The Myth of Fingerprints
by Simon A. Cole
In the Fall of 2004, I appeared on a local public affairs television program as a “guest expert” to discuss California's Proposition 69, a ballot initiative which mandated the inclusion of DNA collected from persons arrested, but not convicted, for crimes, in the state's DNA database. The show followed a typical ideological debate format, with two representatives each for the right and left and the “guest expert” in the middle. But the format didn't work all that well in this case because all of the political talking heads were against Prop 69. Indeed, when I — also against Prop 69 — ventured that a universal DNA database would actually be less objectionable (on equality grounds) than an arrestee database, I was attacked from both sides. I was also able to publish an editorial opposing Prop 69 in the Orange County Register, an unabashedly conservative newspaper that serves a region of the country, widely viewed as the birthplace of the contemporary neoconservative movement that also editorialized against the proposition.1 In the worlds of punditry and policy, it seemed everyone across the political spectrum was against the arrestee database.
Everyone, that is, except the voters. Prop 69 passed by a wide margin and is now law in California. Unless an ACLU legal challenge to the new law is successful, beginning in 2009, California will be authorized to enter the DNA of around 425,000 arrestees into its database each year.2 This is despite the fact that the law exacerbates the existing backlog of untested DNA evidence recovered from crime scenes.3
The passage of Prop 69 in California, the fourth state to mandate such an arrestee database, following in the footsteps of the United Kingdom, which has included non-convicted suspects in its database for several years, seems to presage a relentless expansion of criminal DNA databases.4 (For more on the U.K.'s DNA database, please see "Permanently Detained" by Helen Wallace) If arrestee databases are acceptable to a wide margin of California voters, can the rest of the country be far behind? A historical look at the way this issue was resolved for criminal identification databases based on an earlier biometric technology — fingerprinting — strongly suggests that an arrestee DNA database is, unfortunately, what our future holds.
The expansion of DNA databases is one of the rare issues capable of generating united opposition across the political spectrum. Ideologues of both the right and the left are sufficiently suspicious of state power to be mistrustful of expanding DNA databases, if perhaps for slightly different reasons. But this suspicion among intellectuals does not translate into grassroots opposition. I would suggest that the principal reason that voters do not oppose expanded criminal DNA databases is that they do not think of themselves or their loved ones as subjects of the database. Criminal identification databases are for “criminals,” people most voters are apt to think of as “other” than themselves.
Historically, this is precisely the bargain that Americans struck with regard to fingerprint databases more than half a century ago. Americans accepted the recording and retention of the fingerprints of arrestees and other groups singled out for special attention, such as immigrants, military personnel, and civil servants, but they drew the line when proposals were made for including ordinary, “law-abiding” citizens in fingerprint databases.5
Absent concern about their own genetic privacy, voters find the inexorable utilitarian logic of database expansion difficult to resist; after all, it is undeniable that expansion of an effective (or even an ineffective) DNA database will lead to the apprehension of some number of offenders, and potentially earlier in their criminal careers than would be possible otherwise. Thus, voters favor expansion of DNA databases because they assume that they apply to people other than themselves.
Thus far, the primary argument mustered in opposition to expanding criminal DNA databases has been “genetic exceptionalism.”6 This argument holds that genetic information is fundamentally different from the kinds of information traditionally stored in law enforcement databases to identify persons: photographs, physical descriptions, measurements and fingerprints. Genetic profiles are sometimes portrayed as uniquely dangerous information, containing important, properly private information about health, ancestry and behavioral propensities. Typically, the fingerprint is used as a rhetorical foil for the gene. The fingerprint is portrayed as consisting of purely random information, encoding nothing about health, ancestry or behavior, and being “useful only as a form of information.”7
One problem with this argument is that fingerprint patterns are not, in any strict sense, “purer” or “emptier” biomarkers than genes are. Indeed, when Western scientists' attention was first drawn to fingerprint patterns in the late 19th century, they approached them just as behavioral geneticists approach genes today: they recorded fingerprint patterns in prisons and in asylums and took samples from the disparate ethnic groups of the world. It was no accident that Francis Galton, who founded the eugenics movement, also developed methods for classifying fingerprint patterns.8 Galton hoped that fingerprint patterns would prove the visible manifestation through which each individual's heredity might be “read.”
