The Genomic & Biotech RevolutionA Brave New World is Upon Us

Exploring the legal (& ethical) implications for the field of criminal law.

Genomics and the Law

Potential Legal Questions

(that we really ought to be thinking about)

Genetic Discrimination
How will genomics research/advances change the face of discrimination law? Will a claim for genetic discrimination stand? How will we prosecute/defend against genetic discrimination?

Example:
Should we, as a society, pre-emptively discriminate against employees who have mutations in the gene for Huntington disease, or should we require transportation agencies to routinely enforce performance evaluations that would detect neurological problems in order to protect the public and prevent accidents? Now that this type of information is accessible, should individual privacy interests outweigh potential public safety interests? How should we decide which interests are more important for each particular case?

Intellectual Property Who owns the human genome? Can we patent parts of the human genome?
See Assoc. for Molecular Pathology v. Myriad Genetics, Inc., et al.

Criminal Law Questions-

If criminal behavior is genetic, should it be punished?

The Warrior Gene

http://www.youtube.com/watch?v=NlFB-l2vMSk

People with limited MAO-A gene

activity are born with a physical genetic

factor that might drive them to behave in

ways that perhaps others who don't have

it wouldnt.
Should we hold those with the gene and those without it to be equally responsible? Should we have different sentences for those that have the gene and those that dont? Can we really fault individuals for their genetic deck? (assuming that their genetic composition is unalterable)

Could genetic information radically change, or potentially do away with, the quasisacrosanct intent element required of many crimes?
genetic mitigation can show that an offender might not be responsible for his actions.

Arguably then, if you have a genetic disposition to behave in a certain way, you cant possibly have the necessary intent, right?

Reasonable Person Standard redo?

There is vibrant debate about whether genetic factors that lead to diminished levels of self-control should be taken into consideration, making the reasonable person standard more subjective. The reasonable person standard already allows for a more subjective reasonable person. Individual physical attributes differences, such as physical size and strength or physical disability, are already considered. How should genomics information shape the reasonable person standard? Who should decide?

RAP Sheet Make-over?

Background Check Upgrade!

-Should prosecutors have access to a defendants genetic information just like they have access to a defendants RAP sheet?
-5th Amdt. self-incrimination defense?

Genetic Crime Prevention?

Genetic Crime Prevention!

-Now that we have the genetic information that we have, should we act pre-emptively?

-One strike law? Once you act upon your genetic impulses should we lock you up for good?
-What if instead it becomes a question of when, not if, we lock you up? Imagine a world where all new-born babies have their genome sequenced (Gattaca). Once we have this information should we even take our chances letting dangerous individuals roam our streets?

Does the criminal system have it all wrong?

If criminals are genetically preprogrammed to commit crimes, then the assumption that incarceration might reshape criminal behavior could be flawed.
-Adopted children whose biological parents are criminals are much more likely to become criminals themselves, even if their adopted parents are lawabiding.

Recent neuroscience and epigenetics research shows that things are not as grim as they may appear at first glance. Rather than thinking we are controlled by the genetic deck we were born with, epigenetics research shows that our environment plays a very important role in altering our genetic information. As we progress through life, our genetic information is not static, but rather, can change depending on the circumstances and environment. Perhaps it is time that we, as a society, rethink the way we address criminal justice altogether.

Does the criminal system have it all wrong?

The Current State of Genomic Law

Currently, there are not too many cases dealing with genomics generally, and even fewer where genomics plays a role within the criminal law context. Im sure it is just a matter of time.

Lets take a quick look at the cases that have had a genomic/biotech component in recent years.

Myriad
Assoc. for Molecular Pathology v. Myriad Genetics, Inc., et al.

Issue: Can we patent genes?

The court, in an order today, said it would consider only the question of whether human genes can be patented, meaning it plans to dive straight into one of the most contentious and elusive questions in patent law, which is the difference between an invention and a natural phenomena.
-Forbes (11/30/2012)

Norman-Bloodsaw v. Lawrence Berkeley Laboratory

(9th Cir. 1998) 135 F.3d 1260, 1269. Example of genetic discrimination in the workplace. Use of pre-employment genetic screening at Lawrence Berkeley Laboratory (1st instance of genetic discrimination right here in our very own beloved Berkeley). [T]he employment of women and blacks at Lawrence was conditioned in part on allegedly unconstitutional invasions of privacy to which white and/or male employees were not subjected. One can think of few subject areas more personal and more likely to implicate privacy interests than that of one's health or genetic make-up. These tests may also be viewed as searches in violation of Fourth Amendment rights that require Fourth Amendment scrutiny. The tests at issue in this case thus implicate rights protected under both the Fourth Amendment and the Due Process Clause of the Fifth or Fourteenth Amendments.

