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Stop and Frisk -- and DNA Test?

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Taking DNA samples from people arrested, but not convicted of a crime, has the potential to make our already unfair justice system even less fair. Before we expand the preconviction DNA dragnet, we should think hard about what that means in a racially biased system. Currently, 26 states and federal law enforcement permit pre-conviction DNA collection. However, our recent national conversation about stop and frisk policies should make us cautious. African-Americans already constitute roughly 40 percent of the federal DNA database, the Combined DNA Index System (CODIS), reflecting racial disparities in convictions and sentences. Collecting DNA from people prior to conviction will likewise reflect the racial disparities in arrests that plague our justice system.

There is an increasing demand nationwide to archive DNA samples from not only convicted criminals, including misdemeanor offenders, but persons arrested for a crime. Advocates praise the ability of DNA to identify the guilty and exonerate the innocent. They cite cases of serial rapists, such as Anthony Dias in Washington, who might have been caught sooner, if only a DNA sample was available. Heroically, the Innocence Project used DNA testing to help exonerate James Bain, who had spent 35 years in prison, wrongfully convicted of kidnapping, burglary, and rape. Opponents, however, argue that collecting DNA violates the Fourth Amendment protection against unlawful search and seizure. Moreover, it is difficult to protect against unforeseen abuse of DNA profiles, even if the DNA evidence is destroyed. But there is another reason why taking DNA samples from the arrested poses an ethical challenge.

Racial profiling tactics, such as stop and frisk policies, unfairly increase arrests. Recently, the NYPD's stop and frisk policy has come under intense scrutiny by civil liberties unions, civil rights activists, and cultural critics. As the New York Civil Liberties Union (NYCLU) reported, in the first three months of 2012, the NYPD stopped 177,140 blacks and Latinos -- and only 18,387 whites. The NYCLU report reproduces the results of Ian Ayres' 2008 report on the LAPD. Even though the stop and frisk rate is higher for black and Latino populations than whites, the hit rate, or the rate at which contraband is found on a suspect, is actually lower. Yet, while the hit rate is lower, the absolute value of hits, and arrests, increases. Racial profiling creates criminals in the name of stopping them.

Taking DNA from persons arrested due to such unfair practices introduces a new chilling possibility. Unlike other forensic databases, as Helen Wallace of GeneWatch UK has noted, the DNA profiles of a person's relatives may be inferred statistically. In a racially biased justice system, this essentially results in the police surveillance of an entire race. This is a lesson we should learn from the UK's National DNA database, which is the world's oldest. By the same rationale as U.S. DNA database advocates, the UK instituted a policy to take pre-conviction DNA samples. By 2008, the UK House of Commons estimated that DNA had been archived of 27 percent of the entire black population, 42 percent of the male black population, and 77 percent of young black men. Comparatively, the database retained DNA from only 6 percent of the white population.

What happens when a criminal database overrepresents one population? Security officials deduce that this population constitutes a dangerous population in need of further surveillance. Sociologists Robin Williams and Paul Johnson call this effect a 'circuit of surveillance.' This is why we should not confuse the neutrality of DNA as a hereditary material with the neutrality of those who collect, process, and interpret it.

Some, such as Manhattan District Attorney Cyrus Vance suggest that DNA testing is color blind. This is wrong. In fact, technologies have been specifically designed to 'read' race from DNA for the purposes of forensics. Duana Fullwiley, a Professor of Anthropology at Stanford, has written on race, DNA, and forensics, specifically the use of DNAWitness to apprehend Derrick Todd Lee, an African-American man, for murder and rape in Louisiana in 2004. DNAWitness compares unknown crime scene samples with a panel of markers known as Ancestry Informative Markers (or AIMs) in order to narrow a suspect pool by continental ancestry. Far from Vance's claim that DNA testing technology is color blind, the extension of genetic ancestry testing into forensics is precisely the type of dragnet application that interests many forensic scientists. If blacks and Latinos are disproportionately arrested, then they will be disproportionately represented in the criminal DNA database -- and they will suffer the risk of false incrimination. Though many might object that DNA is extremely reliable, racial disparities in legal resources to challenge sophisticated scientific evidence cannot be minimized.

We should not expand our DNA databases to include people who have not been convicted of a crime. Clearly, the intentions of advocates are noble. However, our system is already deeply flawed. Michelle Alexander, author of The New Jim Crow, reminds us that more black men are incarcerated today than were enslaved in 1850. Loic Wacquant found that the rate of incarceration of blacks in the U.S. is even higher than the rate in South Africa during the anti-apartheid struggle -- and that was 10 years ago. Taking DNA from people who have not even been convicted has the potential to make this already unfair system even less fair.