DNA dragnets have been conducted with varying degrees of police neglect of informed voluntary consent by suspicionless individuals who are asked to submit a DNA sample. In the very least, procedural guidelines are needed that establish a proper balance between individual privacy, informed consent, and law-enforcement goals.
DNA dragnets should be used by police only as a last resort and should be limited in scope to those who had access to the victim or who match a detailed description of the perpetrator. Those approached to provide DNA samples should be informed of their rights of refusal. Samples and profiles should be destroyed upon close of the investigation.
Axiom 7. Police seeking to acquire and analyze the DNA of family members of an individual identified through a partial match must obtain a warrant.
There are currently no consent procedures, warrants required, or national guidelines for familial searches. States, including New York and California, are beginning to introduce rules that allow law-enforcement authorities to conduct familial searches under their own standards.11 DNA sweeps carried out through familial searches inculpate suspicionless individuals. In some families this can include parents, children, and siblings. Therefore, by Axiom 4, police must obtain a warrant if they seek to acquire and analyze DNA of a family member of someone identified through a partial match. Being a family member of someone whose DNA has been partially matched with DNA left at a crime scene should not, by itself, constitute probable cause.
Axiom 8. Surreptitious taking, testing, or storing of DNA from suspects or their relatives is a violation of a person’s privacy and should be prohibited.
The current dominant framework that assumes that DNA collected from coffee cups, cigarette butts, and saliva samples is “abandoned” allows police to pick up DNA anywhere, from anyone, at any time, and is in direct conflict with the most fundamental notions of genetic privacy. As discussed in chapter 6, thus far no court has ruled against obtaining DNA from discarded objects through surreptitious means. As legal analyst Elizabeth Joh states, “The collection of abandoned DNA by police threatens the privacy rights of everyone. The law permits it, and the police seek it. Advances in molecular genetics will permit ever greater exploitation of that personal information once it is acquired.”12 Joh refers to sampling DNA on discarded objects as “covert involuntary DNA sampling.”13
Axiom 9. The analysis of crime-scene DNA should be limited to identity and to those externally perceptible traits whose DNA markers have been scientifically validated.
At a crime scene all materials, including DNA, that could help police determine the identity of the victim and perpetrators and/or the methods used in the criminal activity are open to forensic investigation without warrants. However, such investigation must be strictly limited to standard forensic DNA analysis of the 13 STRs (or equivalent in other countries) and nonsensitive, nonstigmatizing, externally perceptible traits, such as hair color and stature. Any attempts to mine crime-scene DNA to make predictions about the medical or behavioral characteristics of the alleged perpetrator should be prohibited.
Axiom 10. Offender or suspect biological samples should be destroyed after DNA profiling so that the encoded information cannot be accessed for information beyond the DNA profile.
The most significant privacy concerns with DNA collection relate to the stored biological samples. The only way to ensure that misuses of the samples do not occur is to destroy the biological source of DNA after a DNA profile is generated. The biological sample is not necessary to link the source individual to DNA left behind at a crime scene—all the information that is needed is contained in the DNA profile. Since the individuals are known, another sample can always be collected if needed. If for some reason additional coding sequences of a felon’s DNA are needed for an investigation, a warrant can be sought to obtain that information.
The development and implementation of policies for collecting DNA profiles in a national data bank has followed a path that some political scientists and policy experts call “disjointed incrementalism.” Each state sets its own guidelines and rules in the context of de minimis federal standards. Step-by-step expansions of the reaches of the database have served to mask the long-term downsides to a system that places inadequate emphasis on overarching principles of privacy and justice in the quest to solve crime. The pitfalls of piecemeal policymaking have been worsened by the fact that many of the decisions with regard to DNA collection and use by law enforcement have been made by default and have not been reviewed in the courts.
In this book we have tried to provide a holistic and coherent picture of forensic DNA data banks. Building on data and studies from the United States, Asia, Australia, and Europe, we have sought to illustrate both the assets and liabilities of the technology for its use in criminal justice. The principles we have outlined in this chapter arise out of our exploration of the impacts of DNA expansion on privacy and justice and our examination of questions of efficacy and fallibility. Much remains to be done to establish this powerful technological tool in a manner that conforms to our sense of fairness and justice and balances the values to society of solving felony crimes, freeing innocent and wrongly convicted individuals, and preserving our rights of privacy.