Race, Health Care and the Law 
Speaking Truth to Power!

DNA and Privacy

Checkout: Reclamationgallery.com

Vernellia R. Randall
Professor of Law and
Web Editor

 

Search this site
  powered by FreeFind
 

 
What's New
Awards and Recognitions
 

Chapters

Health Status
Organization and Financing
Access to Health Care
Quality of Health Care
Health Care Research

Bio-ethical Issues
Health and Human Rights
International Issues

The Health Care Challenge

Eliminating Disparities
 

Syllabi

AIDS
American Health Care Law
Bioterrorism 
Health Care Malpractice

Tobacco

Violence and Public Health
 

Surveys

 

Favorite Poetry

Invictus
The Bridge Poem
Still I Rise
No Struggle No Progress
 

Related Websites

Race and Racism
Gender and the Law
Legal Education
Personal Homepage

 

The Impact of DNA Databases on Privacy

Annotated Bibliography

 

Kristina Rooker

The University of Dayton School of Law

Spring 2000

 

Introduction

 

This annotated bibliography addresses the impact of the use, by law enforcement officials, of DNA databases on the privacy rights of prisoners. DNA profiles allow the examination of human biological material, contain "the past history and thus dictate the future of an individual's racial and genealogical makeup, and influence an individual's medical and psychological makeup." (1) Because every person, with the exception of identical twins, has a unique DNA profile the profiles can be used for identification purposes. This ability of DNA profiles to identify individuals allows such evidence to be used both as a means of convicting the guilty and as a means of exonerating the innocent. (2) DNA profiling has not always been very popular, but as the use of DNA profiling became more acceptable DNA databases began to develop. DNA databases store and maintain DNA profiles as well as the DNA evidence used to produce the profiles. (3) The fact that the biological evidence that is used to produce DNA profiles is kept and stored in the DNA databases is one of the reasons why critics of the databases argue that they may threaten individual's privacy rights.

The tissue from these DNA samples can not only be used to identify individuals, but it "can also be used to produce information in relation to health, paternity, and other personal issues." (4) Due to the ability of the DNA samples to produce information related to health and paternity third-parties such as insurers, employers, and governmental agencies are interested in the samples. This may lead to genetic discrimination and the limiting of access to health care, employment, and governmental services. (5) In response to these and other privacy concerns related to DNA profiling the FBI and others maintaining DNA databases contend that the databases do not contain any significant genetic information. (6) Even if it is true that the information contained in DNA profiles does not contain significant genetic information, there are still potential privacy threats due to the fact that the original DNA samples are generally kept within the databases as well. Further information could be derived from those samples in the future or new technologies could lead to new information being revealed from the profiles. It may be true that additional information would probably be needed before the DNA samples that are currently kept in DNA databases would be able to reveal any further personal information, but there is currently nothing stopping technicians from obtaining that additional information. (7) Those concerned about the privacy implications of DNA databases also point to various examples of the government violating privacy while collecting information.

Critics of DNA databases claim that "once a technological program like DNA identification gets established for a pariah group such as sex offenders, it is inevitable that there will be pressure to extend it to yet other groups and also to allow access to increasing numbers of individuals and institutions who claim" that they need the information. (8) These critics point to what has occurred since the implementation of the Social Security Act to support this argument. When the original Social Security Act was passed the use of social security numbers was very limited and people were assured that this information would be kept confidential. Now in "the name of efficiency and rationality, huge computer banks match our social security numbers to almost every phase of our life giving the government a permanent and complete warehouse of data on all our activities." (9) The thought of the highly personal information contained in DNA databases being as easily accessible as social security numbers are today is frightening and reason enough for the implementation of strict safeguards for DNA databases to follow. In addition to the attacks based on privacy issues there are other constitutionally based attacks on the use of DNA databases.

Prisoners who have been subjected to mandatory statutes that condition their release from prison on them providing a DNA sample have attacked the statutes on Fourth Amendment grounds. Relying on the Fourth Amendment prisoners argue that the mandatory blood testing authorized by these statutes constitutes an unreasonable search and seizure. (10)0 In response to such attacks both federal and state courts have found that the mandatory blood collection constitutes a search, but that the searches are "constitutional because the blood testing is minimally intrusive, and the state's interest in establishing offenders' identities is great." (11)1 In making this determination courts generally impose a balancing test in order to weigh the state's interest against the intrusion that will occur as a result of the testing. (12)

Courts also uphold these statutes against Fourth Amendment attacks either because they find that the state's administrative needs compel a warrantless search or because they find that prisoners have diminished privacy rights. Generally all searches require a warrant, but there are exceptions. One such exception revolves around a special needs analysis. This exception permits warrantless searches where the court finds there to a "special need for the search independent of a law enforcement purpose in determining reasonableness." (13) This approach looks at the increased efficiency to prosecutions and the deterrence of felons as viable administrative purposes. The diminished privacy rights approach, which has been adopted by a majority of courts, argues that prisoners have diminished rights and thus allows blood collection for DNA analyses purposes. (14) Because prisoners lose their right to be free from routine searches they also lose most of their Fourth Amendment protections. Courts have also found that prisoners do not have a privacy interest in DNA information. (15) In addition to these Fourth Amendment attacks statutes authorizing mandatory DNA sampling have also been attacked on various other constitutional grounds.

