Is Familial DNA Testing Targeting Minority Communities?

Some experts believe that communities of color will be unfairly targeted with the widespread use of familial DNA testing to capture suspects.

The American Civil Liberties Union is concerned with the increased use of Familial DNA Testing in the criminal justice system.  In July the ALCU started the process to challenge the California law that requires police to collect the DNA of all suspected felons.  Michael Risher an American Civil Liberties Union lawyer told the Ninth U.S. Circuit Court of Appeals in San Francisco court in July that the government should not be allowed to take the “genetic blueprint” of someone who hasn’t been convicted of a crime.  One-third of the 300,000 Californians arrested on felony charges each year are never convicted.  This does not stop the police from talking a DNA sample at this time.

Much interest in Familial DNA testing has been raised, since that testing process was successfully used in the apprehension of the Alleged Grim Sleeper serial killer.  Many Prosecutors are arguing that Familial DNA testing should be more widely used.

The technique not only raises issues of constitutionality and rights to privacy as claimed by the American Civil Liberties Union.  It also raises the question of fairness.

While in a traditional DNA forensic analysis, police take a DNA sample that has been recovered from a crime scene. That DNA is analyzed (a profile is created) and then the profile is compared to a database of DNA taken from convicted felons.  This search is looking for an exact match between a convicted felons’ DNA profile and the profile from the forensic sample.

Familial DNA looks not for an exact match but for partial matches.  They both use a database of convicted criminals DNA profile.  In Familial DNA testing if there are partial matches, then there is an assumption that the forensic sample may be from somebody who is related to the convicted felon whose DNA was a partial match. All the police have to do then is look at the person’s family (including obtaining DNA samples) and see if one of them might be the perpetrator.

The issue that the American Civil Liberties Union is that because Familial DNA testing relies on partial matching they are not completely accurate and that they widen the number of people who could fall under suspicion and be investigated by police.

The American Civil Liberties Union believes that because the criminal justice system disproportionately arrests and convicts people of color, they are therefore over-represented in the DNA databases used to conduct these test, leading to communities of color being adversely affected by familial searches which extend beyond the offender and include the offender’s family.

Attorney Daniel Grimm wrote in an article that, “the databank system is not racially neutral.  Over time this scenario risks constructing stigmatic myths about ethnicity and criminal conduct that can be devastating to those affected.”  The arcicle titled “The Demographics of Genetic Surveillance: Familial DNA Testing and the Hispanic Community” was published by the Columbia Law Review. Grimm goes on to point out that due in part to population growth, high arrest and conviction rates the Hispanic community will be affected more by Familial DNA testing than any other racial group.

While the ACLU worries about the over representation of minority communities professor Erin Murphy, with the University of California, Berkeley School of Law, is concerned with the possible contamination of samples, and intentionally malfeasant analysts.  According to Erin Murphy Familial DNA testing, relies not just on the genetic information being accurate, it also on a DNA analyst’s ability to reason, processes of elimination, subjective judgment calls and inferences.

The only fair solution is to have a universal DNA database, where all members of society have their DNA logged, or to to restrict familial searching to extremely serious cases where all other leads have been exhausted, according to Jennifer Mnookin a professor of law at UCLA.

In the Grim Sleeper case, California Attorney General Jerry Brown only allowed Familial DNA searching after all other investigative leads had been exhausted. Investigators did not knock on doors for all the possible matches.  Instead they refined their list of suspects based on additional DNA tests and circumstantial evidence.  Such as evidence that revealed the suspect lived in the area where the murders took place or that the suspect could have committed the crimes over the two decades which gave insight as to his possible age. In addition prior to going public, investigators obtained an exact DNA match between their Familial search suspect and the forensic evidence.

What worries organization like the ACLU and many others is that widespread use of Familial DNA testing is that there will be a lack of oversight and law enforcement will not take the same strong precautions  that were taken in the Grim Sleeper case.  According to reports, the Denver District Attorney has already used familial DNA testing in less serious crimes, such as car thefts and burglaries. Familial DNA testing is something that is in use and probably won’t be going away.  It is now up to the courts to determine how widely used the process becomes.