Families and forensic DNA profiles.
Subject: DNA testing (Laws, regulations and rules)
Administrative agencies (Laws, regulations and rules)
Author: Dresser, Rebecca
Pub Date: 05/01/2011
Publication: Name: The Hastings Center Report Publisher: Hastings Center Audience: Academic; Professional Format: Magazine/Journal Subject: Biological sciences; Health Copyright: COPYRIGHT 2011 Hastings Center ISSN: 0093-0334
Issue: Date: May-June, 2011 Source Volume: 41 Source Issue: 3
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation
Geographic: Geographic Scope: United States Geographic Code: 1USA United States
Accession Number: 268403512
Full Text: Law enforcement officials often turn to DNA identification methods to detect--and rule out--possible offenders. Every state operates its own database of convicted offenders' DNA profiles; some states store profiles of arrested people, too. The Federal Bureau of Investigation maintains a national database of profiles submitted by laboratories across the country.

A few years ago, officials came up with a new way to use DNA profiles in forensic identification. Ordinary searches require an exact match between DNA found at a crime scene and a forensic DNA profile. A partial match means that the profiled individual should not be considered a suspect. But partial matches create another possibility: the crime scene DNA may come from a relative of the individual whose profile is in the database.

The United Kingdom has used partial matches to identify unknown offenders in several high-profile cases, and the technique is gaining traction in the United States. The 2010 identification of a suspected serial killer could accelerate this trend.

The "Grim Sleeper"

Last summer, a familial DNA search led police to a man believed to have killed at least ten women in the Los Angeles area. The killings occurred between 1985 and 2007. (Initially, police thought the killer had been inactive for part of that time, and this gave rise to the "Grim Sleeper" epithet.) Prosecutors have charged Lonnie David Franklin, Jr., with the murders.

Before the familial search, efforts to trace DNA found at the crime scenes had been unsuccessful. Franklin's DNA profile was not in the forensic database. Although he had previously been convicted of possessing stolen property, his convictions occurred before California started collecting DNA from people who had committed that offense.

The familial DNA search found a partial match between DNA recovered from the victim's bodies and DNA from an offender whose profile was in the forensic database. The police put together a list of that offender's male relatives, focusing on the ones who lived nearby and were old enough to have committed the murders. This led them to the offender's father, Lonnie David Franklin, Jr. They began tracking Franklin's movements and eventually were able to retrieve his discarded food and utensils from a restaurant. The DNA on those items matched DNA samples from the murder scenes. (1)

California is one of a relatively small group of states with a published policy on partial DNA matches. A 2008 directive from the state attorney general's office authorizes forensic laboratories to report partial matches to police and to conduct DNA searches specifically aimed at identifying an unknown perpetrator's relatives. (2) Maryland has gone in the other direction, enacting a law that prohibits familial DNA searches. Many states lack clear rules on these practices; in others, officials have adopted internal laboratory rules without public disclosure and debate. The FBI's current policy gives states authority over whether to permit partial match searching and reporting. (3)

Benefits and Harms

Franklin's arrest dramatically illustrates the benefits that familial DNA identification can produce. If his guilt is established, California's familial search will have removed a dangerous killer from the streets and enabled society to punish that killer. Besides helping law enforcement officials apprehend more criminals, familial identification could deter others from future criminal activity. And familial DNA identification could protect innocent people from wrongful arrest and conviction. (4)

On the other side of the equation are the potential harms produced by familial identification. The approach raises several family privacy concerns. The genetic information recorded in forensic databases consists of short DNA stretches with no known role in determining a person's disease susceptibility or behavioral characteristics. But the actual biological samples taken from crime scenes, suspects, and relatives contain much more DNA. Few states explicitly prohibit sample analysis that could reveal information about a person's genetic traits and predispositions. Familial searches can also uncover mistaken beliefs about biological relatedness. Because many states lack clear rules addressing these matters, there is a possibility that law enforcement officials will improperly discover, and disclose, important personal information about families.

Other types of intrusions are likely as well. Police officers pursuing genetic leads will interview relatives of individuals who are partial matches to crime scene DNA, and they will request samples from the relatives. They will engage in surveillance and surreptitious DNA collection, as they did in the Franklin case. Officers will seek information about the relatives from coworkers and neighbors. These actions could have a good result, as they apparently did in the Grim Sleeper case. But innocent people will be targeted in such investigations, too, and they will be targeted purely because they happen to be related to someone whose DNA is in the forensic database.

