Vol. 15 No.5 (May 2005), pp.359-361
DNA AND THE CRIMINAL JUSTICE SYSTEM: THE TECHNOLOGY OF JUSTICE, by David Lazer (ed). Cambridge, MA: MIT Press, 2004. 424pp. Cloth. $67.00 / £43.95. ISBN: 0-262-12265-0. Paper. $27.00 / £17.95. ISBN: 0-262-62186-X.
Reviewed by Lawrence E. Rothstein, Department of Political Science, University of Rhode Island. Email: LER@URI.EDU
This collection of essays, edited by David Lazer, focuses on the policy and ethical issues concerning the collection, use and banking of DNA samples and related information in the criminal legal system. The book stems from the DOJ’s National Commission on the Future of DNA and an important conference at the Kennedy School in 2000. The essays are written by many of the top experts in the field, including Justice Stephen Breyer, Frederick Bieber, George Annas, Troy Duster, Sheila Jasanoff, Michael Smith, and Barry Steinhardt. While all the authors accept, although some reluctantly, that the importance and collection of DNA profiles will grow, most of them recognize that the difference between DNA and either fingerprints or other medical information raises severe problems concerning inappropriate uses, erosion of rights, and discrimination.
One area of consensus is that DNA is different because of its effect on the meaning of time in the criminal legal process. As DNA may be validly analyzed long after it is deposited at a crime scene, it undercuts the rationale of statutes of limitations for prosecutions and time limits on the presentation of new evidence after conviction. DNA analysis is also seen as different because of its ability to turn up information other than the match of a source sample to a crime scene sample and to confirm the identity of a source. Family linkages, ethnicity and medical conditions may all be revealed by DNA analysis.
Other areas of agreement among the authors are that DNA has the most influence at the investigative and post-conviction stages of the criminal process rather than the trial phase. Post-conviction DNA testing, establishing innocence after long terms of imprisonment or sentences to death, has raised substantial concerns about the fairness and accuracy of the entire criminal legal process. The importance of the use of DNA evidence post-conviction, however, will eventually lessen as old cases are disposed of and DNA analysis becomes readily available in current cases. DNA collection and analysis is most important in the investigative stage where it can generate cold hits from offender and crime scene databases or narrow down suspect lists. The importance of DNA evidence at trial is less because exculpatory DNA evidence will often prevent a trial, eyewitness evidence may still be more persuasive for juries, questions about the adequacy of collection and analysis procedures may overshadow the results of the analysis and the reaction of juries to the statistical presentation of analytical results is uncertain.
There is also consensus that the creation and extent of DNA databases and the use [*360] of DNA evidence in the criminal legal process are based on policy decisions that have been heavily influenced by anecdotal evidence of the value of the evidence and databases in solving crimes, rather than data from rigorous studies of its actual crime-solving potential. This presumed value is also enhanced by the political value of promoting any procedures that arguably lead to the more effective apprehension and conviction of violent criminals. The putative value of DNA evidence is then weighed against the equally unmeasured dangers of privacy invasion and racial discrimination.
The book is not for those who have little or no knowledge of the techniques for analyzing DNA or the specifics of the use of DNA evidence in court. Only Frederick Bieber’s essay deals with the former, and none of the essays deal with the latter. Yet, knowledge of these aspects of DNA forensics is necessary to place the anthology in perspective. The essays do an excellent job of outlining the policy and ethical controversies surrounding DNA in the criminal legal system. The first part of the book, Chapters 1-4, lays the conceptual, historical and procedural groundwork for the use of DNA in the criminal legal system. Bieber provides the technical basis of DNA analysis; Simon Cole provides an historical comparison of identification technologies such as body measurements and fingerprinting, suggesting that all of these technologies have been imbued with greater probative value and links to criminal behavior than are warranted. Stephen Breyer, Edward Imwinkelreid, and Margaret Berger discuss the integration of DNA into investigatory, trial court and post-conviction procedures leading to the consensus that trial court use of DNA evidence has less revolutionary effect than the use of DNA in the investigation and post-conviction stages.
In the second part, Chapters 7-12 lay out and confront the ethical issues regarding collection of DNA and creation of DNA databases. George Annas’ essay does not deal specifically with criminal legal system collection and use of DNA, but rather outlines the arguments for legal protection of genetic privacy. The gist of his position is that only uncoerced informed consent prior to the collection of samples or data concerning DNA can protect a person’s privacy and autonomy interests in her or his “future diary.” Similarly, R. Alto Charo primarily considers research and clinical uses of DNA to build a case for the “Recommendations of the National Bioethics Advisory Commission on Research Involving Human Biological Materials.” Barry Steinhardt, of the Innocence Project, concludes that DNA databases must be as limited as possible and that no arrestees or suspects should be included in the databases. In contrast to Steinhardt, D. H. Kaye and Michael Smith make the case for universal inclusion in a DNA database to offset the already discriminatory effects of inclusion based on prior interactions with the criminal legal system. Amitai Etzioni and Viktor Mayer Schonberg agree that individual privacy and constitutional rights must be balanced against societal interests, while differing on the weight of each and on the policies that the balance implies.
In part three, entitled “The Coming Storm,” Garland Allen and Troy Duster deal with the dangers of using genetic databases for behavioral research [*361] because of the inherent bias in focus of the databases, directions of research and use of the results. In the concluding section, Sheila Jasanoff warns that the scientific advice of technical advisory commissions and reports is inextricably fused with the politics of the criminal legal system and that the best course is to acknowledge the politics fully and try to make decision making on the issues surrounding the use of DNA profiles as openly democratic as possible. Finally, David Lazer and Michelle Meyer summarize and clarify the areas of consensus and disagreement among the book’s authors.
This collection of essays gives an excellent overview of the state of the legal and ethical issues concerning DNA profiling and criminal databases as of 2004. The level of the material makes it suitable for the knowledgeable layperson and upper level undergraduate or graduate courses. What is missing is the analysis of the political juggernaut that will inevitably extend the databases to arrestees and possibly further without much concern either for privacy or the elimination of the inequities already present in the criminal legal system. At present, the only thing that seems to be slowing this expansion in most states is the backlog in sample retrieval and analysis and the cost of extending DNA sample collection to new classes of people. Unfortunately, this makes already existing collections of fluids and tissue (such as Newborn Screening Guthrie cards and military DNA banks) even more attractive for adding to forensic databases.
© Copyright 2005 by the author, Lawrence E. Rothstein.
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