Galton's “regret,” his failure to find the key to the code of heredity in fingerprint patterns, has been confused with the notion that fingerprint patterns actually contain no information pertinent to health, ancestry or behavior.9 But other researchers found rough correlations between fingerprint pattern type and ethnicity, heredity and even some health factors. These correlations, especially the ethnic ones, have proven robust and still hold up today.10 As with any correlation, they are not determinative; one cannot predict ethnicity from fingerprint pattern, but fingerprint pattern types do appear with different frequencies among different “ethnic groups” (as defined by researchers). True, not much has been done with these correlations. But the point is that the situation with fingerprint patterns and genes is fundamentally the same — correlations. It is not that fingerprint pattern correlations do not exist; rather, it no longer scientifically acceptable to investigate them — unlike genetic correlations with so called ethnicity. In short, the perceived “emptiness” and harmlessness of fingerprint patterns is a social achievement, not a natural fact.
Nonetheless, the “neutrality” of fingerprint information is widely believed, and the genetic exceptionalism argument might be forgiven for making good rhetorical use of that widespread belief. But by offering genetic exceptionalist arguments, opponents, in their zeal to arouse anxiety about DNA databases, tend to foster an equally, if not more, insidious foe: genetic determinism. Genetic exceptionalism perpetuates the popular notion that DNA is a “blueprint” of the individual, in the attempt to generate concern about storage of that blueprint by the state.11 Such arguments, however effective, are problematic because, in the long run, the implied genetic determinism is at least as dangerous as DNA databases themselves.12 Indeed, it is precisely the combination of DNA databases with the perpetuation of genetic determinism constitutes the real danger.13
The genetic exceptionalism argument (i.e. that genes are special because DNA contains untold amounts of information) could be neutralized by the destruction of the original DNA samples and retention of only simplified genetic profiles by the state. If the government agreed to destroy the original samples, it would be plausible to argue that the retained genetic information is almost certainly innocuous. It might be argued that getting the government to agree to the destruction of the original samples would itself be a significant victory, but that would take the wind out of opposition to DNA databases if that opposition is founded solely upon genetic exceptionalism.
However, genetic exceptionalism does not seem to have proven an effective strategy for mobilizing opposition to DNA database expansion. DNA databases have been expanded relentlessly with few or no setbacks, despite most people's unease about having their own genetic information in a state-sponsored database.
On the face of it, a universal database would appear to be less discriminatory than an arrestee database, or even a convict database. Another appeal of such proposals is that a universal database, if taken seriously, would force the members of the public to debate the scope of DNA databases with their own genetic information, rather than other people's, in mind. A true public debate over a universal DNA database, therefore, should rapidly expose whether or not the public feels comfortable with entrusting the state with their genetic information.
By removing the veil of “criminality,” a universal database, though completely impractical at this time, would expose the public's distrust of state-sponsored DNA databases. Indeed, it is possible that even legislators, let alone the public at large, would not promote DNA databases if they expected their own DNA to be included. For example, police officers have seemed quite reluctant to have their DNA included in “elimination” databases, which would allow crime-scene samples to be identified as deriving from officers securing the scene.14
Given all these factors, it seems most likely that the debate over the scope of criminal DNA databases will end up with the arrestee database, just as this happened for fingerprint databases half a century ago. The political power of anti-crime messages, combined with Americans' willingness to legislate away the rights of “others,” would seem to make both possibilities, contraction of the database to convicts only and its expansion of the database to all citizens, equally unlikely. Unfortunately, that makes the arrestee database the perfect political solution, by which legislators and voters can feel tough on crime without fearing that they are sacrificing their own rights.
This is a shame because an arrestee database is the worst possible solution to the scope-of-database problem. Reasonable arguments can be made for including convicted offenders, especially offenders convicted of violent crimes, who may be viewed as having diminished privacy rights. A reasonable argument can even be made for the universal database on equality grounds. But there is nothing equitable or principled about an arrestee database. Rather, there are several clear inequities to such a database.
The first concerns the possibility of error. Shortly after the legitimation of fingerprints as credible markers of identity, criminal justice system’s actors quickly “black-boxed” fingerprint examiners' conclusions of identity, treating such conclusions as unassailable facts. As such, it became nearly impossible to question forensic fingerprint judgments. It took nearly a century to decide that such overconfidence was unfounded.15 This realization was prompted in part by the development of DNA evidence itself, which, whatever its faults, was more scientifically robust and transparent than forensic fingerprint identification. But, rather than treating this as a cautionary tale about vesting blind faith in any identification technology, this has widely been read as a story about the replacement of a flawed technology with a better one.
In fact, we can already discern the same process of “black-boxing” surrounding DNA that was performed a century ago for fingerprinting.16 However, errors will occur, just as they have with fingerprints, and the unfortunate victims of such errors will face a justice system heavily invested in the “infallibility” of DNA technology.17 Indeed, expanding DNA databases may contribute to errors simply by increasing the workload of crime laboratories' DNA operations. Production pressure has recently emerged as a potentially significant cause of errors in forensic DNA profiling.18
The second problem is perhaps more subtle. It has to do with the way in which criminal identification databases have historically functioned to turn arrests and convictions, which are imbued with the messiness and discriminatory practices of real life, into seemingly objective and neutral information. But when arrest and conviction practices are discriminatory, this discrimination is, in effect, “laundered” by the criminal identification database. The selective arrest or biased conviction becomes simply “the criminal record” of particular individual.
