Genetic Justice Read online

  Genetic Justice

  GENETIC

  JUSTICE

  DNA Data Banks, Criminal Investigations,

  and Civil Liberties

  Sheldon Krimsky

  and Tania Simoncelli

  Columbia University PressNew York

  Columbia University Press

  Publishers Since 1893

  New York Chichester, West Sussex

  cup.columbia.edu

  Copyright © 2011 Sheldon Krimsky and The American Civil Liberties Union Foundation

  All rights reserved

  E-ISBN 978-0-231-51780-5

  Library of Congress Cataloging-in-Publication Data

  Krimsky, Sheldon.

  Genetic justice : DNA data banks, criminal investigations, and civil liberties / Sheldon Krimsky and Tania Simoncelli.

  p. cm.

  Includes bibliographical references and index.

  ISBN 978-0-231-14520-6 (cloth : alk. paper)—ISBN 978-0-231-51780-5 (electronic)

  1. Criminal investigation—Cross-cultural studies. 2. DNA data banks—Cross-cultural studies. 3. Evidence, Criminal—Cross-cultural studies. I. Simoncelli, Tania. II. Title.

  HV8073.K668 2011

  363.25′62—dc22 2010007236

  A Columbia University Press E-book.

  CUP would be pleased to hear about your reading experience with this e-book at [email protected].

  References to Internet Web sites (URLs) were accurate at the time of writing. Neither the author nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

  CONTENTS

  Foreword by Anthony D. Romero

  Acknowledgments

  Introduction

  PART I: DNA in Law Enforcement: History, Applications, and Expansion

  1 Forensic DNA Analysis

  2 The Network of U.S. DNA Data Banks

  3 Community DNA Dragnets

  4 Familial DNA Searches

  5 Forensic DNA Phenotyping

  6 Surreptitious Biological Sampling

  7 Exonerations: When the DNA Doesn’t Match

  8 The Illusory Appeal of a Universal DNA Data Bank

  PART II: Comparative Systems: Forensic DNA in Five Nations

  9 The United Kingdom: Paving the Way in Forensic DNA

  10 Japan’s Forensic DNA Data Bank: A Call for Reform

  11 Australia: A Quest for Uniformity in DNA Data Banking

  12 Germany: From Eugenics to Forensics

  13 Italy: A Data Bank in Search of a Law

  PART III: Critical Perspectives: Balancing Personal Liberty, Social Equity, and Security

  14 Privacy and Genetic Surveillance

  15 Racial Disparities in DNA Data Banking

  16 Fallibility in DNA Identification

  17 The Efficacy of DNA Data Banks: A Case of Diminishing Returns

  18 Toward a Vision of Justice: Principles for Responsible Uses of DNA in Law Enforcement

  Appendix: A Comparison of DNA Databases in Six Nations

  Notes

  Selected Readings

  Index

  FOREWORD

  On a Saturday morning in March 2009, a young woman named Lily Haskell attended a peace rally in San Francisco to express her opposition to the Iraq war. During the course of the demonstration Haskell was arrested on suspicion of trying to help another protester, who was being held by police. Within hours Haskell was released. Although she was not charged with any crime, she was required to submit a DNA sample simply on the basis of her arrest.

  Haskell is one of thousands of innocent individuals who have had their DNA forcibly collected, analyzed, and stored by police. She is the lead plaintiff in a class-action lawsuit filed by the ACLU of Northern California that seeks to put an end to a policy that requires anyone arrested for a felony to turn over their DNA. In recounting her experience she said, “Now my genetic information is stored indefinitely in a government database, simply because I was exercising my right to speak out.”

  Rapid developments in technology—the Internet, cell phones, digital photography, and computer networks, among others—unquestionably have brought significant benefits to our daily lives. Yet these same technologies, applied in the form of warrantless wiretaps, e-mail monitoring, video surveillance, and data mining, threaten to trump our most basic freedoms of privacy, autonomy, and self-expression. Too often—and perhaps nowhere more in history than in this post-9/11 era—we have seen the government wield the power of technology to gain information about its citizens, placing the delicate balance of safety and freedom at risk.