Prisoners who have attacked the based on the Fifth Amendment have had no more luck than those attacking on Fourth Amendment grounds. Courts have said that the Fifth Amendment protects only evidence of a testimonial nature and DNA evidence is not of a testimonial nature therefore the Fifth Amendment provides no protection here. (16)6 Similarly, First Amendment attacks against the statutes have been dismissed. Prisoners have argued that these statutes violate the Free Exercise Clause of the First Amendment because submitting to such testing would require some prisoners to deny their faith. In response to this type of argument courts have stated that just because a religion-neutral statute incidentally affects religious practices does not mean that statute is in violation of the Free Exercise Clause. (17)7 A final constitutional attack that prisoners have raised against mandatory DNA sampling involves the Ex Post Facto Clause. Prisoners who were convicted prior to the effective dates of these statutes have argued that application of the statutes to them would violate the Ex Post Facto Clause. In dismissing such claims courts look to the legitimate purpose of the statutes and the clear legislative intent that the statutes apply retroactively. (18)8 In addition to these and various other attacks on the use of DNA databases there is a grave danger that they will have a disproportionate impact on African-Americans.

Due to the disproportionate numbers of African-Americans currently in prisons it is inevitable that any mandate focused on prison inmates will have an unequal impact on African-Americans. Mandatory DNA sampling of convicted sex and/or violent offenders has the potential of continuing the devastating impact that the criminal justice system has on African-Americans. It has been shown that "at each step of the criminal justice system, from arrest through incarceration and execution, black males are penalized without conscience, remorse, or constitutional protection." (19)9 The answer to this potentially devastating problem is not to discontinue DNA sampling, but rather to address the problem at its on-set. The disproportionate numbers of African-Americans in prisons can only be effectively addressed by looking at the treatment of African-Americans in police departments and the court systems. In order to ensure that DNA sampling and the use of DNA databases are effective in their purpose of solving crimes the prison population needs to be representative of those actually committing crimes. Ensuring that this occurs is one of the many safeguards that need to occur before the potential benefits of DNA databases can be realized.

Even though statutes mandating DNA sampling for sex and/or violent offenders have been upheld against various constitutional attacks it is crucial that national safeguards are put in place in order to ensure that the privacy rights of prisoners as well as other DNA donors are protected. There have been steps in the right direction with statutes such as the DNA Identification Act, but more still needs to be done. Both the use of and access to DNA databases need to be strictly limited. DNA databases should only be used for law enforcement purposes and once DNA profiles are created the original DNA samples should be destroyed. Regulations also need to be put in place that address the procedures for the taking of DNA samples and procedure for the maintenance of DNA databases. These safeguards need to be enforced through regular testing of DNA databases and the implementation of strict penalties for violations of any of the safeguards. There can be great benefits to the use of DNA databases, but these benefits can only be realized if the privacy rights of those required to provide DNA samples are protected. This protection will only occur as a result of national safeguards such as those mentioned above that databases as well as those using them are required to follow.

 

The following articles are included in this bibliography:

 

Acid Test: DNA Databases Help Nail Slippery Criminals, but Their Potential Uses Make Privacy Advocates Nervous When it Comes to Arrestees and Ordinary Citizens

 

Boling v. Romer

 

Criminal DNA Data Banks: Revolution For Law Enforcement or Threat to Individual Privacy?

 

The Devastating Impact of the Justice System on the Status of African-American Males: An Overview Perspective

 

DNA Data Banking: The Dangerous Erosion of Privacy

 

DNA Databases: Background

 

DNA Databases: The Issues

 

DNA on Trial: Genetic Identification and Criminal Justice, DNA Data Banking and the Public Interest

 

Genetic Diaries: An Analysis of Privacy Protection in DNA Data Banks

 

Shaffer v. Saffle

 

42 U.S.C.A. 14131

 

42 U.S.C.A. 14132

 

Annotations

 

Michael Higgins, Acid Test: DNA Databases Help Nail Slippery Criminals, but Their

Potential Uses Make Privacy Advocates Nervous When it Comes to Arrestees and Ordinary Citizens, American Bar Association Journal, October 1999, at 64.

 

DNA evidence is becoming a very powerful tool for law enforcement officers and is enabling them to catch even those criminals who do not leave fingerprints at crime scenes. Cases that law enforcement officials have long been unable to solve are now being solved and DNA profiles are continuously being collected. (20)0 But there is a problem; DNA reveals an individual's predisposition to illnesses and other personal information that scares privacy advocates. Theses advocates fear what the collection of this information will lead to. (21)1 It looks like DNA profiles are being collected at increasing rates and government access to these files is also growing. DNA testing and the subsequent compilation of DNA profiles began with sex offenders and violent criminals, but states now want to expand it to many other crimes. Those in support of widespread DNA testing argue that limiting testing to certain criminals limits the data bases to those in prison who have been convicted of certain crimes. Although the supporters say that DNA testing is limited to DNA that does not reveal specific characteristics, the critics are still fearful of what may later be able to be found in that DNA. (22)2 In addition to the arguments concerning whether DNA testing should take place at all, there is wide disagreement over whether, if samples are taken, they should be kept or destroyed. Although many states have statutes which penalize the misuse of DNA samples, there are no guarantees as to what information will or will not be able to be gained in the future from DNA samples that are currently in data banks.

 

Because there is currently a large backlog of DNA samples that are waiting to be tested and of convicts who are waiting for samples to be taken, widespread testing of arrestees does not seem likely. In addition to the backlog problems, there is the argument from the ACLU that DNA sampling constitutes a search and thus cannot be done without a warrant and probable cause. (23)3 But even if this argument stands, there are exceptions to the warrant requirement. A warrant is not required for identification purposes and it can be argued that DNA sampling is done for identification purposes. Another argument against the testing of arrestees is that because arrests may be skewed along racial and/or ethnic grounds collection of DNA from aresttees would be similarly skewed. (24)4 It is predicted that despite these and various other drawbacks DNA profiling is too useful to not continue.

 

The author presented both sides of this very controversial issue and backed each up equally well. It is clear that there needs to be a balancing of interests and that there needs to be limitations and guidelines set because DNA profiling is going to continue and may even expand. Those against DNA profiling will not see it stopped and those in support of the profiling are not likely to see it spread to society at large, so compromise needs to occur.

