Coding for Race? Ethical Implications of the “R-Word” In Forensic Genetic Profiling

1. Coding for Race? Ethical Implications of the “R-Word” In Forensic Genetic Profiling Pilar N. Ossorio University of Wisconsin Law School, Medical School

2. Outline • A (Very) Brief History of Race • Contemporary Race Theory & Human Genetic Variation • Ethical Implications of Forensic Genetic Claims About Phenotype and Ancestry

3. What is race? “When we talk about the concept of race, most people believe that they know itwhen they see it but arrive at nothing short of confusion when pressed to define it.”Evelyn Brooks Higgenbothem

4. Evolution of Folk Concepts of Race • European & English colonization & conquest (16th to 19th Century) • advent of consolidated social structures of appropriation, exploitation and domination • genocide for many indigenous/native peoples • Spanish Inquisition: hereditary nature of social status, Jewishness and Moorishness defined through blood ties • Rise of black slavery in the US—slavery and racial prejudice continuously reinforced each other

5. Races as families or inbred lines • 16th & 17th C: race used interchangeably with type, variety, people, nation, generation & species • By the latter half of the 18th C race is strongly equated with “breeding stock” • Farmers and herders understand animal breeds as highly inbred lineages with heritable characteristics • Emphasizes innateness of characteristics • Value judgments were and are critical to choosing the reproducing members of a line of stock, because one breeds for some specific, valued quality • Audrey Smedley • Race in North America, 1993

6. Formal Human Classification Linneaus, Systemae Naturae, 1758 • Europeaeus • White; muscular; hair – long, flowing; eyes blue • Americanus • Reddish; erect; hair – black, straight, thick; wide nostrils • Asiaticus • Sallow (yellow); hair black; eyes dark • Africanus • Black; hair – black, frizzled; skin silky; nose flat; lips tumid

7. Race and Social Stratification Linneaus (1758) Systemae Naturae • Europeaeus (white) • Acute, inventive, gentle, governed by laws • Americanus (red) • Obstinate, merry, free, regulated by custom • Asiaticus (yellow) • Haughty, avaricious, severe, ruled by opinions • Africanus (black) • Crafty, indolent, negligent, governed by caprice or the will of their masters

8. Folk Notions of Race • Distinguishable, nonoverlapping, categories • Distinct essences • Fixed & stable (immutable) • Natural

9. 19th-20th Century Anthropology • Folk and “scientific” notions of race begin to diverge in the early 20th C • Anthropologists and other scientists observed: • clinal variation of measurable traits • non-concordant variation of traits • single African origin • “The more traits you looked at, the more races you could see.” J Marks, Human Biodiversity, 1995 • Physical measurements do not identify distinct categories of humans to correspond with folk notions of race

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11. 1970-2000: Geneticists Rediscover What Anthropologists Knew • No dramatic genetic discontinuities among humans • Little genetic variation when compared to other organisms  young species with a single common origin in Africa • Clinal variation, nonconcordant variation • Far more within-group than between- group variation

12. Human Genetic Variation • Humans are > 99% genetically alike • Of the <1% variation • ~85% is within any human population or group (such as town/village/tribal or ethnic group) • ~10% is between any two groups, even those that are geographically close • ~5% is between geographically distant groups such as two towns/villages from different continents

13. Implications of High Within-Group Variation • No unifying genetic essence for people of the same race • People of the same race are not necessarily “closely related” when compared to people of different races • the families metaphor of race is misleading, • the “breed” metaphor is inapposite • People of Africa are the most genetically diverse  although African Americans are the most “raced” people socially, black is the least coherent of genetic categories

14. Contemporary Scientific Controversy • Abandon race as a variable in biomedical research: • “race has no biological basis”(Shwartz, NEJM, 2001) • “race has no scientific basis”(Witzig, Annals of Int. Med., 1996) • use of race is “black box epidemiology” that “seldom results in fundamental new understandings of disease.”(Bhopal, BMJ, 1997) • Use of race “lacks scientific validity” (Haga & Venter, Science, 2003)

15. Contemporary Scientific Controversy • Use race in biomedical research and clinical practice: • “DNAPrint Genomics and the Penn State University have identified the world’s only race-determining set of ancestral informative markers.” DNAPrint web site visited June 9, 2003 • “… we demonstrate here that from both an objective and scientific (genetic and epidemiologic) perspective there is great validity in racial/ethnic self-categorizations, both from the research and public policy points of view.” Risch et al., Genomic Biology, 2002

16. Assumptions Behind the Race in Science Controversy • That the “reality” of race can be adjudicated using genetic data • If race is not “genetic” then it is not real • Whether or not race is a valid category for clinical research or health care depends on whether or not race can be defined genetically

17. A Way Out of the Binary Trap • Races are not natural, genetic categories • Race is, nonetheless, one of the most significant social stratifying practices in US society • Race may be relevant in human biology research even if racial categories are not genetic or fixed, biological categories

18. Contemporary race theory • Race is a 2nd order construct • Race = beliefs about ancestry, nationality, language(s)/accent, religion practiced, skin color and other morphology • Race is relational, created through our interactions, which are based on and reinforce our beliefs about ancestry, nationality… • Fluid, historically and geographically continent • Most significant and deeply rooted social stratifyingpractice in the US

