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Philip K. Dick’s vision of a future in which people are arrested for crimes they haven’t yet committed is so plausible that researchers at Stanford sat down to talk about it. The takeaway was simple: DNA profiling is changing the face of law enforcement, and the potential for abuse is growing.
A presentation last week at the school’s Center for Biomedical Ethics opened with a clip from the 2002 film Minority Report in which Tom Cruise and Colin Farrell wax philosophical about the nature of cause and effect and predetermination.
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In the movie, adapted from a 1956 short story by Dick, mutant clairvoyants floating in a hot tub relay glimpses of future murders to a “pre-crime” police division. In real life, we are creeping into the early stages of seeking similar psychic assurances through genetic profiling.
“We already do what’s called predictive policing or hotspot policing, which is based on statistics of where certain crimes happen,” said Colleen Berryessa, program manager for Stanford’s Center for Integration of Research on Genetics and Ethics. “Now, we’re getting into looking at the behaviors of individuals to predict whether they might commit a violent act, and genetics is part of that. It’s far removed from pre-crime, but they are definitely steps in that direction.”
The possibilities of genetic profiling are pretty spooky in that they undermine basic notions of morality, will power and individual responsibility. Taken to its extreme, the idea of a society steeped in genealogical gospel invites comparisons to another film, Gattaca, in which drops of blood slot people into certain social castes from birth.
Taking that a step further into notions of crime-fighting, exciting or frightening as they may sound, pre-crime would totally upend our established order of criminal justice, which is punitive in nature.
An obvious starting point when considering the potential of pre-crime is the rise of DNA databases. According to Interpol, 54 countries had invested in DNA databases in 2009. The number has grown since then, as has the scope of what those databases collect.
One of the most ambitious endeavors is happening in the United Arab Emirates, which began amassing a central DNA database of its 5.5 million citizens, including the native Bedouins. Started in 2006, it would be one of the the largest DNA databases on the planet.
In 2010, the UK passed the Crime and Security Act, allowing cops to swab the cheeks of convicted criminals and add the samples to a DNA database containing millions of profiles. UK authorities had initially allowed for indefinite retention of DNA information until two people acquitted of crimes and who didn’t want their genetic data to be kept on record brought their case to the European Court of Human Rights and won.
The largest DNA database on Earth is the FBI’s CODIS cache, which holds genetic information for about 11 million people suspected or convicted of crimes, according to the AP. Last year, the Supreme Court upheld a ruling allowing law enforcement agencies to extract DNA—no warrant necessary—from anyone who has been arrested. The federal gene bank is only going to grow.
The rationale behind building these databases is that gene identifiers will facilitate speedier and more accurate justice through forensic science. In the US, DNA has been wielded to exonerate dozens of men convicted of rape and murder.
Currently, they function like elaborate fingerprinting systems. But it’s easy to imagine authorities looking for other ways to squeeze answers from genetics. It has occurred to some US lawmakers to push for data analysis that could illuminate trends in the data. If research connected a certain genetic characteristic to a certain type of sex offender, using that information to suss out other potential sex offenders would be a no-brainer.
We are building the blocks toward that Minority Report, Gattaca, science-fiction aspect.
“It wouldn’t be a radical extension [of preventative law enforcement] in the future,” Berryessa said. But it would be cause for some major ethical concerns.
Already, authorities have been phenotyping crime scene samples to try and get a head start on identifying perpetrators by their physical characteristics. It’s a slippery slope because we can only extract vague indicators, like a person’s ethnicity. (Unless we’re talking about red hair—that one is easy.)
As University of Leeds criminal law professor Carole McCartney put it in a 2010 paper, “It will have to be determined just how helpful it may be to say to an investigator, ‘The suspect may be Caribbean.’”
A common perception is that DNA is a kind of silver bullet in crime-fighting—that it doesn’t lie, can’t be faked or manipulated, and even that it can account for specific behaviors. People tend to “put a lot of stock in the idea that genetic identity and origins can explain how or where a person ends up,” Berryessa said.
