DNA identification databases have made it possible to apprehend the perpetrators of crimes ranging from auto theft and petty burglary (1) to serial rapes and murders. (2) Yet the laws establishing these databases have been the subject of persistent litigation and repeated criticism. One recurrent refrain plays on the fear of research into genes and behavior. The public has been told that
There are no limits on who uses [the tissue sample]. Even if [a
law enforcement agency] decides they're only going to use it for
identification purposes, there's no restriction on their turning
it over to somebody else who will use it to look for a crime
Other advocacy groups and individuals have trumpeted the prospect of research seeking a "crime gene" (4) or have pointed to the sordid history of biological theories of racial inferiority (5) as grounds for resisting or reversing DNA database initiatives. (6)
This article asks whether these concerns are valid objections to the DNA database laws now on the books. Part II considers the possible value of the databases for research. 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. The DNA information in these databases is limited to a small number of DNA base-pair variations that have been selected because they are useful for identification. These particular DNA variations are unlikely to reveal anything significant about any genes, let alone genes that might affect behavior. However, the DNA samples that are on file could be reanalyzed at more informative sites, and statistical studies of possible correlations between the new data and behavioral traits might be of some scientific interest. As such, the fears about the law-enforcement databases contributing to genetic research into crime cannot be so easily dismissed.
Part III surveys state and federal database legislation. It shows that several previous studies have overlooked or understated the restrictions on medical or behavioral genetics research with convicted-offender samples. 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 IV 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 DNA samples. This issue also raises the related policy issue of whether the DNA samples should be retained at all--as well as the question addressed in Part II of the research value of DNA databases and repositories. In these regards, the article concludes that an absolute prohibition on behavioral genetics research is not necessary. Instead, it proposes 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.
THE SCIENTIFIC "IS": OFFENDER DNA DATABASES AND REPOSITORIES AS A USEFUL SOURCE OF BEHAVIORAL GENETICS DATA
Is it true that geneticists, psychiatrists, or other biomedical researchers are itching to get their hands on the government's information in order to discover a "crime gene"? Stated this baldly, the concern is more rhetorical than real. (7) However, the possibility that stored DNA samples collected from convicted-offender databases might be of interest to some researchers should not be summarily dismissed. …