19. Fluid and Historically Contingent • Who could naturalize in the US as a white person? • John Wigmore, 1894: Japanese are white but Chinese are not! • “Having as good a claim to the color ‘white’ as the southern European and the Semitic peoples, having today greater affinities with us in culture and progress and the facility of social amalgamation than they have with any Asiatic people, isolated as they are today from Asia in tendencies and sympathies…”

20. Fluid and Historically Contingent • Naturalization: Terrace v Thompson, 274 F 841, 849(W.D. Wash. 1921) • “It is obvious that the objection [to naturalization of non-whites] by Congress is not due to color, but only to color as evidence of a type of civilization which it characterizes. The yellow or bronze racial color is the hallmark of Oriental despotisms… ”

21. Fluid and Historically Contingent • Terrace cont. “It was deemed that the subjects of these despotisms, with their fixed and ingrained pride in the type of their civilization, which works for its welfare by subordinating the individual to the personal authority of the sovereign… were not fitted… to make for the success of a republican form of Government. Hence they were denied citizenship.”

22. Contemporary Example • Dave Chapelle’s racial draft – a forum to decide the race of mixed-race or racially ambiguous celebrities: • Blacks draft first, take: Collin Powell & Tiger Woods • Whites want to trade for Powell. • Blacks agree to give Powell to whites for a future pick, but only if the whites will take Condoleeza Rice.

23. Racial Draft Cont. • Whites trick blacks on next round, whites agree to keep Eminem if blacks take back OJ • Latinos “waste” a pick, take Elian Gonzalez to keep the whites from getting him • Asians take the Wu Tang Clan • Jewish people take Whoopi Goldberg & Lenny Kravitz.

24. Contemp example II • Pharma phase III clinical trials: people are assigned to different racial groups in different parts of the US.

25. Contemporary race theory • Race is not equal to ancestry • Race is not equal to skin color, eye shape, hair texture or other morphological characteristics

26. Forensic Genetics and Race • Genetics can tell us something about the ancestry of a DNA source (ancestry informative markers = AIMS) • Inferring morphology from ancestry is problematic! • Genetics can tell us something about the morphology of a DNA source (future!) • Genetic testing does not disclose race, although it can produce info from which to infer race

27. Assessing Ethical Issues —Social Context Matters • Distinguish between “ancestry informative markers” (AIMS) and “morphology informative markers” • Current trend towards genetic determinism, excessive authority of genetic information • Some ancestries are more socially desirable than others

28. Informational Privacy • What interests are protected by excluding others from our ancestry info? • Prevent discrimination, stigmatization or nepharious uses s/a frame ups (privacy as an instrumental value) • Personal and collective identity, shaping the narrative of one’s life • Right not to know? • Interpersonal relationships • Respect • Cultural beliefs about group membership and origins

29. Informational Privacy cont. • To what extent can law-enforcement policy respect privacy interests while still achieving the goals of suspect profiling? • Should law enforcement personnel disclose that the profile was created through genetic testing for AIMs? • Should law enforcement personnel refrain from using explicitly racial language in conjunction with genetic profiles? • Under what conditions do/should privacy interests trump law enforcement justifications for using a genetic profile (the rights discussion)?

30. Some justice questions • Will forensic profiling with ancestry or morphology informative markers increase or decrease the focus of law enforcement resources on people of some races as compared to others? • If “increase,” then does this mean that some groups will bear an unfair proportion of the burdens, harms or wrongs in return for creating some quantum of public safety or for achieving other penal goals?

31. Justice Questions cont. • Spillover effects of the “scientific” reinscription of 18th C racial classifications… • may be used to justify or exacerbate existing racial inequalities, could increase the burdens of those who are least well off • Pat King, Dangers of Difference

33. Genetics and Race • No genetic markers are only and always found in people of one race and never in people of others—no race defining alleles • Much more within group variation than between group variation • Approx. 85-90% of human genetic variation is found within any small human group • Est. 7-15% btwn any two groups (within continent) • Only about 4-5% of variation is between-continent variation (see, e.g., Rosenberg et al., Science 2002)

34. Races and Ideal Types “In the idealistic typological approach, every race consists of members who possess characteristics that are typical of that race but different from those of all other races… and each representative is separated morphologically by a distinct gap from the members of other races.” • Bennett, 1969, Typological vs Evolutionary Appraoch in Skeletal Population Studies, Am. J. Phys. Anthropology, 407-415 at 413

35. Science and Race: Measurement of Human Differences • By the late 18th C assessments of race had turned from a focus on human similarities to a focus on human differences • “The hallmark of anthropology in the 19th century was anthropometry, and its primary objective was to clarify, document and measure physical differences among human groups.” Smedley, 1993 • “The belief in the Negro’s extinction became one of the most pervasive ideas in American medical and anthropological thought during the late 19th century.” Haller, 1971, Outcasts From Evolution

36. Measuring human differences • Cephalic index • Phrenology • Prognathism • Photometer, color standards • Somatyping • Pschometry

37. Measuring Race • 4 human races (Linneaus, 1753) • 5 human races (Blumenbach, 1781) • 3 human races (Count Arturo de Gobineau, Essay on the Inequality of the of the Human Races, 1855) • 25 races (Snyder, 1930) • 5 races (Carleton Coon, 1962, The Origin of Races) • “The more traits you looked at, the more races you could see.” J Marks, Human Biodiversity, 1995

38. Evolution of Folk Concepts of Race • Proto-race • concept of distinctive human groups • the “other” religiously or culturally defined • goes back to biblical times (at least)