ABSTRACT

DNA identification databases have helped police to solve cases that had baffled them for decades and to catch previously convicted offenders who commit new crimes. Examples abound. In Virginia, there was the rapist who blew out a candle before attacking his victim. The candle had his saliva on it. There was the burglar who wore a pair of socks on his hands and left no fingerprints. The discarded socks contained skin cells. There was the bank robber who dropped his ski mask. All were identified by checking the DNA profiles in these traces against the state’s database of convicted felons.

Yet, these databases have proved intensely controversial. One recurrent objection plays on the fear of research into genes and behavior. Advocacy groups and individuals have trumpeted the prospect of research into a "crime gene" or pointed to the sordid history of biological theories of racial inferiority as grounds for resisting or reversing DNA database initiatives.

This article asks whether these concerns are valid objections to the DNA database laws now on the books. To do so, it addresses three questions: (1) Would a reasonable geneticist want to look for "crime genes" in law-enforcement DNA repositories? (2) Would it be legal for the custodians of existing databases to allow anyone to conduct such research? (3) Are the arguments against such research ultimately convincing? Part I of the article outlines some of the difficulties of behavioral genetics research and the limitations and biases in the law enforcement databases and sample repositories. It concludes that talk of a "crime gene" is scientifically naive and that the databases themselves would be of little or no value in behavioral genetics research. However, because associational studies with the DNA samples might be of some scientific interest, the fears expressed in response to the growth of criminal DNA databases cannot be so easily dismissed.

To answer the second question, Part II surveys state and federal database legislation. It shows that several previous studies have overstated the extent to which medical research with convicted-offender samples is permitted under existing law. Many of the pertinent statutes, although not drafted with precision, preclude such research. Nevertheless, even clear statutory provisions are subject to amendment through the legislative process. Inasmuch as the constitution, as currently interpreted, offers rather weak protection for informational privacy, the policy question of allowing such behavioral genetics research with the samples in the law enforcement repositories must be confronted.

As to this final question, Part III identifies and assesses some of the bioethical and social arguments against allowing such research. These include concerns about the possible misuse of or misunderstandings about the fruits of the research and the lack of consent on the part of the "donors" of the DNA samples. The issue is related to another important policy issue — whether the DNA samples should be retained at all — as well as the first question of the research value of the law enforcement databases and repositories. I conclude that the arguments for categorically precluding behavioral genetics research with the samples are not conclusive, and I suggest that if samples are to be retained (as they currently are), then an independent body with appropriate expertise should evaluate proposals for research projects on a case-by-case basis.