Prisoners’ expectations of the national forensic DNA database: Surveillance and reconfiguration of individual rights

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Abstract

In this paper we aim to discuss how Portuguese prisoners know and what they feel about surveillance mechanisms related to the inclusion and deletion of the DNA profiles of convicted criminals in the national forensic database. Through a set of interviews with individuals currently imprisoned we focus on the ways this group perceives forensic DNA technologies. While the institutional and political discourses maintain that the restricted use and application of DNA profiles within the national forensic database protects individuals’ rights, the prisoners claim that police misuse of such technologies potentially makes it difficult to escape from surveillance and acts as a mean of reinforcing the stigma of delinquency. The prisoners also argue that additional intensive and extensive use of surveillance devices might be more protective of their own individual rights and might possibly increase potential for exoneration.

Introduction

Current state concerns with crime control and the securitisation have led an increasing number of governments to invest in a variety of new bio-information technologies to manage the risks posed by criminal elements and terrorist groups. Chief amongst these new bio-information technologies has been DNA profiling or DNA fingerprinting, frequently described as the greatest breakthrough in forensic science since fingerprinting and as the gold standard for individual identification. Following the earlier widespread adoption in many other European countries, in February 2008, the Portuguese law for the forensic DNA database for criminal identification was passed [1]. The database is expected to become operational during 2010.

The regulation of the Portuguese forensic DNA database is more restrictive in terms of data inclusion and information preservation than other European countries [2]. Unlike some countries that do not remove profiles from the DNA database for criminal investigation purposes, Portuguese legislation sought to protect the possibility of each and every individual of having a “clean slate” in society, “free” from any sort of official record that, in a direct manner, may associate the individual with a crime committed in the past.

As one of the most effective tools in crime detection currently available, the creation and organization of forensic DNA databases also involves potential threats to a range of individual rights, such as the right to privacy, the right to liberty, the right to moral and physical integrity, the dignity of individuals and the presumption of innocence.

From the point of view of surveillance studies, DNA databases can represent one of the instances by which new and effective modes of social control have been configured and associated to political and governmental crime prevention and control strategies. The storage of individuals’ DNA profiles in a database enables a greater surveillance focus on potential offenders and re-offenders within societies that are less tolerant towards suspect citizens [3] and which is made easier by public support of the fight against crime.

The adoption by state surveillance practices of scientific and technological devices for corroborating or inferring identities [4] has been examined by a considerable body of debate and research, such as the studies of history of state identification [5] and the co-production of surveillance technologies and genetic suspects [6], [7], [8] the work on the increasing use of forensic sciences in support of criminal investigations [9], [10], [11]; “dataveillance” [12]; and visibility and new forms of surveillance [13], [14], [15], [16]. Williams and Johnson [4], [17] have made fundamental contributions to describing and understanding the novel and powerful form of bio-surveillance offered by DNA profiling and database as a developing instrumentality of modern state surveillance. The forensic DNA databases also constitute “centres of calculation” [18] whose installation marks the expansion of bureaucratic surveillance in contemporary society as part of a bio-surveillance apparatus.

This research work is supplemented by the existence of one single published study carried out in Austria on the prisoners’ knowledge about forensic DNA technologies and their expectations with regard to the inclusion of criminals’ DNA profiles in the database for the purposes of criminal investigation [19]. This paper aims to provide additional understanding of the prisoners’ knowledge and social images concerning the co-production [8] of surveillance and DNA profiling and databasing. In particular, we discuss how Portuguese prisoners know and what they feel about surveillance mechanisms related to the inclusion and removal of the DNA profiles of convicted criminals in the national forensic database. We argue that this represents a form of “governmentality” [20], that is, the social uses of DNA databases for forensic purposes impacts on self management of those whose actions and identities are monitored in this way under such scrutiny.

