by Paul R. Billings

DNA is a hardy molecule. It has been recovered from mummies thousands of years old. Generation after generation can be marked by its content. 

Crime and punishment, on the other hand, are limited in time and scope. Measured justice is meted out to those found guilty. Though stigma and discrimination often haunt the ex-con and even those simply accused, the same rights and freedoms that protect the unconvicted return to those who have "done their time." But what happens when you introduce DNA methods created in research laboratories into our system of policing and prosecution? The result seems to be some justice, some confusion, and a new balance point for justice's scales. 

Irene Kennedy was brutally murdered last month at Francis William Bird Park in Walpole. We all wish for the perpetrator to be brought to justice. But DNA will not make that wish come true. In fact, genetic identification will always be more effective at excluding suspects than finding them. If the DNA sample linked to the crime is not from the victim, we can guess it comes from the murderer. But it is not from the suspect being held, Edmund Burke. Though circumstantial evidence may suggest otherwise, the DNA findings indicate that Burke is not the criminal. While society still cries for justice, Burke ought to go home. 

William Bratton, former Boston police commissioner, thinks he reversed decades of increasing violent crime in New York City by applying the "broken windows" approach; no incident was too small, no suspect too petty to send out NYPD's men in blue. While detailed attention to business may be good management and reassuring to customers, when applied to policing, does it really do more than crowd jails with innocent suspects and prisons with small-time criminals? Did violent crime rates drop because of the better policing, the lockup of large sections of our neighborhoods, or changes in the drug use that fueled so much larceny? 

The answer is important, since the New York police, buried by an avalanche of extraneous information, now want DNA to dig them out. Mayor Giuliani has called for genetic typing of anyone accused of a crime. A suspect class will be created, and the taint of their DNA may be hard to shake. I may have left some spit or a few hair follicles someplace where a crime is later committed. How likely am I to convince the police, prosecutor, or jury that I was not the criminal though my DNA was there? Will my innocence increasingly depend on careful managing of my shed DNA? 

Our system of justice continues its efforts to balance the power of genetics with our right to be left alone. A recently nullifed Massachusetts law forced individuals convicted of any of 33 crimes to submit, at their own expense, samples of their blood to a DNA data bank. DNA identification profiles from prisoners, probationers, and ex-convicts were to be compared against biological evidence found at crime sites, based on the assumption that a person convicted of one crime is likely to commit another. Forty-seven other states have established similar DNA data banks, granting state officials unrestricted access to personal genetic information. 

The Massachusetts law set no limits on the purposes for which the samples could be used or how long they could be kept. It authorized law enforcement officers to use force to collect the specimens. The law also stated that the samples could be used for research, a practice prohibited by the Nuremberg Code. Consent of the donors was not required, nor was there any obligation to notify them if their DNA had been used for research or its results. The genetic samples and information drawn from them could haunt such individuals long after they had paid their debt to society. 

Judge Isaac Borenstein ruled that the law authorizing this data bank violated the Fourth Amendment, which protects Americans from unreasonable searches and seizures. 

Critical to the determination of a "reasonable" search and seizure is the establishment of "individualized suspicion." Just as the police must provide specified information before obtaining a warrant to search a suspect's house, the judge's decision affirmed the need to establish individualized suspicion before forcing a person to submit to a "genetic search" of his or her DNA. Membership in a suspect class - the ex-con population, for example - is not enough evidence to justify personal searches or forced inclusion in DNA dragnets, Judge Borenstein argued. 

That's a bitter pill for victims and their families, but he is right. 

There are legitimate uses of DNA identification in specific criminal investigations. But if we allow government to violate privacy rights based on membership in a suspect class, the same reasoning could be used to justify forcible DNA collection from other groups with higher rates of criminal activity, such as homeless people or victims of childhood abuse. 

No person should be subject to unfettered government-sponsored bioinvasion. Those who believe that criminal recidivism will be reduced and justice better served by unlimited use of genetic typing and DNA banks have not learned the critical lesson that DNA is not destiny.

Printed in the Boston Globe, 14 January 1999

© 1999 Boston Globe

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