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Add an EventHomo Delinquens: The Race of Born Suspects
The lucky few freed from Death Row by DNA are now far outnumbered by the throngs convicted by DNA evidence - perhaps wrongly. Speaking at Stanford recently, UC Irvine Asst. Prof Simon A. Cole quoted a British report that in a typical month DNA matches are found in 15 murder cases, 31 rape cases - and 770 cases of motor vehicle crimes! But, Prof. Cole noted, DNA evidence requires specialists to find flaws, and public defenders assigned to such high-volume, low-stakes cases are highly unlikely to give those cases that kind of attention. So prosecutors have the advantage of knowing that purported DNA evidence will largely go unchallenged. In the same way that some activists initially supported the Taser as a more humane alternative to deadly force, and then found it was routinely used in minor offenses as a more deadly alternative to talking, use of DNA evidence to fight the death penalty bolstered its status as an infallible truth machine - making it more difficult to fight DNA profiling's dangerous expansion.
That expansion leaped into a new era in 2004, when California's Proposition 69 required collection of DNA samples from not only adults and juveniles convicted of committing or attempting any felony, arson, or sex offense, but also adults arrested for or charged with committing or attempting felony sex offenses, murder or voluntary manslaughter - even if there is no conviction. Additionally, starting in 2009 DNA will be collected from adults arrested for, or charged with, ANY felony offense - again, even if there is no conviction. The expanded list of qualifying offenses is retroactive, regardless of when the person was convicted. As a result, DNA can be obtained from adults and juveniles already serving time in correctional facilities as well as those who are on parole or probation for these offenses. As the League of Women Voters pointed out: "States have moved in less than a decade from collecting DNA from convicted sex offenders, on the theory that they are likely to repeat their crimes and that they frequently leave biological evidence, to data banks of all violent offenders, to all persons convicted of a crime, including juvenile offenders, and now to this proposal to collect DNA samples from everyone arrested or charged with any felony offense...Once individuals are put into the criminal DNA database, they must request a court order to be removed--even if they are factually innocent and never charged with a crime--and the government has no obligation to remove them. Each year in California, more than 50,000 felony arrests do not result in criminal charges."
Britain also retains DNA profiles of people who've been cleared of crimes - and this appalls Sir Alec Jeffreys, the inventor of identity matching by DNA. In 2002 Professor Jeffreys called the practice "highly discriminatory". Jeffreys also notes that a DNA sample is not the same as a fingerprint, since a DNA specimen contains genetic data on family and health: "My other concern is that some forensic scientists are now beginning to look for physical characteristics; genetic determinates of hair and eye colour, ethnic group as well - to get some indication of the physical appearance of a person where you have no clear suspect. The use of this sort of very private genetic information by the police does fill me with very considerable concern." So not only has the government rapidly expanded the criteria for DNA collection, but the use of the DNA sample has been steadily moving beyond simple identity matching to speculative construction of physical identity - i.e., here in California, DNA leads to BMA/HMA: "Black/Hispanic Male Adult".
In May 2006 forensic researchers publicized their newest way to circumvent the restrictions of the original vision of DNA "fingerprinting": familial searching. Frederick Bieber, of Harvard Medical School explained in a BBC interview: "Normally one would look for a perfect match between crime scene [DNA] evidence and a known offender in a database. Very close but not perfect matches might indicate, with some reliability, that crime scene evidence was derived from somebody very closely related to somebody in the databank. The offender may not be in the databank, but he may be the father or the son or the brother of someone who is."
It's important to note how often this brief statement uses the words "may" or "might". While both the public and law enforcement views DNA matching as infallible, specialists know that matching is not deterministic but statistical: the match is never 100% certain but, under best conditions, there is a high probability of accuracy (Consequently, some scientists warn that expanding the database increases the chance of a false positive match resulting from two unrelated individuals that coincidentally share the same DNA identity features). But routine forensic procedures are far from best conditions. The new technology is handled in the old way: in the corrupt style of the FBI Crime Lab, which a mid-1990s Justice Department investigation revealed had provided false reports on fingerprint, DNA, and ballistics to confirm local police theories without actually performing work - in cases including the 1995 Oklahoma bombing and the 1993 World Trade Center incident. Or in the incompetent style of the Houston police crime lab, whose work was so shoddy that it was banned from submitting into the FBI DNA database. Or the pure red-white-and-blue style of break-ins, theft, fraud, kidnapping, perjury, fabrication of evidence, frame-ups, and murder that distinguishes COINTELPRO and its current successor of unknown name. The systemic criminal injustices of the US criminal justice system guarantees that the expansion of DNA profiling will deepen the disparities in the US, home of the world's highest incarceration rate. According to a 2003 Justice Dept. report, a US black male has about a 1 in 3 chance of going to prison during his lifetime, a Hispanic male has a 1 in 6 chance ; a white male, 1 in 17. From that basis, familial searching will spin a web that effectively incorporates entire communities into the database of "suspects": criminalized second-class citizens subject to increased monitoring and intrusions without even the minimal legal protections that govern conventional detention and arrest procedures. Prop 69 means you can be freed from bogus charges, yet remain a suspect for life. Familial searching means when your kids inherit your DNA, they also inherit your bogus criminalization: born suspects.
