Selective Arrests, an Ever-Expanding DNA Forensic Database, and the Specter of an Early - Twenty-First-Century Equivalent of Phrenology

We can all celebrate the use of DNA technology to free more than 140 wrongly convicted prisoners, some of whom were on death row, and others who served decades for rapes they did not commit. Similarly, when law enforcement can score a cold hit and catch a rapist because his DNA is on file, there are reasons to applaud. The use of this technology in high-profile cases has led to a full set of arguments for widening the net of the DNA database, so that more and more samples can be included, ranging from those from convicted felons to those from arrestees--from those of suspects to those of the whole_population. There are currently about 1.5 million profiles in the national database, but in early 2002, the attorney general of the United States ordered the FBI to generate a plan that is supposed to expand this to 50 million profiles. What more objective way could there be of exculpating the innocent and convicting the guilty? However, such an argument conflates three quite distinct strategies and practices of the criminal justice system that need to be separated and analyzed for their disparate impact on different populations. The first is the use of DNA in post conviction cases to determine whether there has been a wrongful conviction, the kind of situation that would help to free the innocent. The second is the collection of DNA from suspects or arrestees in pretrial circumstances to increase the DNA database, which in turn is designed to help law enforcement determine whether there are matches between the DNA samples of those suspects or arrestees and tissue samples left at some unsolved crime: the net to catch the guilty. The third is the advocacy of increasing the collection of DNA from a wider and wider band of felons and misdemeanants in the post conviction period, so that there is a record of their DNA profile on file in the event of recidivism. Much like the current situation in which police can stop a driver and determine whether he or she has outstanding warrants or traffic ticket violations that have piled up, the new technology would permit authorities to see if the DNA of the person stopped and arrested matches the DNA on file for someone at an unsolved crime scene. This is not just hypothetical. In early 2000 the New York City Police Department began a pilot project experimenting with portable DNA laboratories. The police take a buccal swab--some saliva from inside the cheek--of a person stopped for a traffic or other violation and place it on a chip the size of a credit card. They then put this chip through a