  A similar pattern is true for forensic DNA technology. Twenty years ago the FBI initiated a pilot project with a handful of states and local crime laboratories to create a shared database system of the DNA profiles of violent sex offenders. By the new millennium every state law-enforcement agency in the United States had DNA collection systems up and running and connected through the FBI’s system. Today more than 8 million people have had their DNA collected and permanently retained in this system, making the U.S. forensic data bank the largest in the world.

  No one would deny that forensic DNA technology has brought significant benefits to law enforcement. Forensic DNA analysis has irrefutably contributed to the resolution of a number of crimes as well as to the exoneration of wrongfully convicted persons. But today’s national DNA data bank is a far cry from the one that was envisioned 20 years ago. Aggressive promotion of the DNA technology under the rubric of public safety, along with a gradual erosion of basic privacy and due process protections, has led us to a system where increasing numbers of innocent people are being identified, tracked, or monitored by way of their DNA. Forensic DNA technology has moved well beyond its initial role as an important tool for use in criminal investigation and has emerged instead as an instrument for surveillance that reaches broadly across the population to individuals who have never been charged or convicted of a crime.

  How have we gotten to this point? What does it mean for civil liberties and the pursuit of justice? And where do we go from here? Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties seeks to answer these questions. Part I describes the history and expansion of DNA data banking in the United States and provides detailed analyses of some of the most controversial law-enforcement practices involving DNA that are used today, such as DNA dragnets, surreptitious DNA sampling, and arrestee testing. Part II focuses on comparative aspects with special emphasis on the United Kingdom, which has proceeded perhaps even more aggressively than the United States in building and maintaining its DNA data-banking system. Part III provides a thoughtful critique of society’s efforts to balance personal liberty, privacy, social equity, and security in the development and use of forensic DNA technology. After analyzing in detail the implications of forensic DNA data banking for privacy and racial justice, the underacknowledged issue of fallibility in DNA identification, and the uncertainties associated with DNA data-banking efficacy, the authors prescribe a series of principled recommendations for ensuring that decisions about the uses of DNA technology reflect a vision of justice where privacy, autonomy, and fairness are placed in the context of responsible criminal investigation.

  Genetic Justice is highly accessible to the general reader while it also provides a wealth of legal analyses and policy discussions that will be highly informative to lawyers, policy makers, judges, and law-enforcement officers who want a comprehensive understanding of both the power of the technology as well as its technical and constitutional limitations. From this book a broad spectrum of readers will gain a deeper and more balanced appreciation of the issues involving forensic DNA databases.

  This book emerged out of the collaborative effor
ts of two eminently qualified and distinguished experts, and I am especially proud that the ACLU played a significant role in its fruition. Tania Simoncelli, the ACLU’s first ever Science Advisor, brings to the book a mastery of scientific and technological aspects of genetic technologies together with their implications for civil liberties and social justice, as well as tremendous insights gained from her extensive advocacy work in this area. Sheldon Krimsky, who has published many important books in the areas of science and policy, was invited to the ACLU as a visiting scholar during 2007–2008, during which time the initial concept and research for the book took shape.

  Genetic Justice should be read by everyone who cares about constitutional rights and criminal justice. We all want to solve crime. But the fact that crime occurs does not justify the erosion of principles that are at the core of our constitutional identity. One of the most fundamental principles of this country is that a balance must be retained between safety and freedom. Where technological developments challenge or disrupt that balance, a strong call for the protection of civil liberties and a clear, rational proposal for restoring the balance of personal liberty, social equity, and security are urgently needed. Genetic Justice will help you grapple with and perhaps make up your mind about where that balance should be.

  Anthony D. Romero

  Executive Director

  American Civil Liberties Union

  ACKNOWLEDGMENTS

  We are grateful to a number of friends and colleagues who have contributed to this project. We wish to acknowledge the following people for their thoughtful help, support, and advice.

