May 8, 2002
"A Search for Justice in Our Genes"--An Op-Ed by Prof. Akhil Amar
(This essay originally appeared in the May 7, 2002, edition of the New York Times.)
A Search for Justice in Our Genes
By Akhil Reed Amar
Across the political spectrum there is a race to bring DNA law into line with DNA technology. On the left, civil libertarians are cheering proposals to give convicts greater access to DNA testing to prove their innocence. On the right, prosecutors and police seek broader authority to take biological samples from individual suspects for DNA analysis.
Somewhere in the center, victims' rights groups and feminists have allied to urge speedy DNA testing of evidence taken from victims of rape. Evidence from up to 500,000 such cases nationwide has yet to be analyzed, and Senator Hillary Rodham Clinton and Representative Jerrold Nadler have introduced legislation to provide money for more timely tests of these so-called rape kits.
Each of these proposals would solve some problems while ignoring others. In the long run, America may well see the need for more DNA testing and much stricter privacy safeguards than anyone -- left, right or center -- is now suggesting.
The first step in the creation of a truly comprehensive database would be convincing the public of its value. With such a database, many cases could be cracked quickly. Because rapists typically leave behind semen, or blood and skin cells under victims' fingernails, police could solve and so further deter many types of rape. Genetic material is often found at the scenes of other crimes and could be used to solve them as well. If linked to birth certificates and drivers' licenses, the database could foil various kinds of identity fraud, benefiting both law enforcement and crime victims.
A universal DNA database would also be a godsend to innocent convicts. Today, when an inmate finally succeeds in proving that his DNA does not match the DNA found at the crime scene, he has not necessarily proved his innocence. With only a "negative match," prosecutors remain free to argue that the crime was committed by two perpetrators -- the convict and an unknown accomplice. The DNA came from the accomplice, prosecutors can argue, but other evidence shows that the convict was also involved. Because the convict cannot conclusively disprove this theory, his conviction might well stand.
But with the database, the crime-scene DNA would typically do more than generate a negative match with the innocent convict; it would also generate a positive match identifying a specific person whose DNA profile fits that found at the crime scene. Once this person is known, it will be easier for innocent convicts to exonerate themselves.
The database would also be useful in reviewing the fairness of the overall system. Periodic audits based on proven cases of past error would show whether there were patterns to these mistakes -- specific dishonest cops, faulty police practices or bad rules of evidence. Reforms based on these audits would benefit the entire criminal justice system.
Of course, such a database raises serious privacy concerns: our DNA code contains much information that could be used in sinister ways. Information about medical predispositions could threaten a person's health insurance, for example. Information about paternity could be used for purposes of embarrassment or blackmail.
To minimize these risks, a DNA statute should limit testing to so-called junk DNA -- parts of the DNA code that identify individuals without revealing other medical facts. The law should also allow the government to search the database only for important needs, as certified by a special DNA court, whose judges would develop expertise in the uses and abuses of DNA and keep abreast of new scientific developments.
There should also be severe penalties for misuse of DNA data. Because governments are already collecting biological samples from some people -- criminal convicts in some jurisdictions, mere suspects in others -- there is an urgent need to legislate strong safeguards whether or not existing programs are expanded to create a universal database.
But once these protections are in place, it makes sense to include all citizens in the database. Compiling it need not be overly intrusive. First, the government would take a biological sample from as many citizens as possible. Every newborn now has a medical blood test; a few drops could be sent to a DNA lab. Adults could undergo a cheek swab when they renew their drivers' licenses, for example. The federal government would then analyze the samples, generating a DNA profile for each person. This data would be stored in computers and could be checked against any genetic material found at crime scenes.
Would Americans ever agree to such a program? Only if they understood the benefits to society of a real improvement in the criminal justice system. Building a universal database would encourage the creation of a broad political coalition with incentives to protect privacy interests from being eroded over time.
A comprehensive database would also treat all citizens equally, unlike current laws that often give authorities vast discretion to test some Americans but not others. Best of all, this database, protected by strong privacy laws, would increase the odds of finding the guilty, freeing the innocent and vindicating the victim.
Akhil Reed Amar is a professor at Yale Law School and the author of The Bill of Rights: Creation and Reconstruction.