Please, Let’s Bury the Junk: The CODIS Loci and the Revelation of Private Information

By D.H. Kaye[*]

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In a recent essay, Professor Simon Cole asks “Is the ‘Junk DNA’ designation bunk?”[1]  He concludes that in one sense, it is not.  There is no scientific evidence that the specific DNA variations used to identify the sources of crime-scene DNA perform any biological functions.  Nonetheless, he contends that this fact, in and of itself, does not obviate the concern that the specific STR profiles stored in law enforcement databases of offenders (and sometimes arrestees) might be used to extract medically or socially sensitive information.  I agree and have said as much in the past.[2]

Professor Cole also writes that “[t]he privacy threat posed by forensic STRs may not be great,”[3] but he does not explain the basis for this view, and many of his remarks could be construed as being more consistent with the opposite conclusion—that the privacy threat may well be great.  He criticizes the assurances of forensic scientists and human geneticists that, at present, “forensic DNA has no predictive value or medical significance”[4] as “misleading” and “not fully informative.”[5]  He proposes that the records of the STR types of offenders contained in existing law enforcement databases “may, in fact, be precisely the kind of ‘predictive medical information’ that concerns privacy advocates,”[6] and he refers to STRs as potential “markers” having “predictive utility.”[7]  In particular, he asserts that “the forensic STRs . . . correlate with . . . disease-causing genes”[8] and “phenotypically perceived race.”[9]  He concludes that “[i]f some forensic STRs are correlated with genes that cause physical traits, . . . the public can [and should] be informed of that fact”[10] so that it “can decide for itself whether and to what extent the privacy risk offsets the benefits of genetic databases.”[11]  The genetically influenced physical traits that he proposes are discernible from the DNA sequences used in criminal identification databases in the United States include diseases that would be of interest to insurance companies or employers and physical features associated with conventional racial categories.

These remarks require clarification.  Just as the argument that nonfunctional DNA cannot be a threat to privacy is superficial, it would be incomplete and misleading simply to inform the public that an STR profile contains information that is correlated to physical traits such as disease and possibly behavioral predispositions and hence could be used to predict whether an individual will develop a disease.  By innuendo, this formulation suggests that these nonfunctional loci, which are very weakly associated (if at all) with disease or behavior, are comparable to the loci used in much more powerful modern genetic testing for the DNA sequences of mutations that do cause disease.

This Colloquy Essay therefore analyzes in greater depth the medical and biological implications of the DNA records in the National DNA Index System (NDIS) and its local and state components.  It explains why the STR profiles are useless as a “genetic test to screen for any particular disease.”[12]  No one can say for certain what the future of genetics holds, but based on current knowledge and practice, the information coded in the databases is and will remain, with the limited exceptions noted below,[13] useful only for identification.

To develop these points, Part I briefly describes the four possible ways in which genetic loci could possess predictive or diagnostic value with regard to diseases and explains why these mechanisms have not led, and probably cannot lead, to useful screening tests with the Convicted Offender DNA Index System (CODIS) profiles in national, state, and local databases.  Part II considers the “physical traits” and familial relationships that the CODIS STRs can be used to identify.  That the profiles carry limited information about an individual’s race and familial relationships has long been part of the public dialogue, and Part II places the resulting privacy issues in perspective.  Part III comments on analogies between STR types and fingerprints, social-security numbers, and the like, employed when discussing these issues in the public forum.

Nonjurisdictionality or Inequity

By Elizabeth Chamblee Burch[*]

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In response to Professor Scott Dodson’s essay, Jurisdictionality and Bowles v. Russell,[1] imagine this:  “Go ahead, take a ten day vacation,” says your boss.  When you return on the tenth day, a pink-slip awaits.  Per company policy, your boss fired you for being absent for more than eight days.  This is what happened in Bowles v. Russell.[2]  Except that it wasn’t a job, a boss, or a company policy; it was a life prison sentence, a federal district court judge, and a court order.[3]  And what the order said was this:  file your notice of appeal within seventeen days.[4]  Bowles filed within sixteen.  Too late said the Supreme Court; regardless of the calculation error, the court of appeals had no jurisdiction after the fourteen-day deadline in Federal Rule of Appellate Procedure 4(a)(6).[5]