  We are most appreciative of the feedback we received from the following U.S. reviewers who commented on early chapters: Bruce Budowle, Michael Risher, and Professors Joseph Dumit, Troy Duster, Dan Krane, and Patricia Williams. A number of people outside the United States also made important contributions to this book. For chapter 9 (the United Kingdom), Dr. Helen Wallace and Professor Carole McCartney. For chapter 10 (Japan), we are especially indebted to Emi Omura for researching and translating many documents, initiating contacts, and setting up and translating interviews with Japanese officials, lawyers, and professors. Others in Japan who provided useful knowledge include Professors Hikaru Tokunaga, Kenji Sasaki, Katsunori Kai, and Tatsuhiko Yamamoto, and Hiroshi Sato. For chapter 11 (Australia), Professors Jeremy Gans and Charles Lawson. For chapter 12 (Germany), Professors Michael Jasch and Peter Schneider for providing detailed background on Germany’s forensic DNA database system. For chapter 13 (Italy), Gianna Milano contributed primary research, interpreted Italian reports, and wrote multiple drafts. Others in Italy—Magistrate Amedeo Santosuosso, Professor Giuseppe Novelli, Luca dello Iacovo, and Dr. Luciano Garofano—also read and commented on the chapter.

  Our thanks to Dara Jospe and Claire Giammaria for their editorial work and research on early chapters.

  Peter Neufeld and Barry Scheck, directors of the Innocence Project in New York, and their staff, especially Madeline DeLone, Stephen Saloon, Rebecca Brown, Emily West, and Vanessa Potkin, provided background material and data that contributed to several chapters. Chapter 16 benefited greatly from the work of and discussions with Professor William C. Thompson.

  Sheldon Krimsky wishes to express his gratitude to the Department of Sociomedical Sciences at Columbia University, and especially Professor David Rosner, for hosting him as a visiting scholar and providing him with an office during 2007–2008; to the Benjamin Cardozo Law School for hosting him as a visiting scholar and for the use of its law library during 2007–2009; and to the American Civil Liberties Union (ACLU) for hosting him as a visiting scholar and providing him with an office during the period this book was in its early gestation. Professor Margaret M. Wallace at John Jay College of Criminal Justice welcomed Sheldon to her laboratory course on forensic DNA analysis to watch her students go through all the steps in preparing a biological sample for a DNA profile and interpreting the output from a DNA analyzer.

  Tania Simoncelli would like to thank the ACLU for providing her with the opportunity to engage in national policy debates and initiatives that are central to the contents of this book. She is grateful in particular to the following people in the organization who supported this effort: Anthony Romero, Barry Steinhardt, Terrence Dougherty, Robert Perry, Michael Risher, Jay Stanley, Claire Giammaria, Noam Biale, Mary Bonventre, Chris Hansen, and Sandra Park. She also would like to thank Troy Duster for hosting her as a visiting scholar at the Institute for the History of the Production of Knowledge at New York University during 2008.

  Finally, we are greatly appreciative of our editorial team at Columbia University Press, Patrick Fitzgerald and Bridget Flannery-McCoy, for their support, patience, and guidance, and of the superb copyediting of Charles Eberline and John Donohue of Westchester Book Services.

  INTRODUCTION

  We have 30 crime scenes where we have found traces of her DNA, but we have no face. . . . It’s a huge mystery and it’s incredible that the suspect has managed to hide herself for so long.

  —Rainer Koeller, German police spokesman1

  On May 23, 1993, a 62-year-old woman was strangled to death in her home in Idar-Oberstein, Germany. The only clue that surfaced from the police investigation was a DNA sample obtained from a brightly colored teacup that was found on the woman’s kitchen table. An analysis of the DNA revealed that it had come from a woman.

  Eight years later a 61-year-old antiques dealer was strangled with garden twine in the southwestern city of Freiburg. DNA collected from items in the shop and the shop’s door handle was found to be identical with that of the 1993 teacup DNA. A few months later the woman’s DNA was found again, this time on a discarded heroin syringe.