 

>Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996)>

 

In this appeal from a district court order granting summary judgment against him, Jason Aaron Boling, challenged the constitutionality of a Colorado statute that required those inmates who were convicted of an offense involving sexual assault to provide the state with DNA samples before they could be released on parole. (25)5 These samples were to consist of both blood and saliva. The Colorado bureau of investigation was to file, maintain, and make available to law enforcement agencies the results of the DNA samples. (26)6 Boling argued that the statute violated the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments, but his principal argument concerned the Fourth Amendment. This was not the first time the Fourth Amendment had been used to attack statutes such as the one at issue here. Both the Ninth and Fourth Circuits determined that the Fourth Amendment was implicated, but that it was not violated. Although those courts found the collection of blood and/or saliva to be a search and seizure they also found that a limited search conducted for the purpose of obtaining and recording the identity of prisoners did not require probable cause. States have an interest in the identification of arresstees in order to solve current crimes as well as both past and future crimes. The courts determined that this interest outweighed any Fourth Amendment intrusion that may occur. (27)7

 

The Boling court was persuaded by the decisions of the Ninth and Forth Circuits and concluded that the collection of the DNA samples required by the Colorado statute was a reasonable search and seizure and that the Fourth Amendment was therefore not violated. In making this determination the court compared these samples to the use of fingerprints, which have long been seen as permissible, and said that the DNA would be used in a manner very similar to how fingerprints are used. (28)8 The court, likewise, found Boling's other arguments to be unpersuasive. His Fifth Amendment argument failed because DNA samples are not testimonial and the Fifth Amendment covers only testimony. The attacks based on the Due Process Clause were not successful because no hearing is required prior to the taking of DNA samples and because no liberty interest was implicated. Finally, because there was a rational relationship between Colorado's decision to classify the inmates as sex offenders and its objective in implementing the statute there was not a viable equal protection claim. (29)9

 

The court's arguments in support of statutes requiring certain inmates to provide DNA samples are both valid and persuasive, but the court seems to ignore the dangers of this type of testing and the invasion of privacy that occurs. The argument that once someone is convicted of a crime and incarcerated they no longer have privacy interests that will be protected could lead down a very dangerous path. Not everyone who is in prison is guilty and even if they are guilty they do no leave their constitutional rights and protections at the prison door. Although it is important that law enforcement officials have DNA profiles in order to solve crimes and convict criminals, it is also important that the civil liberties of inmates be protected. There needs to be a balance.

 

Yale H. Yee, Criminal DNA Data Banks: Revolution For Law Enforcement or Threat to Individual Privacy?, 22 American Journal of Criminal Law 461 (Winter 1995).

 

The makeup and function of cells in the body are determined by genes, which are segments of DNA. (30)0 Law enforcement officers are interested in DNA as an identification tool because every person's DNA is unique, DNA exists in all cells, DNA is consistent throughout ones life, and DNA can be preserved. Everyone's DNA produces a unique patterns that is referred to a DNA fingerprint. (31)1 These DNA fingerprints can be compared in order to determine whether a DNA sample from a suspect matches DNA obtained at the scene of a crime. In order for scientists to conclude that a match exists the patterns must match at every locus. The use of DNA fingerprints as evidence was first allowed in a 1988 Florida case involving armed burglary, aggravated battery, and sexual battery. The court used a relevancy approach in ruling that DNA evidence was admissible. The court said that the evidence would be helpful to the jury, was reliable, and was based on proven scientific principles. (32)2 At the federal level, DNA evidence was first admitted in 1990. The United States District Court for the Northern District of Ohio found that DNA evidence was admissible as long as the government establishes that the scientific principles are generally acceptable. A five factor balancing test, the Frye test, was later established which required trial courts to balance the reliability of the evidence against any potential negative impacts that such evidence would have on the jury in determining whether DNA evidence would be admitted. (33)3 DNA evidence has not been universally accepted though. Some courts do not allow DNA evidence unless strict compliance with scientifically accepted procedures can be shown. Those courts not allowing DNA evidence seem to focus on both the quality control of the testing and the accuracy of the process used to calculate the statistical probability of a match.

 

The Committee on DNA Technology in Forensic Science has recognized the importance of standardized practices and uniformly accepted methods for quality assurance. (34)4 Guidelines have been developed to establish procedures to be followed during the DNA typing process, provide adequate documentation and provide adequate documentation to ensure DNA typing occurs within the guidelines. The DNA Identification Act, in a step toward national standardization, provides for the establishment of a National DNA Advisory Board that will develop standards for quality assurance. (35)5 Despite these efforts critics argue that DNA evidence should still be inadmissible due to the invalidity of the statistical probabilities. It is argued the manner by which statistical probabilities are calculated ignores societal sub-groups that may exist within the designated populations.

 

In 1995 about twenty-four states had statutes that either permitted or required DNA samples to be taken from certain convicted offenders. The purpose of such statutes is to assist law enforcement agencies in identifying those that are subject to criminal investigations. These statutes generally apply to sex offenders, but some extend to those convicted of any felony or violent offense. (36)6 Issues concerning the constitutionality requiring DNA sampling are raised in connection to these types of statutes. In answering Fourth Amendment attacks to a Virginia statute requiring all those convicted of sex offenses and felonies to give a blood sample the Fourth Circuit concluded that such measures did constitute a search, but that due to the fact that arrested individuals have a lessened right of privacy and due to the legitimate state interest in identifying suspects the taking of the blood samples was reasonable. (37)7 In addition to the statutes requiring DNA testing the FBI wants to establish a national data bank for DNA fingerprints. Such efforts are authorized by the DNA Identification Act. The creation of DNA data banks raises privacy issues concerning the availability of this information to third parties and the extent of the genetic information that would be contained in the database. In evaluating the privacy implications it is necessary to weigh the benefits against the costs of data banks. DNA data can be used to identify suspects, resolve paternity questions, and identify remains. At the same time, however DNA data poses serious threats to individual privacy. (38)8 There are questions as to who will maintain control over the DNA information and who will be permitted to access it. There are safeguards that can be, and in some cases are, put in place to address these issues. Some such safeguards are that both access to and the dissemination of DNA information can be strictly limited to law enforcement officers and for law enforcement purposes, prevention and sanctioning of unauthorized disclosure, limitations of the scope of DNA testing, and procedural regulations addressing the testing and storage processes. (39)9

