Page 189 - Privacy in a Cyber Age Policy and Practice

DNA SEARCHES: A LIBERAL COMMUNITARIAN APPROACH 177

should have the right to retest this evidence; one solution is to reduce
the cost of DNA testing so that offering retesting to many would be more
feasible.
Moreover, clearing innocent suspects and exonerating those wrongly
convicted has an important public safety component. A study of individu-
als exonerated through the use of DNA analysis found that several actual
perpetrators committed additional crimes due to the state’s conviction of
an innocent individual in their stead. “Among the actual perpetrators iden-
tified in [the study’s] sample, 37 were convicted of a total of 77 other violent
crimes during the time that an innocent person served for their crime.” 130
Effective forensic DNA usage thus helps prevent such individuals from
escaping justice thanks to police error or an innocent’s bad luck.

D. Conclusion

This article has examined forensic DNA usages from a liberal communi-
tarian approach, which holds that both individual rights and the common
good have the same fundamental normative standing and that neither
trumps the other, per se. Thus, there is a need to determine, for each public
policy and each police method, whether the prevailing balance between
the two ought to be adapted to better serve the common good or expand
individual rights. (In many situations, in which these come into conflict.)
These adaptations must be repeated over time to maintain a just and
effective balance, following changes in historical conditions and technological
developments; for example, the 2011 attacks on the American homeland or
the rise of the Internet.
By approaching forensic DNA usages in this context, this chapter
suggests that the intrusions involved with these DNA usages are smaller
than critics often fear because DNA samples that do contain sensitive infor-
mation are not included in the national databases, while the DNA profiles
that are included in these databases contain very little genetic information.
Next, the article finds that DNA usages contribute very little to racial
profiling, because they mainly reflect institutional racism rather than cause
it. Racial discrimination should be overcome, but forgoing DNA usages
would contribute very little to this goal. Moreover, the courts’ conclusions
that DNA sample collection and the creation of DNA profiles do not vio-
late the right to be free from self-incrimination seem compelling. If DNA
usages were to be banned, most other forensic tools, including the collec-
tion of other forms of material evidence, would likewise have to be banned.
Additionally, while the intrusions involved are limited and could be quite
readily limited further through the implementation of recommendations