Unethical intrusion: the disproportionate impact of law enforcement DNA sampling on minority populations.

• Author: Cox, Rachel

1. Introduction

   In 2009, the Maryland legislature enacted a statute that required law enforcement to take a DNA sample at the time of arrest from individuals charged with "a crime of violence or an attempt to commit a crime of violence," or "burglary or an attempt to commit burglary." (1) The Maryland statute required these DNA samples to be maintained in a statewide DNA database system, (2) and the samples would be destroyed only "if the charge does not result a conviction" or the conviction was later overturned. (3)

   Twenty-eight other states and the federal government have also enacted statutes authorizing or mandating the collection of DNA from individuals upon arrest. (4) The United States Supreme Court examined the constitutionality of this group of statutes under the Fourth Amendment (5) in Maryland v. King. (6) The Court found that the policy instituted by the Maryland statute did not violate the protections of the Fourth Amendment against unreasonable searches and seizures, holding that:

   When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. (7) Although such statutes are now constitutional, this note will conclude that such statutes are unethical due to the disproportionate impact on racial minorities that results from an arrestee DNA sampling policy. First, this note will examine state policies authorizing or mandating the collection of DNA samples upon arrest from a critical race theory perspective, and will argue that such law enforcement practices disproportionately impact and unjustly affect racial minorities. Second, this note will identify the potential negative effects that DNA sampling may have on the privacy of the individuals--in this case, a disproportionate number of minority individuals--who are sampled.

   Critical race theory involves examining the relationship between race and power, questioning socially accepted foundations such as traditional legal reasoning and neutral principles of constitutional law, (8) and engaging in activism to change the social organization that perpetuates racism. (9) Although critical race theory involves a variety of perspectives and does not have a single definition, there are several generally accepted propositions. (10) First, racism and the resulting inequality along race lines are recognized (11) as the ordinary, rather than exceptional, reaction of society to race. (12) Second, because racism advantages both elite and working-class whites, the majority of society lacks incentive to eradicate it. (13) Third, race is based on social construction rather than reality, meaning that it is a socially created distinction. (14) Last, society has a tendency to shift the way it racializes and stereotypes minority groups depending on its current needs. (15) On the basis of these tenets, the legal system has a propensity to disproportionately and unfairly impact racial minorities. Therefore, in examining DNA samples of arrestees from a critical race theory perspective, this note will examine the disproportionate negative impact of DNA sampling of arrestees on racial minorities.

   Because of the propensity of law enforcement to target minorities in law enforcement procedures, combined with the potential risk of unethical use of the wealth of information that DNA provides, states should take care to protect the DNA of their citizens from seizure at the time of arrest. From a critical race theory perspective, states should enact laws (16) prohibiting law enforcement from sampling arrestees' DNA at the time of arrest in order to reduce the disproportionate negative effect of these policies on their minority constituents' privacy.

2. BACKGROUND

   1. DNA Sampling

      Since 1994, the FBI has maintained a Combined DNA Index System ("CODIS") containing DNA profiles (17) in order to match DNA samples obtained by law enforcement with DNA profiles of convicted felons. (18) Currently, all felons convicted of federal crimes and certain state crimes (19) must submit DNA samples to law enforcement (20) for placement in DNA databases.

      The purpose of such databases is to aid law enforcement in the resolution of crimes in which DNA evidence is present and to dissuade convicted felons from committing crimes in the future (21) through the recognition that law enforcement possesses their DNA information and can link any future crime scene DNA samples to their identity. In 2007, the FBI reported that the CODIS system aided over 47,000 investigations, (22) and the most recent information indicates that CODIS now contains "about 10 million offender profiles and 1.1 million arrestee profiles." (23)

      CODIS DNA profiles are composed of thirteen core loci (24) containing what is believed to be non-coding DNA. (25) DNA profiling produces a profile that can identify specific individuals by examining specific markers at the thirteen core loci, comparing genetic variations within those markers, and combining the various genetic variations into a comprehensive profile. (26)

      According to the FBI, the non-coding, or "junk," DNA that is found within the thirteen core loci and is used in developing DNA profiles is not currently known to "include personal information such as medical susceptibilities and behavioral traits," (27) and only reveals generic and impersonal medical information "no more intimate than the particular blood serum enzyme that an individual happens to have, the pattern of blood vessels in the retina of the eye, or the whorls and ridges in a fingerprint." (28)

      Among other states, Maryland extended its DNA database system by providing for DNA sampling at the time of arrest of individuals arrested for certain crimes within the state. (29) The Maryland statute providing for DNA collection upon arrest requires certain arrestees to provide buccal swabs (30) and, consistent with FBI standards, (31) creates a DNA profile out of thirteen loci that are presumed to contain non-coding DNA. (32) This DNA is tested and used for several purposes, including for use in criminal investigations, and the statute provides that the state may prepare and store DNA records in order to compare those profiles with profiles in national and other state databases. (33)

   2. Maryland v. King

      A challenge to the constitutionality of this Maryland statute came from Alonzo Jay King, Jr. King was arrested for assault, and the DNA sample taken when he was booked for this arrest was the sole evidence used to convict him of an unrelated rape. (34)

      King's position, supported by organizations such as the American Civil Liberties Union (ACLU), (35) was that the sampling of his DNA upon the arrest for his assault charge was an unconstitutional search because "it was not authorized by a warrant or based on some level of individualized suspicion," and did not fall within one of the rare "exceptions to the requirements of a warrant or individualized suspicion," such as the search of parolees, the "special needs" doctrine, or the search-incident-to-arrest doctrine. (36)

      The United States Supreme Court determined that the Maryland statute authorizing the sampling of arrestees' DNA during the subsequent booking procedure was reasonable under the Fourth Amendment. (37) It held that the procedure was indistinguishable from procedures like fingerprinting and photographing, (38) and served the legitimate government interest of allowing "law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody." (39)

3. Discussion

   In order to protect minority citizens from disproportionate intrusions on their privacy, states should enact statutes prohibiting DNA sampling of arrestees. This note will first argue that because of factors such as the prevalence of racial profiling, the ability of law enforcement to stop and frisk on the basis of pretext, and the inaccuracy of cross-racial witness identification, minorities are arrested in greater proportions than non-minorities and may be mistakenly arrested in greater proportions than non-minorities. Therefore, DNA sampling that occurs at the time of arrest will disproportionately affect minorities. Second, this note will argue that under critical race theory, a policy which causes such a disproportionate impact on minority populations is unethical because that disproportionate impact has real consequences given the risk of the use of genetic information for purposes other than identification.

   1. Propensity of Law Enforcement to Target Minorities

      Law enforcement has a propensity to target minority populations as a result of several factors, including unconscious stereotyping that tends to associate race with crime, (40) overt racial profiling, (41) and even the way crime is defined by the United States legal system. (42)

      National statistics consistently show that minorities are disproportionately affected by the criminal justice system, both as victims and perpetrators, through the use of "stop and frisks," (43) arrests, imprisonment, and capital punishment. (44)

      For example, in 2009, African Americans accounted for less than 13% of the U.S. population, but 28.3% of arrests. (45) A 2004 report prepared for the ACLU of Southern California found that the rate at which police stop African Americans for investigation is 3,400 stops higher, and the Hispanic stop rate 350 stops higher, than the white stop rate per 10,000 residents. (46) The report found that relative to stopped whites, stopped African Americans are 127% more likely, and stopped Hispanics are 43% more likely to be frisked. (47) It also found that relative to stopped whites, stopped African Americans are 76% more likely, and stopped Hispanics are 16% more likely to be searched. (48) Last...