 

The author does an excellent job of presenting all of the concerns surrounding the issue of DNA data banks. The step-by-step manner in which the issue is describes provides a great understanding of the process, the legal status, and possible safeguards to ensure reliability of the testing and protection of privacy interests. Although there are serious privacy threats and questions surrounding both the reliability and validity of DNA testing there are safeguards which can be put in place that will adequately address those issues while allowing the benefits of DNA testing and DNA data banks to occur.

Floyd D. Weatherspoon, The Devastating Impact of the Justice System on the Status of African-American Males: An Overview Perspective, 23 Capital University Law Review 23 (1994).

 

African-American males are adversely affected by the American justice system. This adverse impact is seen at every stage of the system and leads to adverse impacts on the status of African-American males throughout all sectors of society. (40)0 Despite all of the statistical data that supports this adverse impact, there has not been much societal or legal response to this devastating problem. As the numbers are heard more they seem to have less of an impact. Much of this stems from both the stereotypical biases that exist against African-American males and the selective enforcement of judicial policies. Both white Americans and foreigners tend to believe that African-American males are aggressive, violent, lazy, sexually promiscuous, and less intelligent than other groups. (41)1 Additionally, policies such as the "war on drugs" have resulted in a disproportionate number of African-American males being arrested and eventually places in jails. There is a growing concern that African-American communities, generally, and African-American males, specifically, are the targets of drug sweeps. Being an African-American male is sometimes seen as a sufficient basis for interrogation. Although there are constitutional guarantees to the right of all citizens to travel freely, this right is often limited for African-American males due to the fact that they are often stopped, interrogated, and detained. (42)2

 

The Drug Enforcement Agency has developed drug courier profiles, which appear to be race neutral, but in fact disproportionately impact African-Americans. These profiles consist of a list of characteristics which claim to be indicative of someone carrying drugs, but they are carried out in such a way that results in high number of African-American males being detained and suspected of wrongdoing due to their race. These procedures and many others having the some effect have lead to a startling number of African-Americans being under the criminal justice system. (43)3 It is clear that race is a factor in the administration of justice. Not only are there a disproportionate number of African-American males who are incarcerated, they consistently receive stiffer sentences than do other groups for the same offenses. Although there have been attempts to eliminate such disparities, such as the Sentencing Reform Act, they do seem to have been very successful. Sentencing guidelines do seem to have impacted who does the discriminating. Because judges are now limited to specific sentences, prosecutors seem to be using their discretion in the plea bargaining and charging processes in a manner which perpetuates these disparate impacts on African-American males that exist throughout the justice system. (44)4 The adverse impact on African-American males that is seen in the criminal justice system also exists in the areas of employment, and health care.

 

It is startling that such disparities exist and yet there is no public outcry. The author does not just provide the statistics, but explains the impact that they have. He also points out that some of the disproportionate impact could be due to the activities that African-American males participate in and the areas where they live and/or socialize. This is not the source of the problem though. The source of the problem is the institution of the criminal justice system and that is where changes need to occur.

 

E. Donald Shapiro & Michelle L. Weinberg, DNA Data Banking: The Dangerous Erosion of Privacy, 38 Cleveland State Law Review 455 (1990).

 

DNA profiling provides a genetic code that contains information concerning an individual's race, genealogical makeup, medical status, and psychological makeup. All DNA has unique variations and can therefore be used in identifying remains, connecting suspects to crimes, and clearing those convicted of crimes they did not commit. (45)5 As DNA profiling began to be used more frequently in the criminal arena it also came under attack. The use of DNA profiling came under attack in the courts and various courts rejected conclusions that were drawn by DNA evidence. However, after lengthy and extensive review of both the scientific and legal validity of DNA profiling other courts have found DNA evidence to be admissible. (46)6 Now, DNA evidence is used in more and more cases, the number of labs offering tests for DNA profiling is on the increase, and DNA data banks are beginning to be compiled. With this increasing use of DNA comes privacy concerns. Technological developments have broadened the uses of DNA and the ability of DNA to provide indications as to an individual's medical and psychological pre-dispositions is increasing at rapid rates. (47)7 Because DNA has the ability to invade an individual's privacy, society has the responsibility of ensuring that the information encoded in DNA remains private.

 

Statutes in many states authorize the formation of DNA data banks. These statutes permit DNA profiling of convicted sex offenders and in some cases convicted felons. DNA data banks will allow law enforcement agencies to match DNA evidence collected at crime scenes to DNA profiles within the databases. (48)8 For now DNA profiling is limited to sex offenders and some convicted felons, but once that becomes widespread it is likely that the profiling will extend to other groups. The large-scale compilation of personal information by the government has a tendency to get out of control. This can be seen by the large computer banks that match social security numbers with various aspects of citizen's lives, which occurred in the face of federal legislation ensuring that this information would be protected. (49)9 Another draw back to wide spread use of DNA data banks by law enforcement agencies is that once society becomes familiar with and begins to accept the use of DNA profiling the testing will spread to non-criminals. Computerized data banks containing DNA profiles will give the government an unprecedented power over individuals in that it will have information concerning the genetic make-up of citizens which could be used to deny employment, insurance, or even one's right to have children. (50)0 Before the use of DNA profiling becomes anymore widespread society needs to determine how it is going to deal with these potential problems and legislation needs to be enacted which sets guidelines for the use of this type of information.