  In 2007 a 22-year-old German policewoman was killed in the city of Heilbronn while she and her colleague were on a lunch break in their patrol car. Two people climbed into the back seat and shot the officers from behind, killing the woman and seriously injuring her partner. Once again, DNA traces taken from the vehicle matched that of the DNA collected from the 1993 murder scene.

  The murder of the young officer sparked one of the most extensive criminal investigations in German history. The more the police looked, the more DNA they found to match the “Phantom of Heilbronn,” as the woman was quickly dubbed. Her DNA was found on an abandoned biscuit at the site of a burglary, a gas cap of a stolen car, a bullet used in a “gypsy feud,” and beer bottles and a toy pistol found at the scenes of two robberies. In 2008 traces of her DNA appeared in an old car that belonged to an Iraqi suspect accused of killing three Georgian car dealers.

  By 2009 a person known only by her DNA and described by police as “Germany’s most dangerous woman”2 was wanted for at least 40 crimes in three countries (Germany, Austria, and France) that included six murders, several muggings, and dozens of break-ins and petty robberies. The German government deployed more than 100 police officers and prosecutors in three separate teams across Germany, backed by DNA analysis from the Bundeskriminalamt (BKA), Germany’s equivalent of the U.S. Federal Bureau of Investigation (FBI), and spent more than $18 million in tracking down the “woman without a face.” The chief inspector of one of the German teams claimed that he alone had traveled more than 37,000 miles across Europe in search of the cold-blooded murderer.3 Heilbronn police alone racked up 16,000 hours of overtime pursuing the culprit. A reward of 300,000 euros (approximately $400,000) was offered publicly for any help leading to her arrest. With seemingly nothing else to go on, police rounded up and collected DNA samples from more than 3,000 women in Germany, France, Belgium, and Italy—especially drug users and homeless women—in a “DNA dragnet.” The more the woman’s DNA surfaced at the scenes of crimes, the more the police assured the public that they were “closing in on her.” 4

  Then a curious thing happened. The woman’s DNA surfaced again, but this time even the most creative scenario could not explain its appearance. In this case investigators were attempting to establish the identity of a burned corp
se that had been found in 2002. They reexamined fingerprints from a male asylum seeker’s application to see whether a DNA sample could be lifted off the fingerprints and compared with that of the corpse. Thoroughly expecting any DNA found at all to be from a male source, they were shocked to find instead the DNA of the phantom woman.

  The explanation was simple enough, but surprising to police and many DNA analysts. The woman, assumed to be a cold-blooded serial murderer, junkie, and burglar, was none other than a perfectly innocent woman who happened to work in the factory in Austria where the swabs used for collecting DNA at crime scenes were fabricated. She was never physically present at a single one of the crimes for which she had become a suspect; her skin particles, sweat, saliva, or combinations thereof had merely contaminated a large number of swabs during production that were then used in DNA collection. Her DNA thus “appeared” in an endless number of DNA tests, sometimes alongside the DNA of other individuals. Those swabs were “sterilized” before use in collecting DNA samples, but sterilization does not destroy DNA (it only destroys the viability of bacteria, viruses, and fungi). The entire law-enforcement community in Germany had spent 15 years on a wild-goose chase, and meanwhile the actual criminals had, in most cases, gone scot free.

  On its face, this story seems perhaps nothing more than an extraordinary blunder, one we might dismiss with all its absurdity as an outlier that would never occur in most sophisticated pursuits of justice. But another way to look at it is to ask: What assumptions must have been operating in order for such an oversight to have occurred? How is it that an investigation as extensive as this one did not raise seriously the possibility of contamination as the source of the woman’s DNA? Why would investigators go to such lengths—in euros, man-hours, and DNA dragnets—to search for a suspect in the face of significant contradictory evidence? What does it take to believe that one woman could have been involved in such an absurdly disparate array of criminal activity, especially considering that she never once in 40 crimes was seen by a witness, or that she could have worked with different accomplices in those cases where others were involved (all of whom claimed when questioned that she did not exist)?