I was struck by an op-ed in the NYT this morning. It’s by a Yale Law Student named Michael Seringhaus. Mr. Seringhaus was reacting to a proposal to include the DNA profiles of all arrestees, whether or not convicted, in the national database of such profiles. Mr. Seringhaus suggests that we should not just take these DNA profiles from arrestees but from everyone. His logic, though, strikes me as odd. His principal concern seems to be that collecting this information only for arrestees will cause a disproportionate representation of Blacks in the database. Let’s assume this is so, as it already is of the fingerprint database, also compiled for anyone booked for any offense (as well as for a gazillion other reasons). What I don’t get is why this is a bad thing, if, as Mr. Seringhaus claims, it would be a good thing for us all to included in the database.
As far as I can tell, being in the database has three consequences:
1. You are more likely to be caught for a crime you did commit.
2. You are less likely to be accused of a crime you did not commit.
3. “Big Brother” has a way to track your whereabouts in addition to the tools he already has.
Now, if you are concerned about Big Brother, then having a universal database is a bad thing. Mr. Seringhaus does not seem concerned with that aspect of privacy. He does explain that DNA profiles do not reveal personal genetic information. They record info about “junk DNA” that can be used for identification but not to determine anything about the subject’s operative genome. With this aspect of “privacy” out of the way, Mr. Seringhaus seems unconcerned about the general issue of the Government being able to track our comings and goings any more than it already can. And he may be right – the chances of leaving no footprints as we go about our daily lives of charging and EZ-passing are quite small. Still, it’s nice to think that we could stay off the grid if we wanted to go to the trouble.
That leaves consequences ##1 and 2. Although Blacks are more likely to be arrested than Whites, Mr. Seringhaus has not made the claim that they are more likely to be unjustly arrested. I’m not talking about traffic stops for Driving While Black, or even being rounded up with the usual suspects. Those things aren’t arrests and so do not trigger DNA collection under the current proposal. I’m talking about “Turn around, you’re under arrest for ….” Maybe such arrests are disproportionately skewed racially, but, as I say, Mr. Seringhaus has made no such claim. He seems to think that a database made up of people arrested with good reason (whether or not the case is ultimately dropped) is a bad thing because more Blacks than Whites are arrested even with cause. I don't see, however, precisely what consequence of being in the database offends Mr. Seringhaus on this score.
As regards consequence #1, Mr. Seringhaus’s argument boils down to this: We should not collect DNA profiles of arrestees, because that would cause the percentage of Whites who get away with crimes to be greater than the percentage of Blacks who do. I agree that if the system were designed to achieve that result, it would be bad. But whatever the merits of “disparate impact” analysis in the world of employment discrimination, it seems to me inapplicable where the only downside of being in the disfavored group under a facially neutral policy is that you may not get away with a crime. Remember, this is not racial profiling, where anyone in the database is stopped or hauled in or questioned about crimes on account of being in the database. This is about getting caught for a crime one actually did commit.
And this is where consequence #2 comes in. Leaving Big Brother aside for a moment, the more likely one is to be suspected of a crime one did not commit, the more likely one is to want his or her DNA in the database. If there is DNA evidence at a crime scene, being among the usual suspects becomes less onerous if DNA has already ruled you out. Thus, for anyone arrested unjustly, the DNA profile will make a reoccurrence less likely rather than more likely. Again, getting away with a crime becomes harder; but being wrongly accused becomes less likely. That strikes me as a good deal. (Maybe Whites should complain that the disproportionate arrest of Blacks makes Whites more likely to be wrongly accused, as their exonerating DNA is not on file. Sounds dumb? Can you articulate a reason that doesn’t make Mr. Seringhaus’s claims evaporate?)
Mr. Seringhaus raises another objection to expanding the DNA database to include all arrestees, and that’s the growing practice of using DNA near-matches to identify family members of people in the database for suspicion. He seems to be concerned about false positives – results that identify people who are related to someone in the database but not, as it turns out, related to the perpetrator. He says such false positives “cripple” the technique, but he does not say how. The possibility of a false positive turning up someone who might otherwise “look good” for the crime seems pretty remote. And even then, one swab and the confusion is cleared up.
If near-misses are used to identify suspects, consequence #2 also operates at the family level: if I’m in the database, and the DNA at the crime scene does not look at all like mine – which will be the case in an overwhelming majority of cases – then my whole family’s off the hook, too. That’s bad because…?
Mr. Seringhaus says that the near-miss approach effectively “includes” in the database people who have never been arrested, and that’s a bad thing because of the racial aspect. Again, he makes no practical arguments. I would think any over-suspected demographic would cheer the exonerating implications of the technique.
I just don’t see the difference between DNA profiles and fingerprints. It seems to me that whoever gets fingerprinted for whatever reason should also give DNA. The two biomarkers serve the same purpose – conclusive identification – and DNA just seems to me a better mousetrap, a belt under the suspenders.
And a universal database – any universal database – gives me the creeps. As William of Occam might have counseled, such things should not be multiplied beyond necessity.