Researchers call that blind faith in forensic science the “CSI effect,” in reference to the primetime TV series that presented an imperfect science as infallible crime magic to millions of American viewers. It’s crucial to distinguish objective scientific analysis of DNA from the subjective process of how that DNA was collected. For example, a sweep of a hotel room where there was a murder could potentially turn up samples of everyone who has been in the room, not just the killer.
“Juries no longer need to be convinced of the accuracy or reliability of DNA evidence,” McCartney wrote. “Indeed, the concern is now that juries may be far too easily persuaded by DNA or may even demand it before they will convict.”
On the flip side, defense attorneys are increasingly relying on genetics to explain away a person’s crimes.
“There’s a lot of scapegoating with horrendous sexual crimes or mass shootings,” Berryessa said. “When people look for explanations, genetics is one of the first places they look.”
Predictive policing has allowed law enforcement to use a data-driven approach to resource allocation. The big question is how DNA database may be used in the future.
Juries aren’t the only ones whose opinions lean in the direction in which the DNA points. A 2012 study from the University of Utah shows that judges are also susceptible. When presented with evidence that the actions of a defendant diagnosed with psychopathy were rooted in a “biomechanical cause,” judges were less likely to find the person culpable.
“Content analysis of judges’ reasoning indicated that even though the majority of judges listed aggravating factors,” such as a defendant’s lack of remorse or criminal history, “the biomechanical evidence increased the proportion of judges listing mitigating factors,” like lacking control or being mentally ill, according to the authors. When shown genetic reasoning, the proportion of judges who softened their stance rose from about 30 percent to 48 percent.
In the past 10 years, attorneys have become more prone to bringing DNA and genetics evidence before judges, Berryessa said. I asked her if research suggests the existence of a threshold of accuracy beyond which a judge is more likely to admit genetics into the courtroom.
“It doesn’t really work that way,” she told me. “If an expert comes into the courtroom with a degree from Harvard or Yale or Stanford, research has shown that juries will take that testimony at face value. It’s really the judge’s job to know how to value that information.”
“We are building the blocks toward that Minority Report, Gattaca, science-fiction aspect,” she said. “The kind of genetic information that criminal justices use when deciding risk among the people who come into their courtrooms is one of those pieces.”
Studies of twins whose siblings have committed crimes haven’t supported the hypothesis that certain people are genetically predisposed to criminal behavior. However, the march to integrate genetics with predictive and preventative approaches to law enforcement is gaining momentum. How will it change our systems of health care and criminal justice?
The labeling affects the individual identity. A person could be completely changed by finding out that he is genetically a problem and therefore may choose to live differently.
Given the acceleration of genomic science, it’s worth wondering how our growing comfort with genetic information will affect how we treat each other. Will we use the data to nudge people toward medicine or help them into a pair of handcuffs?
DNA databases and genetic evidence are reactionary, not predictive. But the raw materials for building a pre-crime future are in place.
Genetic analysis could, for example, be combined with clinical risk assessments of mentally ill people to help police focus surveillance efforts. That’s a kind of pre-crime tactic—one fraught with philosophical quandaries.
Research shows that people who find out that they are predicted to fail will, more often than not, fail. Would knowing that you are at, say, a 60 percent risk of committing a felony change how you view yourself? Absolutely, Berryessa said.
“The labeling affects the individual identity,” she said. “A person could be completely changed by finding out that he is genetically a problem and therefore may choose to live differently.”
The push into genetics-based crime-fighting begs the question of whether science will one day uncover and pinpoint some kind of criminal gene or violence allele. Berryessa is certain that such a Holy Grail doesn’t exist.
“The idea that a person has a bad gene, that’s really far off,” Berryessa said. “There’s not one thing that we can point to” to fully account for a person’s behaviors and decisions. “It’s much more complicated.”
