DNA and distrust.

AuthorAbrams, Kerry
PositionAbstract through II. Comparing Approaches Towards Genetic Identity B. Identification Testing: DNA and Criminal Law 3. Federal Support for DNA Databanks, p. 757-785

ABSTRACT

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person's identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identification testing. The U.S. Supreme Court in Maryland v. King, for example, held that entering arrestee DNA in databanks does not implicate substantial Fourth Amendment concerns, since police do not test for genetic predispositions "not relevant to identity. " We argue that policy implications of genetic testing laws cannot be so neatly demarcated. For example, federal welfare laws require states to use DNA to establish paternity to collect child support from "deadbeat dads, " which may be relevant to identity, but also creates potentially destabilizing effects on families. We explore how genetic testing has been regulated across a variety of fields. We identify two dominant modes of regulatory action dealing with genetics: data-driven and ethics-based. Data-driven legislation is ostensibly focused on short-term benefits of gathering a population's genetic information. Ethics-based legislation, in contrast, is concerned with long-term consequences, such as effects on privacy. We particularly critique data-driven legislation, and we argue that judges, legislators, and scholars should focus squarely on the individual and government interests at stake. We set out a list of five factors that legal actors should consider when considering genetics regulation: (1) equality, (2) accuracy, (3) privacy, (4) finality, and (5) federalism. In particular, equality concerns permeate the short history of DNA regulation. In each of the areas explored, comparatively disadvantaged groups such as arrestees, convicts, juveniles, noncitizens, and welfare recipients have received the most intrusive regulation and collection of their genetic evidence, while comparatively privileged persons benefit from enhanced genetic privacy. We conclude that the regulation of genetic evidence deserves far more careful legal scrutiny, since the ways that genetic evidence is deployed can profoundly affect constitutional rights and the structure of legal and social institutions.

INTRODUCTION

DNA testing, widely available for over twenty-five years, has revolutionized the way local, state, and federal governments understand identity by making it inexpensive to obtain a person's genetic profile and link people to biological evidence and to each other. With the benefit of different types of DNA testing, the state can now say with greater certainty whether a particular suspect was the culprit of a crime or whether a particular person is the biological parent of a child. DNA testing has been embraced with enthusiasm by courts, legislatures, and agencies, state and federal, across areas of law ranging from criminal law, employment law, family law, and health law because it is easy to obtain and offers apparent certainty. This Article critically assesses these developments, focusing on the seemingly unobtrusive collection of genetic data, and argues that heightened legal scrutiny of genetic regulation is needed.

As with any new technology, genetic testing has captured the imagination of scholars. Early on, some scholars predicted that genetic tests would supplant traditional legal tests. Many legal standards, particularly constitutional tests, are broad and vague, while DNA tests have the appealing ability to seemingly make evidentiary determinations certain. In 1992, Rochelle Cooper Dreyfuss and Dorothy Nelkin called the trend to reduce questions to genetics "genetics essentialism." (1) More recently, scholars have asked whether there is a "genetics exceptionalism" in which policymakers over-privilege the importance or uses of genetic evidence. (2) Still others have predicted that

DNA testing will reinvigorate the eugenics movement, as imagined in films such as Gattaca. (3)

"Genetic testing," however, is not a legal subject. As many scholars have observed about other new areas of law, such as "cyberlaw," the law of genetic testing is a version of "the law of the horse." (4) It is not a unified field but the analysis of a particular technology in relation to a cluster of existing legal fields. DNA testing has not led to universal genetics essentialism, genetics exceptionalism, or a new eugenics; instead, its uses have been inconsistent and variable depending on the social and legal context in which DNA testing is adopted. Rather than a story of genetics overtaking the law and rendering complex legal questions deceptively simple, DNA testing has itself been caught up in preexisting regulatory relationships between federal and state and local governments, privacy advocates and scientific researchers, law enforcement and social services, each with competing goals. And, as Gaia Bernstein has astutely observed, "technological innovation can both create and bring to the forefront legal values that for years lurked in the shadows of legal discourse." (5)

These preexisting regulatory contexts often result in legal structures that reflect the concerns and perspectives of elites at the expense of other members of the political community. The amount of attention given to genetic privacy, we argue, depends in large part on the context in which a genetic regulation is initially conceived. Equality concerns permeate the short history of DNA regulation. In each of the areas we explore in this Article, comparatively disadvantaged groups such as arrestees, convicts, juveniles, noncitizens, and welfare recipients, have received the most intrusive regulation and collection of their genetic evidence. In contrast, more privileged persons are not subjected to government DNA collection and may instead benefit from legislation protecting their genetic privacy.

As John Hart Ely famously argued in his classic book, Democracy and Distrust: A Theory of Judicial Review, the legislative process, through its enactment of the majority will, can lead to discrimination against the politically powerless and block the channels of political change. (6) According to Ely, when courts attempt to intervene, they often mistake specific problems "as isolated pockets of concern," slotting them into "familiar pigeonholes." (7) These seemingly separate issues, however, may form a "unity," or a larger problem in which "uncontrollable discretion" risks harm to undervalued individual and minority rights. (8)

Such, we argue, is the story of genetic regulation. Just as Professor Ely observed of the death penalty that "the system is constructed so that 'people like us' run no realistic risk of such punishment," (9) in genetic regulation, legislatures and judges have been far more careful and forward-thinking in instances where they, or people of their social class, are likely to be subject to regulation. This has led to some "pigeonholes" of genetic regulation being treated very differently from others.

Consider, for example, a case decided using the "pigeonhole" of Fourth Amendment privacy rights in criminal law. In Maryland v. King, the U.S. Supreme Court was faced with the question of whether taking and analyzing a cheek swab of an arrestee's DNA is "like fingerprinting and photographing, a legitimate police booking procedure." (10) In his majority opinion, Justice Kennedy concluded that it was constitutionally reasonable for the state to take DNA evidence because of the "negligible" physical intrusion and the limited use of determining whether the individual was associated with the crime scene or victim. (11) A DNA test, according to the Court, was simply not very different from a fingerprint or a photograph. The Court understood the issue to be simple expansion of Fourth Amendment jurisprudence, not a new foray into issues of genetic privacy.

Even the majority opinion, however, revealed, perhaps unintentionally, that cabining off DNA evidence into the criminal law pigeonhole might not be as simple as it sounds. Although the opinion emphasized how current DNA testing of arrestees examines "noncoding parts of the DNA that do not reveal the genetic traits of the arrestee," it also acknowledged that "science can always progress further, and those progressions may have Fourth Amendment consequences," particularly if they seek to determine "an arrestee's predisposition for a particular disease or other hereditary factors not relevant to identity." (12) This application of DNA testing may not be so different from predicting future behavior or outcomes, when DNA databases are used both in the present, but also to potentially link a person to future crimes. (13) The line between identification testing and predictive testing is not always so clear.

Federal lawmakers clearly believe such bright lines can be drawn. For example, Congress passed the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits changing the terms of health insurance coverage based on genetic information and forbids employment discrimination based on genetic information. (14) As one federal court has put it, "[t]he basic intent of GINA is to prohibit employers from making a 'predictive assessment concerning an individual's propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in [a] family member.'" (15) In contrast, few such privacy protections exist in the welfare context, in which Congress encourages states to conduct potentially intrusive paternity testing to promote child support collection. (16)

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