The Second Generation of Racial Profiling


Dov FoxFollow

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Police today rely heavily on racial proxies to construct search profiles for criminal suspects. An emerging forensic technique called DNA phenotyping makes it difficult to defend this practice as a matter of policy or law. The technology uses ancestry data and facial recognition software to infer skin tone, nose shape, hair and eye color from cell tissue at the crime scene. Several states already forbid police from adopting this investigatory tool for fear of reviving pseudoscientific racism. These criticisms are misplaced. Not only does DNA phenotyping provide a falsifiable check on dubious eyewitness accounts based on a suspect's race. It promises to improve arrest accuracy, enhance police legitimacy, and loosen the grip that race has on the way we think about crime. DNA phenotyping puts constitutional pressure on investigators' reliance on eyewitness racial identification. Equal Protection doctrine insists that the state replace race-based action with suitable race-neutral alternatives. Where an investigation's urgency and the availability of DNA evidence allows, a totality-of-the-evidence approach should require the corroboration of race-based suspect descriptions with phenotyping markers in proportion to the reliability of each.

Publication Info

38 AM. J. CRIM. L. 49 (2010)