In the United States, the harms inflicted by familial DNA identification will have a disproportionate impact on African Americans and Latinos. These groups are overrepresented in forensic DNA databases because they are overrepresented in the population of convicted and arrested individuals whose information is included in those databases. Most observers believe that racial and ethnic bias is at least partially responsible for the disproportionate arrest and conviction rates. And as law professor Sonia Suter puts it, "Familial searching threatens to compound these problems and exacerbate racial disparities in the criminal justice system even further." (5) African American and Latino families will bear the brunt of the intrusions associated with familial DNA identification.

These are serious concerns, but they must be considered in the larger context of criminal investigation practices. Police engaged in traditional criminal investigation may interview, observe, and even interrogate a suspect's relatives. Familial DNA identification certainly adds to the potential intrusions, but the technique could also protect relatives of innocent suspects from the intrusions that accompany traditional police investigations. Moreover, the concerns about disproportionate impact must be weighed against the benefits that familial DNA identification could produce for members of socially disadvantaged groups. (6) Members of these groups are often crime victims; indeed, all of Franklin's alleged victims were African American. After he was arrested, victims' families and community advocates expressed great relief and appreciation that a suspect had been identified.

Maximizing Benefits, Minimizing Harms

Given its apparent value in solving high-profile criminal cases like Franklin's, law enforcement officials will probably remain enthusiastic about familial DNA identification. Though the approach could face future constitutional challenges, there is a good chance that it will survive such challenges. In previous challenges to forensic DNA identification, courts have ruled against claims that it involves unreasonable searches and seizures prohibited by the Fourth Amendment. Family identification raises distinct constitutional issues, however, and it's possible that courts might object to certain features of the approach. (7)

In the absence of constitutional barriers, legislators and criminal justice officials will determine what policies govern familial DNA identification. The goal should be to maximize the benefits and minimize the harms of this approach. Scholars recommend several policy actions to achieve this goal.

One is for authorities to adopt strict scientific standards that minimize the number of false positives in partial match searches. This would prevent individuals in the DNA database from being erroneously targeted as relatives of an unknown offender, which would in turn shield their relatives from unwarranted intrusions. Another recommendation is to limit the technique's use to investigations involving the most serious crimes. Policy-makers could also require forensic laboratories to destroy genetic samples linked to exonerated suspects, and they could prohibit laboratories from conducting genetic analyses that y field information related to a person's health and behavior. They could prohibit law enforcement officials from disclosing information that will contradict family beliefs about their biological relatedness, too. Last, policy-makers could require police departments to study the effectiveness of familial identification over time, to determine its actual value in solving crimes.

Familial DNA identification's disproportionate impact on African Americans and Latinos remains a serious problem. Some scholars are so disturbed by this problem that they endorse a radical remedy: a forensic DNA database containing genetic profiles of everyone in the country. (8) Such a drastic step would eliminate the need for familial DNA identification, but it would expose everyone to significant privacy intrusions. Widespread support for this step seems unlikely in the United States, where liberty and privacy are so highly valued. In the meantime, however, familial DNA identification could exacerbate racial inequities in the law enforcement system.

Acknowledgments

I am grateful to Sonia Suter for comments on an earlier draft of this column.

(1.) For information about the case, see M. Dolan, J. Rubin, and M. Landsberg, "DNA Leads to Arrest in Grim Sleeper Killings," Los Angeles Times, July 8, 2010; "Grim Sleeper," Wikipedia, http://en.wikipedia.org/wiki/Grim_Sleeper (accessed November 30, 2010).

(2.) California Department of Justice, "DNA Partial Match (Crime Scene DNA Profile to Offender) Policy," Information Bulletin No. 2008-BFS-01, http://ag.ca.gov/cms_attachments/press/pdfs/n1548_08-bfs-01.pdf.

(3.) See N. Ram, "DNA Confidential: State Law Enforcement Policies for Genetic Databases Lack Transparency," http://scienceprogress.org/2009/11/dna-confidential.

(4.) See S. Suter, "All in the Family: Privacy and DNA Familial Searching," Harvard Journal of Law and Technology 3 (2010): 309-99, at 372-73.

(5.) Ibid., 370.

(6.) See H. Greely et al., "Family Ties: The Use of DNA Offender Databases to Catch Offenders' Kin," Journal of Law, Medicine and Ethics 34 (2006): 248-62.

(7.) Suter, "All in the Family," 352-62.

(8.) See D. Kaye and M. Smith, "DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage," Wisconsin Law Review (2003): 413-59.
Gale Copyright: Copyright 2011 Gale, Cengage Learning. All rights reserved.