Report

Racial Profiling and Genetic Privacy

Report examines the question of how we reconcile our desire for excellent police work with maintaining criminal investigation protocols that respect the rights of citizens.

Police sketches that prompted DNA sweeps by police in Charlottesville, VA and Baton Rouge, LA next to photos of the actual assailants. The composite sketches did not merit such police action. (Charlottesville Police Department and Lafayette Parish Sherriff’s Office and FBI)
Police sketches that prompted DNA sweeps by police in Charlottesville, VA and Baton Rouge, LA next to photos of the actual assailants. The composite sketches did not merit such police action. (Charlottesville Police Department and Lafayette Parish Sherriff’s Office and FBI)

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Racial profiling and genetic privacy are two related issues that together present a singular problem for policymakers: How do we reconcile our desire for excellent police work with maintaining criminal investigation protocols that respect the rights of citizens? Two recent criminal cases, one in Virginia and the other in Louisiana, encapsulate the problem.

Charlottesville, Virginia

Jeffery Johnson was grilling steaks for the Aberdeen Barn restaurant on the outskirts of Charlottesville, VA, in March 2004. It seemed like an ordinary night until the police came calling. The officer told Jeffery that he was a potential suspect in a series of rapes that had recently occurred in the area since 1997. The assailant had been identified as an African American. Jeffery Johnson is an African American.

What the officer wanted to do was to run a swab on the inside of Johnson’s cheek in order to check his DNA against the DNA from the crime scenes. One can only speculate what thoughts went through Jeffery Johnson’s mind at that moment. The steaks might burn. His boss might get mad and fire him. People might think he was a criminal. He might even be arrested—even though he was innocent.

It would certainly be understandable if he were very confused and felt a range of emotions from shame to anger to indignation. Should he go outside with the police or should he stand up to them? Even today, it generally isn’t such a good idea for an African American to cross a southern police officer. Jeffery Johnson decided to go outside and cooperate, as did 186 other young African American males in the small college town.

A month later, Police Chief Timothy J. Longo Sr. said that out of around 690 possible leads about 400 were quickly eliminated because their DNA samples were already in the state database or because they had been incarcerated when the rapes occurred. This left 197. Of these,187 agreed to the police swab-on-the-street operation. Ten did not.

One of these was University of Virginia graduate student Steven Turner, who twice has refused to be tested. His reason: “Because the suspect is Black, every Black man is a suspect. The more indiscriminate the search, the closer it is to discrimination. What are we going to do about this as a community?”

Mr. Turner asks the crucial question. As events unfolded in this case it turned out that the rapist didn’t really fit the profile that the police had in mind. The perpetrator was not young and single. He was not a college student. Instead, he was a married blue-collar worker with a family. It is true that he was African American, but he was not in the criminal database nor was he within the group chosen for DNA swabbing. It would seem that in this case the use of racial profiling was not effective in solving the crime.

Baton Rouge, Louisiana

In 2003, police in Baton Rouge, LA were investigating a serial killer of White women. The police collected samples from around 1,200 White men in a manhunt reminiscent of the police in Charlottesville. The round up of samples was not conclusive.

Then police turned to Tony Frudakis, a molecular biologist who thought he had discovered very subtle genetic markers for race. He took the samples from the crime scene and determined that the perpetrator was not White but Black. This changed the focus of the police’s investigation that was ultimately successful—even if the science behind the about-face by the Baton Rouge police is still in dispute.

In both cases, though, the broad sweeping collecting of DNA samples was not effective. Unless the country maintains a national DNA database—a position this paper will argue against—such moves seem ineffective. And since they imply human rights violations, these DNA tests should not be used as a criminal investigation procedure. Yet other uses of DNA, particularly when it is the focus of matching a person—already a suspect due to other primary factors—to crime scene evidence should certainly be permissible.

Both cases in Charlottesville and Baton Rouge, however, present dual questions of how much we should encourage or allow racial profiling in our criminal investigation procedures and what safeguards should be set in place regarding genetic privacy. This paper will address these two questions in detail in the pages that follow to provide policymakers with some clear philosophical guidelines now that police use of DNA as a forensic tool for criminal investigations is becoming more widespread.

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