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SEN. RANDY KELLY (DFL-St. Paul) likes to engage in the kind of debate that, in his parlance, makes "people think outside the box." Which is exactly where he was reportedly going when he recently invited a Plymouth geneticist to address a state Senate panel about crime prevention. The scientist, Genovus Inc. Chairman John Offerman, was happy to go because he's anxious to sell the state on a new method of taking DNA fingerprints from prisoners.
But Kelly wanted to expose his colleagues to the possibility that criminals might someday be "fixed" using gene therapy. If we'll be able to correct criminal behavior medically within 15 or 20 years, he has speculated, should Minnesota build a new prison?
Technology has a way of reopening seemingly settled debates on privacy rights, and the technology surrounding genetics is moving faster than anyone anticipated. To date, Kelly hasn't introduced any genetics legislation. But even as policymakers and privacy activists debate what kind of DNA profiles government should be permitted to keep, speculation that gene therapy might eventually "cure" criminals is opening yet another Pandora's box.
Minnesota currently compiles a genetic profile of each convicted sex offender in its prisons. Having each convict's DNA on hand is useful because of sex offenders' high rates of recidivism and because most rapes involve the kind of physical evidence that lends itself to DNA testing. Up until now, DNA fingerprinting has involved large blood samples and been too expensive to extend to all prisoners, although the state Bureau of Criminal Apprehension is working on automating 12 new tests.
Offerman says he could use a new test to both extend DNA fingerprinting to all prisoners and save the state money. For $30 to $50 per test, Offerman says, Genovus could use a swab to take a tiny sample from the inside of each inmate's cheek. Having these "fingerprints" on file might help police nab a suspected rapist based on, say, his past as a burglar or drug user. Virginia already samples the DNA of all convicted felons.
Courts across the country have consistently upheld the state's right to take DNA fingerprints from prisoners, according to the American Civil Liberties Union's National Prison Project. But the privacy concerns involved in broadening the number of people who've given up a map of their genes are enormous nonetheless. Under President Clinton's 1995 crime bill, 40 states share the genetic information they collect with a federal database to be used eventually by law enforcement everywhere, just like the FBI data bank of conventional fingerprints. A genetic database of members of the military--currently under challenge in federal court--is also being compiled.
DNA profiles contain all kinds of information about an individual that conventional fingerprints don't. In the hands of a health insurance company, an individual's genetic profile might make them uninsurable, or subject to policy exclusions for specific illnesses to which they are believed to have a genetic predisposition. Government maintenance of such files might eventually result in certain children being written off as "at-risk" before they demonstrate any anti-social behavior at all.
Much of the trouble stems from politicians' inexact understanding of what genetics can actually predict. Genovus's Offerman is careful to note that most genetic characteristics are polygenic--that is, in order for a disease or presumed social pathology to develop, an individual must have both a genetic predisposition and interactions with adverse environmental factors. A woman carrying the genetic marker for breast cancer may eat all of her vegetables and never develop the disease. And a man carrying the marker for violence, presuming one is found, may never be exposed to the risk factors thought to spark anti-social actions.
The history of science's crime-prevention efforts is peppered with incidents of tenuous facts being used against the suspect and the unpopular. In the 1930s, the eugenics movement made such a convincing case that criminal tendencies and mental illness were inherited that 27 states passed laws allowing forced sterilization. In the late 1960s, babies born in Boston were screened for an extra chromosome briefly thought to cause violence.
"These are huge privacy and ethical issues.... We must have an information and data privacy committee. Now technology is as much an infrastructure as anything and we're taking up more and more time on data privacy issues," notes Sen. Jane Ranum (DFL-Minneapolis), who serves with Kelly on the Senate's Crime Prevention and Judiciary Budget Division. "It's a public policy issue of 'do we really understand?'"
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