If DNA is a key to our identity, then it must be understood that locking up our DNA in government databases is "identity imprisonment". The mass roundup of DNA provides the selection pool that streamlines the ongoing program of widespread physical imprisonment of targeted communities. It's the next step toward achieving the dream of generations of US eugenicists - to cleanse America of its genetic undesirables - with a ruthless brutality that surpasses that of the Nazis in both scale and efficiency.
Resources:
- "DNA: Problem or solution?", October 2006
http://www.yorkpress.co.uk/display.var.985191.0.dna_problem_or_solution.php
- "Kin search 'could trap criminals'", May 2006
http://news.bbc.co.uk/1/hi/sci/tech/4763545.stm
- DNA Fingerprinting and Civil Liberties: from the American Society of Law, Medicine & Ethics, 2004-2005
http://www.aslme.org/dna_04/index.php
- "Proposition 69 DNA Samples. Collection. Database. Funding", Nov. 2004
http://www.smartvoter.org/2004/11/02/ca/state/prop/69/
- "Privacy fears over DNA database", Sep. 2002
http://news.bbc.co.uk/1/hi/in_depth/sci_tech/2002/leicester_2002/2252782.stm
- "War Against the Weak: Eugenics and America's Campaign to Create a Master Race", Edwin Black 2004 (book)
"The real concern I have in the U.K. is what I see as a sort of 'mission creep,'" said Jeffreys in a BBC radio interview. When the database was initially established, it was meant to hold DNA from criminals, he added.
"Now hundreds of thousands of entirely innocent people are populating that database, people who have come to the police's attention, for example, by being charged with a crime and subsequently released," he said. And he was concerned that samples taken for one purpose could be used for different purposes in the future.
The samples were "skewed socioeconomically and ethnically," he said. "In my view that is discriminatory." The UK Home Office does not give precise figures on the ethnic make-up of the database, but admits that the number of samples from black males is disproportionate to the make-up of the UK population. Civil rights campaigners say a third of black males in England and Wales are on the database.
Prof. Jeffreys' comments coincided with the launch by the Nuffield Council on Bioethics of a year-long study of the public's views of the laws allowing police to take, store and analyze DNA. Scientists at Nuffield are concerned the public and legal system have been seduced by the portrayal of DNA evidence as infallible. Dr Carole McCartney of Leeds University, expressed concern at a recent prosecution where a man was prosecuted for a robbery on two strands of evidence: he had been seen in the vicinity and a DNA profile matching his had been found near the scene. Professor McCartney said: "My DNA is all over my local off-licence. If it gets robbed will I automatically be a suspect?"
Professor Bob Hepple, chairman of Nullfield, said the central issue was whether the UK would "become instead of a nation of citizens, a nation of suspects".
Sources:
"DNA pioneer says British database has gone too far", 1 Nov, CNET
http://news.com.com/DNA+pioneer+says+British+database+has+gone+too+far/2100-11746_3-6131750.html
"National DNA Database: have your say", 1 Nov, The Register
http://www.theregister.co.uk/2006/11/02/nuffield_dna_consultation/
"Public consulted over DNA fears", 1 Nov, BBC
http://news.bbc.co.uk/2/hi/uk_news/politics/6104876.stm
By Eric Goldscheider/Guest columnist
Friday, March 23, 2007 - Updated: 12:18 AM EDT
The most recent revelations about problems at the Massachusetts State Police crime lab raise deeply disturbing questions about the commitment to civil liberties at an institution that can deprive you of your freedom.
According to published reports, the turmoil leading to lab director Carl Selavka's resignation goes beyond missed deadlines for reporting DNA matches. It seems the lab wandered into dangerous legal and ethical territory by conducting searches for so-called "familial links." This is when in the absence of an exact DNA match to a suspect, technicians look for near matches in the hope of locating a family member.
