Academic journal article Duke Law Journal

When Privacy Fails: Invoking a Property Paradigm to Mandate the Destruction of DNA Samples

Academic journal article Duke Law Journal

When Privacy Fails: Invoking a Property Paradigm to Mandate the Destruction of DNA Samples

Article excerpt

INTRODUCTION

The maxim "innocent until proven guilty" has assumed significance in legal scholarship, colloquial conversation, and the media; indeed, the concept resonates with American society. Its prominence in popular and legal culture reflects society's concern for balancing the constitutional guarantee of liberty with the government's duty to secure the well-being of its citizens. The maxim recognizes the inherent collisions of constitutional law and criminal law, of rights and responsibilities, and of privacy and protection. In the very nature of these ideas is the notion that Americans respect--and arguably require--laws that offer broad protection to society without eclipsing individual privacy. Recent scientific advances have afforded deoxyribonucleic acid (DNA) a preeminent role in providing such protections; with the advent of cataloged genetic "fingerprints" that can be matched to cellular material left at crime scenes, the modern American criminal justice system has become increasingly efficient and significantly more accurate. (1) Yet current law, which fails to mandate the destruction of voluntarily provided DNA samples, falls well short of providing genetic privacy to innocent individuals. (2)

Progress in medical science has rendered possible both the collection of DNA on a physically noninvasive basis (3) and the subsequent creation of identifying DNA profiles, which are contained in massive databases? Although the use of profiles has enhanced the success of criminal investigations, (5) database opponents have voiced concerns about genetic privacy (6) and the constitutional ramifications of DNA sampling and profiling under the First, (7) Fourth, (8) Fifth, (9) Sixth, (10) Eighth, (11) Ninth, (12) and Fourteenth (13) Amendments. Their admonitions have recently assumed new significance, as law enforcement organizations have begun obtaining, analyzing, and retaining DNA samples through large-scale dragnets. (14) DNA dragnets prompt unique concerns because they target individuals who lack a criminal history or a distinct connection to the crime under investigation. (15) Consistent with the nature of dragnets, the vast majority of participants have no connection to the criminal activity. (16)

Thus, law enforcement agencies increasingly find themselves in possession of DNA samples from innocent individuals after convicting persons responsible for crimes. (17) The utility of these samples, however, does not subside with the resolution of a criminal investigation; rather, the information contained in the samples remains attractive to an array of individuals, corporations, and agencies outside the law enforcement context. It is well recognized that DNA contains information regarding familial lineage, predisposition to disease, and even the propensity for aggressive, addictive, or criminal behaviors. (18) Access to genetic information could prove valuable to--and engender discrimination from--insurance companies and employers, (19) resulting in denied policies or opportunities for individuals with enhanced susceptibility to mental illness, physical disease, or even less-desirable personality traits. Conceivably, the release of sensitive genetic information could have far-reaching effects, impacting placement decisions by adoption agencies, corrupting jury verdicts, and allowing prospective spouses to select mates based on perceived genetic advantage. (20) At this extreme, such biological determinism could induce "geneticide": on the sole basis of individuals' biological inheritance, society could evict "substandard" individuals from a range of traditions and programs despite uncertainty that an undesired trait would ever manifest itself.

Existing jurisprudence and legislation are insufficient to protect this sensitive personal information. Proposed solutions to genetic discrimination include mechanisms that would limit access to the information; however, these suggestions prove inadequate. …

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