Banks v. US
United States Court of Appeals, Tenth Circuit. June 18, 2007 490 F.3d 1178 Holding: Analyzing the DNA contained within the blood sample, or even from a cheek swab, must pass Fourth Amendment search-and-seizure scrutiny. Collecting and profiling DNA of non-violent felons on probation, parole, or supervised release under DNA Backlog Elimination Act was reasonable under Fourth Amendment, given government's legitimate interests in accurately identifying offenders, solving past and future crimes, and combating recidivism when compared to diminished privacy rights of felons on conditional release, minimal intrusion involved in collecting DNA samples, and Act's restrictions on use of DNA information, notwithstanding somewhat diminished likelihood that DNA of non-violent felons would help solve past and future crimes. We also reject the speculation that allowing the Government to profile convicted felons' DNA opens the door to DNA profiling of every citizen who at some point has a diminished expectation of privacy.

Mobley v. State (1995)

-The first appeal to the MAOA gene and violence susceptibility was Mobley v. State The defense requested MAOA genotyping for the rare mutation found in the Dutch family in the Brunner et al. study of Stephen Mobley, a 29 year old man accused of murder. Charged with murder. During trial, asked for genotyping according to rare Brunner et al. study

US v. Mitchell
United States Court of Appeals, Third Circuit July 25, 2011 652 F.3d 387 CRIMINAL JUSTICE - Searches and Seizures.

Holding: Statute permitting the suspicionless collection of DNA samples from arrestees did not violate the Fourth Amendment.

Crews v. Johnson
United States District Court, W.D. Virginia, Roanoke Division. March 29, 2010 702 F.Supp.2d 618 -petitioner was unable to test or challenge DNA evidence presented because it was previously destroyed Petitioner Crews was arrested, indicted, and eventually convicted on the basis of one crucial piece of evidence: the February 20, 2002 match between his DNA profile and the DNA profile developed from evidence in the unsolved 1999 Lipscomb rape investigation, the cold hit found by randomly searching the state DNA database.

The essence of all of petitioner's claims centered on the fact that the DNA evidence from the 1999 investigation was destroyed by the government and he was not afforded the opportunity to challenge the cold hit or independently test the 1999 DNA sample. Crews asserts that his rights under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution were violated because he was unable to test or challenge DNA evidence presented by the prosecution

Waldroup (2009)
MAOA data was introduced in the pre-conviction phase. Charges: D charged with murder of estranged wifes friend, attempted murder of wife, and two counts of kidnapping after escalating argument. After the jury heard about the MAOA Gene, D was convicted of: -voluntary manslaughter (instead of murder) -two counts of aggravated kidnapping - attempted 2nd degree murder. 32 year sentence

Bayout (2009)
MAOA data was introduced in the sentencing phase. Facts: D assaulted by group of youths, after which he bought a knife and followed the victim down the street. D killed victim, mistakenly thinking victim was one of the assailants. Possibly delusional at the time. Sentence reduced by 1 year because of the genetic evidence that was presented.

International Cases
In Italy, a judge reduced the sentence of a defendant by 1 year in response to evidence for a genetic predisposition to violence. The best characterized of these genetic differences, those in the monoamine oxidase A (MAOA), were cited as especially relevant. Several months previously in the USA, MAOA data contributed to a jury reducing charges from 1st degree murder (a capital offence) to voluntary manslaughter.

Tennessee v. Waldroup
2011 WL 5051677 After a lengthy debate, Judge Ross allowed the defense to introduce genetic testing results. Dr. Bernet testified that genetic testing showed issues with both seratonin levels and transmitters in Waldroups brain that rendered him unable to engage in the reflection and judgment necessary to premeditate the crimes. Bernet said his diagnosis was not based on the genomic testing, but the tests confirmed his initial diagnosis. He cited dozens of studies and articles written on genomic research and said results of the initial studies had been replicated more than 36 times since 2002. US court not only admitted MAOA gene environment interaction (MAOA-L + childhood abuse) evidence during the guilt phase of the trial of Davis Bradley Waldroup, but the jury took it into account when reducing the charge from 1st degree murder (a capital offense) to voluntary manslaughter (a maximum sentence of 6 years)

Enacted and/or proposed legislation

(2) Genetic characteristics. For purposes of this section, "genetic characteristics" means either of the following: (A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.

(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.

Unruh Civil Rights Act

all persons within the state are free and equal, regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation, and are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

Genetic Information and Nondiscrimination Act of 2008

It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee except--

2011 California Senate Bill No. 559, California

2011-2012 Regular Session

Discrimination: genetic information.

By expanding the bases upon which discrimination is prohibited under the Unruh Civil Rights Act and FEHA to include genetic information, this bill would also expand the bases upon which discrimination is prohibited under other antidiscrimination provisions that prohibit discrimination on the same bases as provided for in the Unruh Civil Rights Act and FEHA.

(f) Although genes are facially neutral markers, many genetic conditions and disorders are associated with particular racial and ethnic groups and gender. Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information.

Do legal professionals have what it takes to tackle these issues?

My own two cents

The questions that are being raised with the genomic/biotech revolution are of such importance that the legal community ought to have a sense of urgency in tackling these issues. It is my personal belief that legislators, lawyers, and your everyday normal person all have so much on the line, that it really is our responsibility to stay up to date with the most recent changes. If we dont act now, I foresee a not-sodistant future where rather than having a controlled, rational public discussion, we will find ourselves scrambling to answer these very pressing questions in a piecemeal manner, coming at a very high cost to the present and future interests of society.