Although early 20th century scientists never found the “criminal” fingerprint pattern, law enforcement officials did manage to use fingerprints to identify what they defined as criminality. They simply used criminal records based on fingerprints to identify recidivists. The recidivist became the “born criminal” whom scientists hoped to identify in bodily markers like fingerprint patterns. But, as criminal identification databases expanded, recidivism devolved toward ever-pettier crimes. As these ever-pettier offenses are drawn within the scope of the databases, it was the pettier offenders who become “recidivists” as measured by the database. It is the pettier offenders, after all, who serve short sentences or no sentences and thus are at large and eligible for another arrest incident. Serious offenders are safely in custody, largely protected from acquiring another offense for the time being. Thus, a focus on recidivism through a criminal identification database is likely to target mostly petty offenders.
The same might easily be the case with criminal DNA databases. Criminologists need not find a “crime gene” to identify the individuals included in the database as repeat offenders and therefore inherently “criminal.” Individuals in the database will become repeat offenders simply by virtue of their inclusion in the database. This tendency may be exacerbated by the police imperative to clear crimes by linking similar offenses to an available suspect.19 Indeed, the DNA database is now being reconceived as “DNA intelligence database” as those sorts of prospective uses — linking together of crimes as related before identifying the offender — are developed.20 Who gets included in the database will be determined by policing and arrest patterns, which are far from equitable in terms of race, class or geography.21 The next step will be to devise genetic determinist explanations of crime based on the population of criminal DNA databases.22
Is public acceptance of arrestee databases inevitable? New developments in the area of familial searching hold some modest promise for breaking the chain of reasoning in which Americans legislate away their own rights in the guise of punishing “others.” Law enforcement agencies are making increasing use of “low-stringency searching,” in which databases are searched for close, though not exact, matches and the relatives of closely matching individuals are then investigated as suspects.23 The upshot of such practices is that each individual included in the database effectively includes his or her close blood relatives as well. Such law enforcement tactics may offend Americans' sense of fair play and prompt a backlash, much in the way a universal database might. Some scholars have concluded that familial searching will sufficiently exacerbate racial disparities in criminal identification databases to render them unacceptable.24 Alternatively, familial searching might provoke voters' anxiety. I have experimented with this tactic by arguing that suburban middle-class voters might be able to assume that they could make it through life without being arrested, but could they make the assumption about their teenage offspring? Could this concern be the one that finally prompts the public to check the seemingly inevitable expansion of criminal DNA databases?
Simon A. Cole is Associate Professor of Criminology, Law & Society at the University of California, Irvine. He is the author of Suspect Identities: A History of Fingerprinting and Criminal Identification (Harvard University Press, 2001), and he is a member of the American Judicature Society Commission on Forensic Science & Public Policy.
References
1. Simon A. Cole, "A Prop Too Far: Troubling Initiative Would Expand State's DNA Database Beyond Felons," Orange County Register, Oct. 27 2004; Editorial, "DNA Database Plan Too Hard on Innocent: Measure Lacks Sufficient Protection of Privacy," Orange County Register, Sept. 29 2004; Lisa McGirr, Suburban Warriors: The Origins of the New American Right (Princeton: Princeton University Press, 2001).
2. Tania Simoncelli and Helen Wallace, "Expanding Databases, Declining Liberties," GeneWatch, Jan.-Feb. 2006.
3. Jason Dearen, "Understaffed Police Department Can't Follow up Sex Crime Leads," Inside Bay Area, July 6 2006; Editorial, "Underfunded DNA Mandate: Backlogged Labs Demonstrate the Trouble with Legislating by Ballot," Los Angeles Times, Sept. 15 2006.
4.Robin Williams and Paul Johnson, "Inclusiveness, Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations," Journal of Law, Medicine and Ethics 33 (2005).
5. Simon A. Cole, "Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate," in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, Mass.: MIT Press, 2004).
6. George Annas, ""Genetic Privacy"," in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, Mass.: MIT Press, 2004), 136.