 

The authors do a good job of addressing the potential dangers of widespread DNA profiling, but their use of the slippery slope argument that once DNA profiling is permitted on criminals it will lead to it being permitted throughout society does not seem appropriate. DNA profiling is permitted on sex offenders and some convicted felons due to the likelihood that these offenders have either committed previous crimes or will commit more crimes in the future and having their DNA on file will allow law enforcement agencies to trace them. There is no such argument to support DNA profiling of society at large. Although it is important to set guidelines for the use of DNA information, it is not likely that DNA information will ever be used as social security numbers are now used.

Kenneth Jost, DNA Databases: Background, The Congressional Quarterly Researcher (May 28, 1999).

 

DNA began being used as a tool for identification after a German biochemist by the name of Friedrich Miescher discovered the substance. Decades later an American biochemist named James D. Watson described the molecular structure of DNA. (51)1 Genetic research scientists in the United States and England later developed DNA typing. These scientists discovered that when DNA was cut there were identifiable patterns and that these patterns could be used for identification purposes because they showed the great variability between different people. (52)2 Soon after this discovery this technique moved into an English courtroom where DNA typing was used in order to clear an innocent man. This case was illustrative of the dual powers of DNA typing. DNA evidence can be used to both convict guilty offenders and exonerate the innocent. Despite these great possibilities for DNA typing, defense lawyers were quick to attack the use of DNA evidence in court. Despite these attacks on the reliability of DNA evidence it soon became clear that DNA evidence would generally be admitted in court. The increase in the number of DNA profiles that are available has greatly diminished the importance of the arguments that DNA matches lack reliability because they do not address race and ethnicity. (53)3

 

By the mid 1990's, DNA evidence was viewed as a well-established forensic technique. (54)4 DNA evidence is now use by police and prosecutors in investigations and trials, as well as by defense attorneys to exonerate wrongful convictions. New technologies also enhanced the application of DNA evidence. An American biochemist named Kary Mullins discovered a solution to the problem of having too little DNA to work with. A chain-reaction was produced which replicated the original DNA. (55)5 The creation of DNA databases quickly followed the acceptance and increased reliance on DNA evidence. In 1994 Congress supported the creation of DNA databases through the enactment of the DNA Identification Act which provided states with grants and established guidelines for a national database. Despite the obvious congressional support for DNA databases court cases attacking them followed soon after their creation. Courts have found the collection of DNA samples to pose only a minimal intrusion upon convicted felons. It seems that the only thing in the way of the expansion of DNA databases are practical constraints such as money, time, and expertise. (56)6

 

The author provides a good background to DNA testing and DNA databases, but is too quick to conclude that the only things in the way of the expansion of DNA databases are practicalities. Although there is congressional support and many court victories that seem to side with an increased reliance on DNA evidence there are still many constitutional attacks to its use.

 

Kenneth Jost, DNA Databases: The Issues, The Congressional Quarterly Researcher (May 28, 1999).

 

DNA profiling was at first a controversial forensic novelty, but is now a widely accepted tool by which criminals can be identified and wrongly convicted defendants can be exonerated. (57)7 Many see DNA profiling as one of the most significant investigative advances in the criminal justice arena. With the advent of DNA profiling investigators may now be more likely to recover usable DNA than fingerprints from crime scenes. (58)8 As law enforcement agencies move toward the use of a nationwide computer database of DNA profiles some civil liberties and privacy advocates are voicing concerns. Despite critics fears that DNA databases will be abused, law enforcement officials believe that police and prosecutors will be able to use the national database as a means of linking suspects and offenders to crimes that they will otherwise not be able to solve. Critics rely on the fact that the same blood samples that law enforcement officials will be using for identification purposes can also be used to ascertain a complete biological dissection of the person. (59)9

 

The expansion of both DNA testing and DNA databases is occurring at rapid speeds. Databases that were once limited to sex offenders now include offenders convicted of lesser crimes. Additionally, there are proposals in many jurisdictions that would expand DNA testing to all arrestees. The FBI has now established its own database which is intended to operate as a national database, much like the one the FBI currently maintains for fingerprints. As DNA testing becomes more widespread many issues are being debated. (60)0 First, there is a question as to whether the use of DNA databases should be expanded. In support of expansion, it is argued that national DNA databases will enable law enforcement officials to convict criminals of all the crimes that he/she has committed rather than just of the one currently at issue. This will save police resources, lead to longer sentences, and lessen the cost of trials because of the higher quality of the evidence. (61)1 Although it is difficult for critics to argue with the benefits that DNA databases provide to law enforcement, critics argue that there are constitutional issues intermingled with the testing of individuals based on their status as a convicted offender. For the most part, though, these and other challenges to the creation of DNA databases have failed in both state and federal courts. There are also pragmatic arguments against the expansion of DNA databases. Critics point to the fact that if a suspect is acquitted then he/she may have a right to have their DNA sample destroyed and argue that the collection of DNA samples from arrestees is one more step down a slippery slope toward universal DNA testing. Second, there is a question as to whether DNA databases pose a danger to individual rights. Those that argue that DNA databases do threaten an individuals right argue that there is a grave danger of genetic discrimination inherent to DNA databases due to the increasing number of samples being collected and the interconnectedness of government computer systems. (62)2 In response law enforcement officials argue that DNA databases are strictly safeguarded and that the databases do not contain any sensitive information.

 

The author presents the issues surrounding the use of DNA databases in a very clear and concise manner. Not only are the issues identified, but the author also presents both sides of the issues. The authors focus on two key questions prevents the reader from being overwhelmed in this very complex and multifaceted issue.

