The Second Generation of Racial Profiling

31 Pages Posted: 19 Sep 2010 Last revised: 15 Dec 2018

See all articles by Dov Fox

Dov Fox

University of San Diego: School of Law

Date Written: September 18, 2010


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.

Keywords: Equal protection, criminal investigations, suspect identification, forensic DNA phenotyping

JEL Classification: K14, J78

Suggested Citation

Fox, Dov, The Second Generation of Racial Profiling (September 18, 2010). 38 AM. J. CRIM. L. 49 (2010). Available at SSRN:

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

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