It's not that this practice is without advocates. Some see it as a legitimate tool for catching criminals. But widening the scope of DNA searches in the absence of legislative and judicial oversight represents a power grab chilling to anyone who believes the State Police is meant to serve the people, not the other way round.
With a national push towards broadening DNA collection to include not just convicts of serious crimes, but arrestees as well, it is imperative that scientists not take the law into their own hands. By lunging ahead of the rules under which it is supposed to operate, the lab in effect circumvented public debate on an important policy question.
Searching for familial links might be a useful tool in some situations, but its careless use will put us on a fast track toward the establishment of a de facto national DNA data base, according to Dr. Theodore Kessis, a Johns Hopkins trained geneticist who has consulted on forensic cases for a decade.
"Short of collecting every citizen's DNA, familial searches are the ultimate in Big Brother tools," said Kessis, "if the government came to the people and said, 'hey, we want everyone's DNA for a national database', the response in this country would be, 'are you kidding, absolutely not', even from conservatives like myself.
In some jurisdictions, 60 percent of African Americans have been arrested at some point in their lives. Among the rest of the population, many people have a relative, even once removed, who's made an involuntary trip to the station house.
The mere fact that the State Police lab tolerated familial searches raises the question of who knew and when? It also gives a glimpse into the mindset of a lab that often behaves more like an arm of law enforcement than as a neutral arbiter of scientific information.
One need look no further than the Benjamin LaGuer case to see a pattern of forensic testing, sworn testimony, and advice to the judiciary that serves the perceived needs of police and prosecutors at the expense of basic fairness. It started with LaGuer's arrest in 1983 when a State Police report was generated showing that fingerprints on a key piece of evidence were not his. For reasons that the late Justice Martha B. Sosman termed "unfathomable," that report never made its way to the defense and hence the jury. When the report finally emerged 18 years later, the actual prints had been lost or destroyed while in State Police custody.
A second and equally serious lapse in the LaGuer case is that the State Police chemist wrote in the original forensic report that he could not determine a type for five of the six blood stains delivered to the lab. The sixth, he wrote in 1983, was Type B, the same as LaGuer's. A 2001 DNA test on that blood showed it to belong to the victim, who had Type O blood. This is too basic an error to be excused without a full inquiry, especially as this error was introduced as fact at post conviction hearings and in the text of court decisions. To her shame, Worcester prosecutor Sandra Hautanen cited this false report in recent filings with the Supreme Judicial Court.
In 2002 a DNA test implicated LaGuer. The role of the State Police lab in setting up the procedures was not trivial. LaGuer's expert performed a blind test of the evidence. The Massachusetts State Police catalogued and vouched for the integrity of the evidence and sent its own staff person to California to witness the test. Most importantly, the police lab drafted the affidavit that formed the basis for the court order, neglecting to alert anyone to what should have been bright warning signs for contamination.
Kessis believes the conclusions drawn from the test were wrong. The errors, he wrote in a letter to a legislator, were "of the human kind, individuals failing to understand the strengths, weaknesses and limitations of the test at hand."
Now the lab seems to be showing what has to be characterized as either a reckless disregard for civil liberties or just plain ignorance by secretly moving toward the use of familial links. We think of laboratories as places where dispassionate science takes place. They should not be an arm of law enforcement where evidence is juiced, or in some cases falsified, to aid the prosecution.
"Remember," said Kessis, "familial search plus databases that include arrestees equal a national database put in place without the blessing of the public." Having studied the LaGuer case in some detail, he adds, "that the lab thought these types of searches where cricket, allows for a peek into the mindset of the folks LaGuer is dealing with."
From the Los Angeles Times
The problem with expanding DNA searches
They could locate not just convicted criminals but also relatives -- violating privacy.
By Jennifer Mnookin
JENNIFER MNOOKIN is a professor at UCLA's School of Law.
April 5, 2007
IF YOU'RE CONVICTED of a felony (or in some states a misdemeanor), your DNA goes into a database. That information primarily helps in the pursuit of repeat offenders. But some people want to extend the reach of that data to find people who are only a partial match. It's a particularly personal form of a law enforcement fishing expedition.
The technique is called "familial searching," and it targets not only the convicted but their relatives as well.