 

Nachama L. Wilker, Steven Stawski, Richard Lewontin, & Paul R. Billings, DNA on Trial: Genetic Identification and Criminal Justice, DNA Data Banking and the Public Interest, (Paul R. Billings ed.) 1992.

 

The most common use of DNA profiling is in the criminal context. In 1992 both the Supreme Judicial Court of Massachusetts and the California Court of Appeals found that DNA identification results were not admissible because of technical and theoretical concerns that surrounded the tests. (63)3 DNA identification tests compare tissue samples of suspects or victims to tissue samples recovered from crime scenes. (64)4 The results are then testified to in court. The testimony addresses whether the DNA collected at the crime scene "matches" the DNA of the suspect or victim. In determining whether such a "match" exists it is necessary to compare the DNA collected to that of reference population. This comparison leads to one of the main concerns with the DNA identification tests. The problem is that there are no guidelines as to how the reference populations should be determined. (65)5 Despite all of the problems surrounding their validity and reliability the tests continue to be used by various organizations including the FBI, insurance companies, and state governments in order to compile genetic data banks.

 

There are two main types of data banks. The first type, identification banks, are designed to be used to identify individuals and contain records of the physical characteristics. Although identification banks are only intended to be used for the identification of missing people or criminals the fact that some of these data banks contain biological samples may lead to the misuse of this highly personal genetic information. (66)6 The second type of data banks, information banks, contain more detailed personal information such as medical reports, police reports, credit reports, biological samples, amniocentesis samples, and pathological specimens which may be used by hospitals, employers, insurance companies, or employers. (67)7 The information contained in both types of data banks is not only used to identify individuals, but may also result in the compilation of details concerning the paternity and health of individuals. Although DNA information can be used to track down criminals and find missing persons, it also raises serious civil liberties concerns in that it may lead to genetic discrimination and social stratification. (68)8 In order to curb the problems connected with DNA testing and DNA data banks specific guidelines need to be laid out concerning how DNA should be collected, stored, and used.

 

Much can be said about the importance of DNA testing and the compilation of genetic information, but the authors makes it clear that there are also many negative implications that need to be addressed. The public is often told of the wrongly convicted individuals who have been freed by DNA evidence and of the medical strives that have been made as a result of genetic information, but the public is not exposed to the effect that this same information has on their civil liberties. The authors argue that serious changes need to occur in the way that DNA information is collected, stored, and used before DNA identification tests and DNA data banks become more widely used. This is a very compelling argument and the possible misuses of DNA information are very disturbing, but at the same time the authors cannot and should not overlook the importance of such information.

 

Michael J. Markett, Genetic Diaries: An Analysis of Privacy Protection in DNA Data Banks, 30 Suffolk University Law Review 185 (1996).

 

Due to the many recent breakthroughs in genetic technologies genetic researchers have been able to create many new applications for DNA, including the ability of law enforcement officials to use DNA fingerprinting to identify criminals and victims. DNA data banks are being created to store DNA samples such as those obtained by law enforcement officials, but due to a lack of national standards a significant privacy threat to DNA donors has also been created. (69)9 Federal and state legislatures as well as courts have the burden of defining the legal character of DNA and determining what, if any, property rights exist in DNA information. (70)0 As of 1996 thirty-one states had legislation in place authorizing the formation of DNA data banks. This legislation came about as a result of the growing acceptance of DNA evidence as a means of identification. These data banks store both the biological samples and the results of the DNA identification testing that is conducted on the samples. In support of the statutes authorizing the mandate on violent and/or sex offenders to provide blood samples prior to release from prison states argue that such offenders have a greater tendency of leaving biological evidence at he scene of their crimes and that these offenders have higher recidivism rates. (71)1 Courts have upheld these statutes in the face of arguments that statutes applying to all felons are overly inclusive, mandatory DNA testing punishes ex post facto, DNA collection procedures violate due process rights, DNA collection procedures constitute cruel and unusual punishment, and that DNA data banks violate equal protection rights. (72)2

 

In dismissing the Fourth Amendment attacks courts rely on various Supreme Court and lower court decision upholding warrantless searches. These courts have found that the general warrant requirement can be waived when searches are performed in haste or under an emergency, when searches are consented to, and in some routine searches. (73)3 Despite these decisions courts have determined that DNA collection statutes implicate the Fourth Amendment. The collection of DNA does constitute a search. Even though DNA collection is considered a search it is not necessarily an impermissible search. In support of this conclusion courts generally adopt one of the following approaches: the search only constitutes a minimal intrusion, states have administrative needs which compel a warrantless search, and prisoners have been found to have diminished right to privacy. (74)4 Although DNA testing is constitutional there are still privacy concerns that have to be addressed. Because of the ability of DNA data to reveal information such as an individuals predispostion to disease DNA samples have the potential of being valuable to many parties. But, the actual information that is stored in the databases may not prove to be that helpful for things like gene mapping. In order to address these privacy concerned it has been argued that uniform privacy standards as well as national protocols for both DNA testing and its storage need to be adopted. It is further argued that donors should have the right to access and destroy their genetic material. (75)5 These rights are connected to the recognition of property rights in human tissue, which as of yet has no clear legal standing.

 

Although the author does a good job of presenting the various issues connected with DNA data bases he does not provide a lot of support for his arguments. He makes broad statements without backing them up. The arguments are good, but they would be more persuasive with more support. DNA data banks have the potential of posing grave threats to personal privacy and if it is going to be argued that no such threat will occur adequate support needs to be provided.