7. Barry Steinhardt, "Privacy and Forensic DNA Data Banks," in The Technology of Justice: The Use of DNA in the Criminal Justice System, ed. David Lazer (Cambridge, Mass.: MIT Press, 2004), 173. See also Tania Simoncelli, "Dangerous Excursions: The Case against Expanding Forensic DNA Databases to Innocent Persons," Journal of Law, Medicine and Ethics 34, no. 2 (2006); Tania Simoncelli and Barry Steinhardt, "California's Proposition 69: A Dangerous Precedent for Criminal DNA Databases," Journal of Law, Medicine and Ethics 33 (2005); Simoncelli and Wallace, "Expanding Databases, Declining Liberties." GeneWatch, Jan-Feb. 2006
8. Garland Allen, "The Hydra and Its Many Heads," GeneWatch, Sept-Oct. 2006.
9. Paul Rabinow, "Galton's Regret: Of Types and Individuals," in DNA on Trial: Genetic Identification and Criminal Justice, ed. Paul R. Billings (Plainview, NY: Cold Spring Harbor Laboratory Press, 1992).
10. Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge, Mass.: Harvard University Press, 2001), 97-118.
11. Thomas Murray, "Genetic Exceptionalism and 'Future Diaries': Is Genetic Information Different from Other Medical Information," in Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, ed. Mark A. Rothstein (New Haven: Yale University Press, 1997).
12. Garland Allen, "The Hydra and Its Many Heads." GeneWatch, Sept-Oct. 2006.; Ruth Hubbard, "Race and Genes," GeneWatch, Aug. 2005.
13. Troy Duster, "Explaining Differential Trust of DNA Forensic Technology: Grounded Assessment or Inexplicable Paranoia," Journal of Law, Medicine and Ethics 34, no. 2 (2006); Troy Duster, "Selective Arrests, an Ever-Expanding DNA Forensic Database, and the Specter of an Early-Twenty-First-Century Equivalent of Phrenology," in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, Mass.: MIT Press, 2004).
14. Barry Scheck, Proceedings of the National Commission on the Future of DNA Evidence, Sept. 27, 1999, available at http://www.ojp.usdoj.gov/nij/topics/forensics/events/dnamtgtrans7/trans-l.html.
15. Simon A. Cole, "More Than Zero: Accounting for Error in Latent Fingerprint Identification," Journal of Criminal Law and Criminology 95 (2005); Robert Epstein, "Fingerprints Meet Daubert: The Myth of Fingerprint "Science" Is Revealed," Southern California Law Review 75 (2002); David M. Siegel et al., "The Reliability of Latent Print Individualization: Brief of Amici Curiae Submitted on Behalf of Scientists and Scholars by the New England Innocence Project, Commonwealth V. Patterson," Criminal Law Bulletin 42, no. 1 (2006); David A. Stoney, "Fingerprint Identification: Scientific Status," in Modern Scientific Evidence: The Law and Science of Expert Testimony, ed. David L. Faigman, et al. (St. Paul: West, 1997); Sandy L. Zabell, "Fingerprint Evidence," Journal of Law and Policy 13, no. 1 (2005).
16. Michael Lynch et al., Truth Machine: The Contentious History of DNA Fingerprinting (Chicago: University of Chicago Press, forthcoming); William C. Thompson, "Tarnish on the 'Gold Standard: Understanding Recent Problems in Forensic DNA Testing," The Champion, Jan./Feb. 2006.
17. Simon A. Cole, "More Than Zero: Accounting for Error in Latent Fingerprint Identification."Journal of Criminal Law and Criminology 95 (2005)
18. William C. Thompson, "Tarnish on the 'Gold Standard: Understanding Recent Problems in Forensic DNA Testing." The Champion, Jan./Feb. 2006.
19. Troy Duster, "Comparative Perspectives and Competing Explanations: Taking on the Newly Configured Reductionist Challenge to Sociology," American Sociological Review. Volume 71, Number 1, February 2006, pp. 1-15(15).
20. Simon Walsh and John Buckleton, "DNA Intelligence Databases," in Forensic DNA Evidence Interpretation, ed. John Buckleton, Christopher M. Triggs, and Simon J. Walsh (Boca Raton, Fla.: CRC Press, 2005).
21. Michael K. Brown et al., Whitewashing Race: The Myth of a Color-Blind Society (Berkeley: University of California Press, 2003); David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: New Press, 1999).
22. Troy Duster, "Comparative Perspectives and Competing Explanations: Taking on the Newly Configured Reductionist Challenge to Sociology." American Sociological Review. Volume 71, Number 1, February 2006, pp. 1-15(15).
23. Frederick R. Bieber, Charles H. Brenner, and David Lazer, "Finding Criminals through DNA of Their Relatives," Science 312, no. 5778 (2006); Henry T. Greely et al., "Family Ties: The Use of DNA Offender Databases to Catch Offenders' Kin," Journal of Law, Medicine and Ethics 34, no. 2 (2006).
24. Henry T. Greely et al., "Family Ties: The Use of DNA Offender Databases to Catch Offenders' Kin." Journal of Law, Medicine and Ethics 34, no. 2 (2006).