Following the seminal work on biopolitics [21] and biosociality [22], Lynch and McNally [8] proposed the concept of “biolegality”, that is, the creation of a symbiotic relationship between law and biotechnology through which an ongoing process redefines the rights and status of the suspect body and of criminal evidence. The authors discuss how biolegality operates by creating suspect identities [8]. They also argue that “although ‘selves’ are deeply implicated, suspect identity is primarily an object and product of policing and forensic expertise, rather than a technically defined basis for the formation of individual and group identity” [8].

This paper aims to produce a contribution in the area of surveillance studies by considering three important aspects: first, because it takes the standpoint of the surveillance subjects [23] by inquiring into prisoners’ experiences and/or expectations of state surveillance related to the information gathering and storage of DNA profiles for the purposes of criminal investigation. Second, it proceeds to understanding the heterogeneous elements that exist within surveillance practices, through a focus on the dynamics of submission and resistance to DNA forensic technologies developed by criminal bodies. Third, it deconstructs the idea that devices of surveillance and control through DNA databasing have a purely negative character, by arguing that ex-prisoners might feel more liberated and protected from control and repression by being subject to surveillance.

Section snippets

Methods

After obtaining authorization from the General Board of Prison Services in 2009, we conducted 31 semi-structured interviews to inmates in three prisons for male adults in the north of Portugal between May and September 2009. The interviews took 34 min on average and were conducted by three trained interviewers.

We devised a theoretical sample, based on representativeness by diversity and exemplariness [24], and conjugated with a convenience sampling by considering the individuals that would be

Challenging security and threats to ex-convicts’ rights

The added value of the DNA database is said to be translated into a swifter justice system which, thanks to DNA profile matches, now makes it possible to obtain more guilty pleas from suspects, thus saving time and resources [27]. However, the dominant conceptions of the idea of security were defied by some of the participants in this study. For example, Daniel, the only interviewee with a higher education degree, talked about security as an “illusionary” sociopolitical construction that can be

The stigma of delinquency and the role of the usual suspects: a plea for a universal database

The distrust towards the “real” future uses of the forensic DNA database became more evident when the prisoners were asked what they thought about removing the profiles from the database after the offence is expunged from the criminal record. The majority of our interviewees (20 individuals out of 31) were of the opinion that that the profiles should not be removed from the DNA database.4

Questioning the DNA as a “truth” machine

The interviewees’ argument in favour of the expansion of criteria in the national forensic database to include DNA profiles of all citizens, or at least, all convicted individuals, appears to be grounded on their notion that DNA technologies enable the automatic identification of “offenders”. The belief in the “truth” of DNA was not, however, absolute, like the data obtained in interviews with prisoners in Austria [19]. Although the general majority (25 individuals out of 31) of those we

Conclusion

In this paper we have discussed how individuals themselves might be more implicated in the construction of suspects’ identities [40] and in the redefinition of the rights and status of suspect body than is usually described in the literature. We have explored in detail one concrete case of bio-surveillance apparatus by taking into account how knowledge about collection and databasing of DNA profiles has effects on the self-management of those whose action and identities are captured in this

Acknowledgments

We would like to thank the Foundation for Science and Technology (Portuguese Ministry of Science, Technology and Higher Education) for financing this research through a post-doc fellowship (SFRH/BPD/34143/2006), the project “Forensic DNA databasing in Portugal: Contemporary issues in ethics, practices and policy” (FCOMP-01-0124-FEDER-009231) and also the project “Justice, media and citizenship” (FCOMP-01-0124-FEDER-007554). We are grateful for the insightful and helpful comments of Barbara

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    1

    Address: Research Centre for the Social Sciences, University of Minho, Portugal; Centre for Social Studies, University of Coimbra, Portugal.

    2

    Address: Centre for Social Studies, University of Coimbra, Portugal. Tel.: +351 239 855 570; fax: +351 239 855 589.

    3

    Address: Institute of Public Health of University of Porto, Department of Hygiene and Epidemiology, University of Porto Medical School, Portugal. Tel.: +351 2061820; fax: +351 2061821.

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