 

Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998)

 

This appeal is a result of a dismissal by the United States District Court for the Eastern District of Oklahoma of an action by Douglas Shaffer, a state prisoner, which was brought under 42 U.S.C. 1983. (76)6 Shaffer asserted that the Oklahoma statute requiring him to provide a DNA sample prior to being released from prison violated his constitutional rights under the First, Fourth, and Fifth Amendments, and under the Ex Post Facto Clause. The statute established a DNA Offender Database that contained DNA samples of those individuals convicted of specified offenses. These samples were to be collected and maintained in order to identify and prosecute perpetrators of crimes in which biological evidence was recovered. (77)7 State statutes similar to the Oklahoma statute at issue here have been upheld against both Fourth and Fifth Amendment challenges. In rejecting the challenges that were based on the Fourth Amendment the courts concluded that although obtaining DNA samples implicates the Fourth Amendment, such implication is reasonable due to the diminished privacy rights of prison inmates, the minimal intrusion which would be involved in the DNA sampling, and the legitimate interest that the government has in using DNA samples in order to investigate and prosecute crimes. (78)8 Challenges to similar statutes under the Fifth Amendment were rejected because the courts found that DNA samples were not testimonial in nature and the Fifth Amendment was meant to cover testimonial evidence.

 

As to the First Amendment attack, Shaffer contended that the application of the statute to him violated his rights under the Free Exercise Clause because giving a DNA sample would require Shaffer to deny his faith. In order for the state to outweigh these religious rights, Shaffer argued that the state would have to establish a substantial interest in the implementation of the statute. Because the Supreme Court has ruled that laws which are religion-neutral and generally applicable do not violate the Free Exercise Clause just because religious practices may be incidentally affected Shaffer's First Amendment attack cannot stand. (79)9 Shaffer's final argument involved the Ex Post Fact Clause. He argued that application of the statute to him violated the Ex Post Facto Cause because the law did not become effective until after he was convicted. In response to this argument the court stated that other circuits have upheld statutes similar to the statute at issue here against similar challenges because such statutes have a legitimate purpose and thus do not violate the Ex Post Facto Clause. (80)0 The court also said that there was clear legislative intent for this statute to have retroactive application.

 

The court provides substantial support for it's position that statutes requiring certain inmates to provide DNA samples prior to being released prison do not violate the constitution. The court uses both previous decisions and legislative history to back its decision up. Other circuits have ruled on similar attacks to such statutes and the court relies on those decisions in determining how it should rule here. Additionally, the court looks at the legislative history of the statute and determines that there was clear intent for the statute to apply retroactively. The combination of common-law decisions and legislative history provide an adequate and persuasive basis for the court's decision.

 

42 U.S.C.A. 14131 (West, WESTLAW through P.L. 106-73)

 

Section 14131 of the DNA Identification Act provides quality assurance and proficiency test standards for DNA databases. The Director of the Federal Bureau of Investigations is to appoint an advisory board who is to come up with quality assurance methods. The board is to include scientists from State, local, and private forensic labs, molecular and population geneticists, and a representative from the National Institute of Standards and Technology. (81)1 The board's recommendations of quality assurance methods should include some type of proficiency testing for forensic labs and forensic analysts who conduct DNA analysis. After hearing the boards recommendations, the Director of the Federal Bureau of Investigation is instructed to issue and revise when necessary standards for quality assurance. (82)2

 

These standards are to specify specific criteria by which quality can be ensured and proficiency tests can be applied to all DNA analyses used by forensic labs. (83)3 It is crucial that the standards provide a clear system of grading the testing performance of the labs in order to determine if the labs are performing in an acceptable manner. Within one year of the enactment of this statute a blind external proficiency testing program needs to be available to both public and private labs that perform DNA analyses. If it is concluded that a blind proficiency testing program is not feasible then such a declaration with supporting evidence needs to be made to Committees on the Judiciary of the House and Senate by the Director of the National Institute of Justice.

 

This statute is a big step in the right direction as to the needed safeguards that need to be put in place in order to ensure that DNA databases are correctly maintained and that DNA evidence is correctly obtained. Though it would be much more effective if it were implemented in a much more timely manner.

 

42 U.S.C.A. 14132 (West, WESTLAW through P.L. 106-73)

 

Section 14132 of the DNA Identification Act provides for an index that would assist in the exchange of DNA identification information. The statute permits the Director of the Federal Bureau of Investigation to establish an index of DNA identification records of those individuals convicted of crimes, analysis of any DNA samples that are recovered from crime scenes, and analysis of any DNA samples recovered from unidentified human remains. (84)4 The information contained in this index is to be limited to information on DNA identification records that are performed in relation to criminal justice, in accordance with publicly available standards, and not exceeding guidelines for quality assurance. (85)5 The index may only contain results that come from labs which regularly undergo proficiency testing and are maintained by Federal, State, or local criminal justice agencies.

 

Disclosure of any DNA information is strictly limited. Disclosure may only occur to criminal justice agencies for law enforcement purposes, in judicial proceedings, for criminal defense purposes, or for population statistics purposes if personally identifiable information is removed. (86)6 The statue also provides that failure to follow any of the above stated guidelines will result in cancellation of access to the index.

 

This statue sets clear guidelines for the maintenance of DNA databases. The guidelines are clearly laid out, but there is no real indication as to how they will be enforced. Although the statue does provide that failure to comply will result in cancellation of access to index there is no indication of how the result would be reached. In order to ensure these guidelines are followed there should be a clearer indication as to how they will be enforced.

 

 

 

 

1. E. Donald Shapiro and Michelle L. Weinberg, DNA Data Banking: The Dangerous Erosion of Privacy, 38 Cleveland State Law Review 455 (1990) at 456.

2.

2.2 Kenneth Jost, DNA Databases: The Issues, Congressional Quarterly Researcher (May 28, 1999) at 451.

3.

3.3 Id.

4.

4.4 Nachama L. Wilker, Steven Stawski, Richard Lewontin, & Paul R. Billings, DNA on Trial: Genetic Identification and Criminal Justice, DNA Data Banking and the Public Interest, (Paul R. Billings ed.) 1992 at 146.

