Page 179 - Privacy in a Cyber Age Policy and Practice

DNA SEARCHES: A LIBERAL COMMUNITARIAN APPROACH 167

suspect and a DNA sample collected from the crime scene, they may refine
their DNA dragnet by requesting DNA samples only from members of
the racial group matching that physical description. (An intensive analy-
sis of a DNA sample may even estimate a suspect’s race when a physical
description is unavailable, although such analysis raises further ethical
concerns and its reliability may not meet “legal and scientific standards
63
for trial admissibility.” ) While such practice may constitute an efficient
use of police resources, it is also a form of racial profiling, and has raised
controversy as such. 64
Another aspect of racial profiling relates to the disparities in the data
banking of DNA profiles. Howard Cooke pointed to racial disparities in
convicted offender DNA databases as early as 1993 and voiced opposition
to their use on these grounds. 65
Michael Purtill asserts that the disproportionate impact along racial and
ethnic lines may be severe enough to violate the Equal Protection Clause
66
of the Fourteenth Amendment. Diane C. Barca has identified the dispro-
portionate impact of partial match searches on people of color as a promi-
nent concern advanced by civil libertarians and experts on the subject.
Whatever racial discrimination exists in the criminal justice system
(and elsewhere) should indeed be eliminated. To proceed requires major
changes to the law, public education, job training, and housing, among
other major societal changes. However, the fact that racial discrimination
persists does not by itself agitate against forensic DNA usages, because
they do not cause discrimination any more than any other police tools. The
same basic disparity exists in the number of people of color who are finger-
printed, stopped and frisked, arrested on minor grounds, and so on. Thus,
even if an end was made to all DNA usages, racial discrimination would
not be significantly diminished. To reiterate, the disproportional profiling
of minorities is mainly a result of discrimination but not one of its causes.
True, if critics could show that forensic DNA usages inflicted substan-
tially greater harm than other policing methods, that the burden of DNA
usages falls disproportionately on people of color would suggest that DNA
usages should be limited. For instance if evidence would validate the argu-
ment that the larger number of minority DNA in the databases than that
of white people would lead to claims that predispositions to crime are
genetically rooted. However no such evidence seems to be available.
Most important, as we shall see, DNA usages provide a surprisingly
favorable communitarian balance compared to other law enforcement tools.
Moreover, because people of color disproportionately suffer from crime,
any measures that would weaken law enforcement, especially measures as
substantial as stopping or greatly limiting DNA usages, would harm these
communities more significantly than white ones.