Sometimes, when an investigator tries to match a crime scene sample to the several million profiles in, say, the FBI's database, no exact match turns up. But there might be someone whose DNA profile is unusually similar. If the partial match is sufficiently close, or if some of the genetic markers in the sample are sufficiently rare, it could mean that the crime scene sample was left by a close genetic relative of the person who is included in the DNA database. Thus the familial search casts suspicion not on the convicted criminal in the database but on that person's siblings, parents or children.
Should forensic scientists reveal partial matches to police and prosecutors? Should officials be able to use this DNA as the basis for investigating relatives? Is this a lead that any investigator would be crazy to ignore, or is it an encroachment on civil liberties?
The difficulty is that it is both. While mining the DNA database for clues is certainly tempting, it is a temptation we should resist. Fairness and privacy concerns require it.
Although Britain has been using familial searches for several years, it's just arriving in the United States. Until recently, the FBI refused to allow states to reveal partial matches in its database to other investigatory agencies, but it's beginning to soften that stance. Many prosecutors, including those in California, are lobbying hard to be able to use the technique, and a 2006 article in Science argued that the use of such kinship analysis could increase the number of cases that were solved by up to 40%.
It's easy to see the arguments for using familial search techniques. If we forgo partial matches, violent criminals may remain at large. There are some powerful anecdotal examples of how familial searching has led police to suspects. And we use partial information all the time in other settings. If someone looks at suspects in a photo spread, for example, and says, "It's not any of those people, but the perpetrator looked a lot like No. 3," any competent investigator would think to ask if No. 3 had a brother.
Yet we should resist the impulse to engage in familial searching. Put plainly, it is discriminatory. If I have the bad luck to have a close relative who has been convicted of a violent crime, authorities could find me using familial search techniques. If my neighbor, who has the good fortune to lack felonious relatives, left a biological sample at a crime scene, the DNA database would not offer any information that could lead to her.
When DNA databases were first put into use, there was much debate about whether they were an impermissible invasion of people's privacy. The argument that generally won out was that convicted criminals gave up some privacy rights. But those people who just happen to be related to criminals have not given up their privacy rights as a consequence of their actions. To use a search technique that targets them simply because of who their relatives are is simply not fair.
This concern is exacerbated because African Americans and Latinos make up an outsized portion of the DNA database compared with their proportion in the population at large. This means that African Americans and Latinos not in the database would be disproportionately available to familial searching. The same point could be made for the poor and working-class populations compared with those who are wealthier.
While we might not be sympathetic to the claim of a privacy violation made by a guilty person caught by familial search techniques, we ought to care that these procedures disproportionately affect the underprivileged.
But apart from these disparate racial and economic factors, it is not right to have an investigative technique that targets not just convicted criminals but also their relatives while leaving the rest of us immune. Moreover, the broader the parameters for partial match searches, the more likely false positives become.
Those who are not troubled by familial searching ought to have the courage of their convictions and take their implicit logic one step further. If it is ethically and legally acceptable to use DNA search techniques on people without prior convictions, then why not have a national database that includes everyone? The onus ought to be on the advocates of familial search techniques to justify why they should be allowed.
My point is not to argue that we should (or shouldn't) have a universal database. But as a matter of fairness, it ought to be all or nothing. The misfortune of having a criminal in the family tree ought not to be what determines whether a DNA search can find you.
http://www.latimes.com/news/opinion/commentary/la-oe-mnookin5apr05,0,2816191.story?track=rss
In an article that confirms that the criminal justice system is more criminal than justice, and that law enforcement view DNA only as a tool to imprison - not to free, the Denver Post revealed that prosecutors across the country throw out evidence that may contain DNA samples that could prove that someone is wrongly imprisoned - before the appeals process has run its course. Prosecutors lobbied hard to enshrine this practice into legislation. The practice won the approval of the Supreme Court, when Chief Justice William Rehnquist wrote for the majority that the practice "can at worst be described as negligent" with "no suggestion of bad faith on the part of police" and therefore did not violate constitutional due-process rights. The dissenting opinion of Justice Harry Blackmun was as quaint in its naivete as it was factually and logically correct: "The Constitution requires that criminal defendants be provided with a fair trial, not merely a 'good faith' try at a fair trial". The article reports that the decision has inspired many states to pass laws justifying evidence destruction.
The article is too long to post here but is important to read, as it does a good job of exposing the base corruptness of the local DA, who flatly refuses to reopen a rape case where police (in violation of their own policies) destroyed evidence that could have exonerated a man imprisoned for 11 years: "The defendant has had his day in court.". It's also instructive to view the photos accompanying the articles, and note the general physical similarity of the convicted - see how they all fit "the profile".
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