5.

5.5 Id.

6.

6.6 Yale H. Yee, Criminal DNA Data Banks: Revolution For Law Enforcement or Threat to Individual Privacy?, 22 American Journal of Criminal Law 461 (Winter 1995) at 479.

7.

7.7 Michael Markett, Genetic Diaries: An Analysis of Privacy Protection in DNA Data Banks, 30 Suffolk University Law Review 185 (1996) at 209.

8.

8.8 E. Donald Shapiro & Michelle L. Weinberg, DNA Data Banking: The Dangerous Erosion of Privacy, 38 Cleveland State Law Review 455 (1990) at 476.

9.

9.9 Id at 477.

10.

1.10 Michael Markett, Genetic Diearies: An Analysis of Privacy Protection in DNA Data Banks, 30 Suffolk University Law Review 185 (1996) at 203.

11.

1.11 Id.

12.

1.12 Id at 205.

13.

1.13 Id at 206.

14.

1.14 Id at 207.

15.

1.15 Id at 208.

16.

1.16 Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) at 1181.

17.

1.17 Id at 1182.

18.

1.18 Id.

19.

1.19 Floyd D. Weatherspoon, The Devastating Impact of the Justice System on the Status of African-American Males: An Overview, 23 Capital University Law Review 23 (1994) at 24.

20.

2.20 Michael Higgins, Acid Test: DNA Databases Help Nail Slippery Criminals, but Their Potential Uses Make Privacy Advocates Nervous When it Comes to Arrestees and Ordinary Citizens, American Bar Association Journal, October 1999, at 64.

21.

2.21 Id.

22.

2.22 Id.

23.

2.23 Id.

24.

2.24 Id.

25.

2.25 Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996) at 1338.

26.

2.26 Id at 1339.

27.

2.27 Id.

28.

2.28 Id.

29.

2.29 Id at 1340-41.

30.

3.30 Yale H. Yee, Criminal DNA Data Banks: Revolution For Law Enforcement or Threat to Individual Privacy?, 22 American Journal of Criminal Law 461 (Winter 1995) at 463.

31.

3.31 Id at 463-64.

32.

3.32 Id at 465.

33.

3.33 Id at 466-67.

34.

3.34 Id at 469.

35.

3.35 Id at 470.

36.

3.36 Id at 474.

37.

3.37 Id.

38.

3.38 Id at 480.

39.

3.39 Id at 484-86.

40.

4.40 Floyd D. Weatherspoon, The Devastating Impact of the Criminal Justice System on the Status of African-American Males: An Overview Perspective, 23 Capital University Law Review 23 (1994) at 24.

41.

4.41 Id at 29-30.

42.

4.42 Id at 30-34.

43.

4.43 Id.

44.

4.44 Id at 42-43.

45.

4.45 E. Donald Shapiro & Michelle L. Weinberg, DNA Data Banking: The Dangerous Erosion of Privacy, 38 Cleveland Sate Law Review 455 (1990) at 456-57.

46.

4.46 Id at 462.

47.

4.47 Id at 472.

48.

4.48 Id at 474-75.

49.

4.49 Id at 476-77.

50.

5.50 Id.

51.

5.51 Kenneth Jost, DNA Databases: Background, Congressional Quarterly Researcher (May 28, 1999) at 457-58.

52.

5.52 Id.

53.

5.53 Id at 458-60.

54.

5.54 Id.

55.

5.55 Id at 462.

56.

5.56 Id at 462-63.

57.

5.57 Kenneth Jost, DNA Databases: The Issues, Congressional Quarterly Researcher (May 28, 1999) at 451.

58.

5.58 Id.

59.

5.59 Id at 452-54.

60.

6.60 Id.

61.

6.61 Id.

62.

6.62 Id at 454-57.

63.

6.63 Nachama L. Wilker, Steven Stawski, Richard Lewontin, & Paul R. Billings, DNA on Trial: Genetic Identification and Criminal Justice, DNA Data Banking and the Public Interest, (Paul R. Billings ed.) 1992 at 141.

64.

6.64 Id at 142.

65.

6.65 Id at 142-43.

66.

6.66 Id at 143-44.

67.

6.67 Id at 144-46.

68.

6.68 Id at 146-47.

69.

6.69 Michael J. Markett, Genetic Diaries: An Analysis of Privacy Protection in DNA Data Banks, 30 Suffolk University Law Review 185 (1996) at 185-87.

70.

7.70 Id at 188.

71.

7.71 Id at 192-93.

72.

7.72 Id at 195-97.

73.

7.73 Id at 200.

74.

7.74 Id at 201-08.

75.

7.75 Id at 208-215.

76.

7.76 Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) at 1181.

77.

7.77 Id at 1181-82.

78.

7.78 Id.

79.

7.79 Id.

80.

8.80 Id at 1182.

81.

8.81 42 U.S.C.A. 14131 (West, WESTLAW through P.L. 106-73.

82.

8.82 Id.

83.

8.83 Id.

84.

8.84 42 U.S.C.A. 14132 (West, WESTLAW through P.L. 106-73)

85.

8.85 Id.

86.

8.86 Id.

 

 
Related Pages:
Home ] Up ] Who owns the Human Genetic Code ] [ DNA and Privacy ]
Subsequent Pages:
Home ] Up ]
Previous Pages:
Home ] Genetics and Race ] Patient Selection Criteria ] Liability for Erroneous Treatment Decisions ] Race And Discretion in American Medicine ]
Back Home Up

Always Under Construction!

Always Under Construction!

 

Contact Information:
Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

Last Updated:
 03/10/2010

You are visitor number:
Hit Counter
since Sept. 2001

Copyright @ 1993, 2008. Vernellia R. Randall 
All Rights Reserved.