Jurisdictional limits hold the key to the courthouse door.  The 5–4 majority opinion in Bowles reasoned that because Congress set the fourteen-day deadline in 28 U.S.C. § 2107(c), as opposed to a deadline created by rule only, Rule 4(a)(6) was “mandatory and jurisdictional”[6] and could not be equitably extended.[7]  This decision departs from recent precedent designating deadlines as nonjurisdictional.[8]  Professor Dodson’s essay navigates a path between Justice Thomas’s majority opinion and Justice Souter’s dissent by embracing Thomas’s use of “mandatory” and Souter’s argument for deeming appellate deadlines “nonjurisdictional.”[9]  This alternative dovetails with the Court’s recent precedent clarifying time lines as nonjurisdictional, but still allows Thomas to reach the same result.  And it is more elegant, perhaps sparing courts some of the burdens and confusion left by the majority opinion.

But the “mandatory” designation misses the point:  we are still left holding the pink-slip and Bowles is still without an appeal.  Dodson explains that, by depicting the time limit as mandatory, the litigant who “wishes to enforce it . . . need only speak up in a timely manner, and the court is obligated to enforce the limit even if it is inequitable to do so.”[10]  Consequently, “because Russell’s appellate brief to the Sixth Circuit invoked the untimeliness of Bowles’s notice of appeal, characterizing the rule as mandatory would preclude applicability of the ‘unique circumstances’ doctrine and result in the same outcome.”[11]

This Colloquy Post begins by canvassing the nonjurisdictional proposal put forth by both Professor Dodson and Justice Souter.  Considering the systemic, equitable policies underlying Rule 4(a)(6) and the prototypical examples distinguishing jurisdictional rules (those delineating classes of cases) from nonjurisdictional claim-processing rules, this nonjurisdictional alternative makes sense.  It is the “mandatory” aspect of Professor Dodson’s proposal that concerns me; it leaves no room for equity absent the mercy of opposing counsel.  Part II thus analyzes the inequitable consequences of labeling a rule either jurisdictional or mandatory.  Finally, Part III concludes by commenting on Justice Thomas’s appeal to Congress for an equitable result.

Administrative Note: Welcome Back!

Dear Colloquy Readers:

The end of the summer means the start of the academic year, and so we here at the Colloquy would like to welcome all of you back to your respective campuses.  In particular, we would like to congratulate and welcome the new staff members of the Law Review, who will be assisting us with keeping the Colloquy humming. Welcome, second years! We’re happy to have you on board.

In a few weeks we will celebrate the one-year anniversary of the Colloquy, which has seen great success thus far.  We have seen several provoking exchanges, on topics ranging from Supreme Court ideology to the operation of the recess appointment clause.  We look forward to starting our first full academic year with quality legal scholarship and discussion and we will be returning to our academic year schedule of publishing at least one piece per week.

We will publish a number of exciting pieces in the coming weeks, such as continued discussion of the Bowles v. Russell decision and a debate on the many versions of climate change legislation pending in Congress.  We also invite all of you who are interested in publishing on the Colloquy to please contact the Colloquy Editor.  We are always accepting submissions, and no proposal goes unheeded. 

We are thankful for your readership and your contributions.

--Isaac, Melissa, Rich, and the Colloquy Staff

Is the “Junk” DNA Designation Bunk?

By Simon A. Cole[*]

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A recent exchange on the Colloquy between Professors Joh and Kaye[1] reflects a larger debate over civil liberties and DNA databases that has been raging for several years.[2]  In an essay drawing attention to the constitutional vacuum surrounding “abandoned” DNA—that is, DNA that we shed in public as we go about our daily lives—Joh raised a host of concerns about the proliferation of DNA databases, concerns that are heightened for “abandoned” DNA.  In response, Kaye suggested that some of Joh’s concerns constituted “science fiction.”  In this Colloquy Essay, I am primarily concerned with only one of the several issues of dispute between Joh and Kaye:  whether the genetic markers used in law enforcement databases, colloquially characterized as “junk DNA,” constitute a threat to privacy.