Should individuals have the right to DNA privacy? The Ohio Supreme Court recently essentially said “No.” The decision prompted opposing opinion pieces in The Plain Dealer (Cleveland) on December 2, 2012. They are enlightening to all considering public policy on the use of DNA testing and DNA profiles in criminal justice. I hope that this summary, as well as this opinion, prompts a broader discussion toward recommended policies on the use of DNA, our most reliable form of human identification in criminal justice.
When and under what conditions biological evidence for DNA testing should be taken and whether or not it should be retained are controversial issues even within the Innocence community. This is understandable. While DNA testing of crime scene evidence has proven the innocence of more than 300 persons, it has also revealed that government misconduct—police and prosecutorial—is a significant contributing factor to wrongful conviction. The natural response for those who have suffered from or studied misconduct under color of law, is to be cautious when putting personal information in the hands of government officials.
By way of disclosure, this writer nevertheless has been on the side of post-conviction access to DNA testing and retention of DNA evidence to ascertain truth in justice, because the benefit of avoiding wrongful conviction in which the innocent languish in prison while the guilty are free to victimize outweighs the risk that government officials would misuse DNA profiles. This position includes the reminder that it is the responsibility of citizens to be diligent regarding government abuses, a requirement that wrongful conviction has elevated for many Americans.
When and under what conditions should DNA be taken? States have answered these questions very differently. In Ohio, at the request of former Attorney General Jim Petro, the legislature gave the attorney general and law enforcement the authority to take DNA from every felon and first-degree misdemeanant. In the first three years, more than 200,000 DNA profiles were collected via a simple mouth swab and entered into CODIS, the national databases that include crime scene biological evidence and criminal DNA profiles. This initiative instantly solved dozens of cold cases, no doubt hundreds in subsequent years. Remarkably, some of the cases were decades old.
With regard to the timing of the collection of DNA, the National Institute of Justice reports (here) that 28 states and the federal government now authorize the collection of a DNA sample upon arrest, but there are a variety of policies regarding the offenses deemed eligible for this collection. According to the report, 11 states “require an arraignment of judicial determination of probable cause to occur before a sample can be collected or analyzed.”
Proponents of early and broad use of DNA argue that fingerprinting has been utilized by law enforcement as a human identifier since the early 1920’s. DNA is also a human identifier, except better, and therefore policies pertaining to fingerprinting should also be applied to DNA.
Those who argue against the broader uses of DNA—for example, recommending that DNA be taken after a conviction as opposed to at arrest—believe that DNA is more than an identifier; it also contains personal information such as one’s genetic likelihood to acquire various diseases.
This was the case made in the above referenced opinion piece, “Keep DNA evidence private” (here) by Jonathan Witmer Rich, an assistant professor at the Cleveland-Marshall College of Law and Brendan Heil, a student at the law school who has written on the subject of DNA privacy and the Fourth Amendment’s protection from unreasonable searches.
In the Ohio case State v. Emerson legally obtained DNA evidence cleared Emerson of a rape charge, but his DNA was retained in the Ohio DNA database, and it subsequently matched crime scene evidence from the scene of a murder. Emerson was convicted largely upon this evidence. The Ohio high court ruled that the state can retain an arrestee’s DNA profile, even if the arrestee is acquitted of the crime for which it was collected. Rich and Heil opined that this ruling was “unnecessary” and that it eroded DNA privacy for Ohio citizens.
The two wrote, “What makes this especially problematic is that DNA is not just a tool for identification, like fingerprints, DNA shows who we are on a scientific level. DNA can tell someone your race, ethnicity, gender and the identity of your closest relatives. DNA can reveal whether you are at risk for a variety of medical conditions.”
Jacob S. Shergow, a fellow at the Center for Law and the Biosciences at Stanford Law School, responded (here) making an important distinction between a DNA sequence and a DNA profile. In short, a DNA profile does not reveal any information about, for example, the health risks of a person. According to Shergow, a DNA profile is strictly a human identifier that only serves the purpose of matching to another profile.
He explained, “A DNA sequence is the collection of ‘letters,’ what scientists call ‘nucleotides,’ that make up one’s DNA. …Scientists can derive a lot of information from these sequences: whether someone processes cholesterol efficiently, or has a high risk of developing cancer. Though there are federal laws that prohibit genetic discrimination, many people, nonetheless, believe that they have a privacy right to their DNA sequence. They do not want their neighbors, employers or their health insurance companies to know whether or not they have, for example, a higher-than-usual risk of developing diabetes.
“A DNA profile, on the other hand, is generally a collection of ‘sizes’ of pieces of DNA. This size information does not identify the individual letters that make up a DNA sequence. Unlike DNA sequences, scientists cannot derive much information from DNA profiles. They cannot determine someone’s race, height or eye color, or whether a person would be at risk for developing diabetes. In fact, the only thing for which a DNA profile is truly useful is matching it to someone else’s, much in the same way crime laboratories use fingerprints or hair samples.”
Shergow points out that historically our courts have afforded a right to privacy to genetic information, but not “non-identifying” information such as fingerprints. These are viewed as “inherent characteristics.”
This important distinction enables proponents of the broad use of DNA to properly use the fingerprint analogy, with science to support it. My bias on this subject duly acknowledged, I agree with Shergow’s conclusion: “…it seems that the Supreme Court of Ohio got it right.”