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Excerpted from: Jennifer K. Wagner, DNA, Racial Disparities, and Biases in Criminal Justice: Searching for Solutions, 27 Albany Law Journal of Science and Technology 95 (2017) (270 Footnotes Omitted) (Full Article)

"[W]e remain imprisoned by the past as long as we deny its influence in the present."
~Justice Brennan

"The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity."
~Universal Declaration on the Human Genome and Human Rights

JenniferK WagnerNearly 150 years ago, the United States ratified the Fourteenth Amendment, recognizing the right of every "person within its jurisdiction the equal protection of the laws." More than 50 years ago, the United States enacted the Civil Rights Act of 1964, prohibiting racial discrimination in federal assisted programs, such as law enforcement. More than 20 years ago, the United States ratified the International Convention on the Elimination of All Forms of Racial Discrimination. More than a decade ago, the Department of Justice issued guidance regarding the use of race by law enforcement. And yet, in 2015, headlines and hashtags prominently feature regular reminders of "the ‘badges and incidents of slavery,"' and racial disparities persist in all facets of the criminal justice system. The Department of Justice (DOJ) issued its first formal guidance regarding the use of race by law enforcement in 2003 *97 (2003 DOJ GUIDANCE). The 2003 DOJ GUIDANCE and the Bush administration's handling of racial profiling--including the administration's profiling against individuals of the Muslim faith and of ancestry or national origins in the Middle East--were heavily criticized. President Obama, the nation's first African American president (who, coincidentally, had passed an antiracial profiling bill in Illinois as a state senator), campaigned on a platform that included a promise to "ban racial profiling." And while a review of the 2003 DOJ GUIDANCE began in 2009 by Attorney General Eric Holder, the nation's first African American Attorney General, the Obama administration did not release new guidance until December 8, 2014 (2014 DOJ GUIDANCE). While neither policy discusses genetic or genomic science and technologies, each informs the context within which law enforcement and prosecutors have applied and will apply those tools.

In Maryland v. King, a case decided in 2013, the U.S. Supreme Court had the opportunity to consider whether a state statutory scheme could authorize law enforcement to collect and analyze DNA from individuals prior to conviction--i.e., whether DNA fingerprinting could be routinized as part of the arrest booking procedure--without running afoul of the Constitution. The questions presented to the Court in briefs and oral arguments were not focused on race, racial profiling, or racial discrimination. Rather, they focused on a right to privacy, and, *98 accordingly, the case was briefed, argued, and decided under a Fourth Amendment analysis--i.e., whether including DNA fingerprinting as part of the arrest booking procedure constituted a reasonable search and seizure. The Court nevertheless declined the opportunity to articulate the legal boundaries of a right to ""genetic privacy" definitively. The holding, while likely correct and intentionally narrow, has serious implications for the persistence of racial disparities in the criminal justice system, and, quite possibly, might exacerbate those racial disparities if deliberate countermeasures are not taken.

This article first provides an overview of Maryland v. King and the 2014 DOJ GUIDANCE regarding the use of race by law enforcement.

An anthropological discussion of race, racial disparities, and racial biases is then provided for much needed context, followed by a brief review of equal protection jurisprudence. Altogether, these highlight (1) the importance of prioritizing nondiscrimination principles over privacy considerations with regard to DNA, and (2) the need for interventions that not only effectively eliminate racial profiling and other forms of intentional discrimination, but also effectively neutralize implicit racial biases and discriminatory effects in the absence of racial purpose or animus.

The article concludes with a set of preliminary recommendations, including the expanded use of DNA analysis by law enforcement; the development of educational and priming interventions for witnesses, jurors, and attorneys; the passage of new legislation by Congress to establish a disparate impact analysis and prohibit racial profiling specifically; and the extension of the exclusionary rule as a judicially-inferred remedy to safeguard protections of the Fourteenth Amendment.