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44 Boston Bar J. 18 (2000)
Landry v. Attorney General: DNA Databanks Hold a Mortgage on Privacy Rights

handle is hein.barjournals/bosbj0044 and id is 20 raw text is: LANDRY V. ATTORNEY GENERAL: DNA DATABANKS HOLD A MORTGAGE ON PRIVACY RIGHTS by Michael Avery The Human Genome Project will soon complete a map of the entire complement of genetic information in the human genome. This Project is the largest coordinated effort in biology ever directed at a single goal.' The potential scientific and medical benefits that will result from this knowledge are staggering. Eventually, in utero detec- tion of genetic disorders that will not cause symptoms until decades after birth may permit early medical intervention, diet and exercise regimens, and gene-based treatments which could substantially improve the quality of life of untold numbers of people. These developments are truly a beacon lighting our transition to the new millennium.2 At the same time, developments in genetics pose serious threats to personal privacy and create new social problems. DNA analysis reveals highly personal information regarding intimate family relationships (e.g., paternity), health conditions (genes have been linked to over 4,000 specific disorders and diseases) and genetic traits.3 The personal information disclosed may violate the privacy not only of the subject whose DNA is analyzed, but also that of close relatives. Researchers are currently attempting to develop genetic profiles that would identify or predict homosexual- ity, aggression, criminality, mental illness, alcoholism, obesity and other conditions. The Massachusetts Legisla- ture commissioned a study into the biological causes of crime in 1996.4 The Departments of Correction, Education and Public Health presented a joint report on the matter to the Legislature on June 30, 1996. At the same time, the National Institutes of Health were funding more than 200 clinical studies on the genetic basis of criminal behavior. Other research projects on the relationship between biology and crime have been funded by the National Science Foundation, the Centers for Disease Control, the National Institute of Mental Health and the Alcohol, Drug Abuse and Mental Health Administration. Many citizens have already experienced discrimination or social stigmatization from the release of genetic informa- tion.' This has included the loss of employment and denials of insurance coverage for persons asymptomatic for disease, premised on risks that are believed to accompany an abnor- mal genotype. The unfairness and potential for harm to individuals and families inherent in such social stereotyping is evident.6 The threat to public health may be less readily appreciated. Nonetheless, to the extent there is fear of discrimination that may result from disclosure of genetic information, the risk is that some citizens may forego recommended genetic tests or other medical procedures. These problems will pose great challenges for the judicial system as we enter the next century. On the one hand, it must be recognized that Michael Avery is an Associate Professor at Suffolk Law School. Before joining the law School in 1998, he was a trial lawyer for twenty-eight years, most recently as a partner at Perkins, Smith & Cohen in Boston. Professor Avery is the co-author of the Handbook of Massachusetts Evidence and Police Misconduct: Law and Litigation. there are great benefits from employing DNA identification procedures in criminal cases. DNA evidence not only makes the conviction of the guilty criminal more likely, but it has been responsible for the dramatic proof of innocence of previously convicted defendants, including many on death row.7 Enthusiasm for this fact-finding tool of unprecedented reliability has led to legislation in all fifty states creating DNA databanks linked to the criminal justice system.8 The existence of these databanks, however, creates serious threats to constitutional freedoms. Massachusetts passed a statute in 1997 which requires persons convicted of 33 different felonies to provide DNA samples to the State Crime Laboratory.9 Failure to provide a sample is punishable by a fine and/or imprisonment. Law enforcement officers and correction personnel are authorized to use reasonable force in collecting samples from unwill- ing donors. The Director of the Crime Laboratory has promulgated regulations pursuant to the statute. The regulations provide that eight drops of blood from a finger stick will be depos- ited on a specialized Blood Collection Paper that binds DNA. The DNA sample consists of this special paper and the DNA Database Collection Card, on which is recorded the subject's name, current address, social security number, date of birth, sex, race, form of positive identification shown by the subject and a rolled right thumb inked fingerprint. These DNA blood samples are submitted to the State Police Crime Laboratory for DNA analysis and are required by the regulations to be stored indefinitely, unless an individual's records are ordered expunged by the Superior Court on the ground that a criminal conviction has been reversed and the case dismissed. The regulations specify that DNA analysis is to be performed by short tandem repeat (STR) testing. This results in a DNA record which is separate from the sample and consists of the traditional information identify- ing the subject and numerical identification information based on the DNA analysis of the sample. This record is entered into the state DNA database and forwarded to the Federal Bureau of Investigation for maintenance in the Combined DNA Index System (CODIS), a national system for the storage and exchange of DNA records submitted by state and local law enforcement agencies. The statute authorizes furnishing DNA records to law enforcement agencies for identification purposes in official criminal investigations or prosecutions. The Supreme Judicial Court was presented with an opportunity to rule on the constitutionality of this statute and to address the privacy issues implicated by the DNA databank in Landry v. Attorney General.12 Given the interest and controversy which DNA databanks have engen- dered among scientists, bio-ethicists, medical experts and other citizens, one would have hoped for a decision of some historical significance and intellectual rigor, addressing the challenge to privacy rights posed by scientific breakthroughs in genetics. Unfortunately, the Court contented itself with a pedestrian opinion based upon a narrow and incomplete analysis of constitutional issues. With respect to the result, the SJC joined other appellate courts that have upheld the constitutionality of coercing convicted criminals to make contributions of biological January/February 2000 BOSTON BAR JOURNAL BOSTON BAR JOURNAL January/February 2000

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