How Much Time Can We Stand?

DNA Evidence and the Principle of Finality in Criminal Law

Hans Harbers University of Groningen

New genetic techniques act upon our perception of time and the way we deal with timethe way we perform time, so to speak. In the context of medical science and practice, for example, DNA tests translate possible future health problems into the present, with the question of what one should do now in order to avoid those problems later on; accordingly, the future is displacedfoldedinto the present. Conversely, the use of DNA tests in legal contexts involves the displacement of the past into the present: genetic identification techniques make it possible to reopen old cases and to solve cold cases, even far beyond statutory periods of limitation. After all, it seems, the truth of DNA is everlasting. Thus, genetic techniques make it more than ever possible to draw the future and the past into the present. At first sight, there is no problem with using DNA tests to fold time; on the contrary, the recognition of past and future increases the rationality of current decisions. But how much do we want to know about the future? And how much of the past do we want to be burdened with? If future and past are endlessly made presentthat is, re-present-ed here and nowthe future loses its openness and uncertainty, and the past no longer comes to an end. Time, then, will lose its expunging effect, possibly resulting in an overload of the present. Are we strong enough to sustain so much compressed time? How much time can we stand, actually? And do we want it? In other words, the initially liberating effects of knowledge about the past and the future might

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reach a turning pointone in which the folding of time turns into the burden of time.1 In effect, what at first sight seems to be a rather innocent issue turns out to have profound cultural and normative consequences. It relates to our being-in-time, to paraphrase Martin Heidegger.2 It affects the way we live in time or, more appropriately, the way we live time. Along with new technologies such as genomics, new ways of performing time are generated and opened up. In that sense, science, technology, and society are indeed profoundly coproduced, as the common thread of Science and Technology Studies (STS) goes even, and in particular, on this basic level of time-orders and orderings.3 In this paper I will demonstrate the time-politics of technology by focusing on a specific site of folding the past into the present: DNA-induced changes in criminal law, in particular changes in statutes of limitation, using the Dutch parliamentary debates on this subject as a particular case in point. Disregarding the political power of (DNA) technologies as coproducers of social and moral order evidently leads to an underestimation of the burden of time imposed by genomics.

The Specificity and Robustness of DNA Techniques

Genomics is not the first and only time-folding technology: printing, the steam engine, and electricity, as well as such information
1. Whether this burden is real or only perceived is not particularly relevant here, since, according to the famous Thomas theoremIf men define situations as real, they are real in their consequencesperceptions themselves are real. Willam I. Thomas and Dorothy S. Thomas, The Child in America: Behavior, Problems and Programs (New York: Knopf, 1928), p. 572. 2. Martin Heidegger, Sein und Zeit [1927] (Tbingen: Niemeyer, 1977). 3. On the notion of the coproduction (or coevolution) of science, technology, and society, see Wiebe E. Bijker and John Law, eds., Shaping Technology / Building Society: Studies in Sociotechnical Change (Cambridge, Mass.: MIT Press, 1992); Sheila Jasanoff, States of Knowledge: The Co-Production of Science and Social Order (London/New York: Routledge, 2004). The thesis that technologies entail a politics is argued in the classic paper by Langdon Winner, Do Artifacts Have Politics? Deadalus 109 (1980): 121136. More recent elaborations of basically the same thesis can be found in Bruno Latour, Pandoras Hope: Essays on the Reality of Science Studies (Cambridge Mass.: Harvard University Press, 1999); idem, Politics of Nature: How to Bring Sciences into Democracy (Cambridge Mass.: Harvard University Press, 2004); Annemarie Mol, Ontological Politics: A Word and Some Questions, in Actor Network Theory and After, ed. John Law and John Hassard (Oxford: Blackwell, 1999), pp. 7489; Andrew Barry, Political Machines: Governing a Technological Society (London/New York: Athlone Press, 2001); Hans Harbers, ed., Inside the Politics of Technology: Agency and Normativity in the Co-Production of Technology and Society (Amsterdam: Amsterdam University Press, 2005); Gerard de Vries, What Is Political in Subpolitics? How Aristotle Might Help STS, Social Studies of Science 37.5 (2007): 781809.

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and communication technologies as the Internet and e-mail, have all substantially contributed to the compression of time.4 Or, to stick to legal and medical contexts, criminal law has always brought the past into the spotlight, whether by means of personal testimony, fingerprinting, or any other medium of representation. And predictive medicine is not exclusively dependent on DNA tests: there are a lot of other means to forecast our future health in order to influence contemporary ways of life (techniques ranging from epidemiology to conventional wisdom). Nonetheless, genomics contributes to the folding of time in two specific ways: First, it modifies time folding in quantitative terms, enabling it to occur more quickly, more frequently, and with greater intensity. Due to the rapid growth of electronically stored DNA information in both law and medicine, past and future can be made infinitely present at any moment, any place and in no timejust click the button. Second, genomics changes the folding of time qualitatively. Formerly, the translation of past and future into the present depended, to a great extent, on socially and culturally shared life worldsthat is, on intersubjectively shared interpretations and frames of meaning concerning signs from the past, and on socially and institutionally congealed patterns of future-oriented behavior and actions. Genomics adds new, science- and technology-based mediators to such processes of timetransition, in terms of both hardware (DNA prints, tests, and proofs) and software (DNA data banks). As a consequence, the folding of past and future into the present becomes more direct and more individual: more direct, since these technical means of time folding are much less dependent on repeated attributions of public meaning and consent; and more individual, since these genetic mediators are personalized, that is, freed from collectively shared traditions and habits.5 In sum, DNA techniques are not exclusive but are nevertheless specific with regard to the folding of time. There is more at stake here than business-as-usual. Moreover, in order to serve as time-folding mediators, DNA techniques require cognitive, social, and cultural acceptance and embedding; in other words, a certain kind of robustness. Genetic techniques operate successfully as predictors of the future in medicine,
4. For the notion of the compression of time (and space), see David Harvey, The Condition of Postmodernity (Oxford: Blackwell, 1989). 5. The notions of translation and mediation stem from actor-network theoryin particular, Bruno Latour, On Technical Mediation, Common Knowledge 3 (1994): 2964. See also idem, Reassembling the Social: An Introduction to Actor-Network-Theory (New York: Oxford University Press, 2005).

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or as evidence about the past in law, only if the validity and reliability of these techniques, originally developed in the laboratory, are no longer contested when used outside the laboratory. Only if they function (or, better yet, are perceived to function) as black boxes can these techniques fold the past and the future into the present. If we may believe a recent MIT volume on DNA and criminal justice, this indeed is the case at present. DNA evidence, according to the authors, has been technically improved to the extent that it is now generally accepted as validnobody in the field opens the black box anymore:
Today DNA technology is no longer on trial; in fact, it has now been rather neatly integrated into the courtroom. This, of course, does not mean that there are no controversial issues surrounding the use of DNA technology in criminal prosecution. What is striking is that the dominant controversies about DNA technology now revolve around the competence of the criminal justice system rather than the reliability of the technology itself. The very precision of DNA technology is, in fact, exhibit 1 in the current trial of the criminal justice system.6

For the time being, I will comply with this practice and leave the black box of DNA closed in order to make the point about the timepolitics of genomics as strong as possible, not weakening it by discussing the technicalities of DNA tests and evidence per se.7 In this
6. David Lazer, ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, Mass.: MIT Press, 2004), p. 4. 7. Surely, these black boxes always can, in principle, and sometimes even should, be reopened. Much effort in constructivist science and technology studies goes into such activity. See, for example, studies into science, law, and forensic practice, challenging widespread assumptions about the certainty of scientific evidence and the authority of scientific spokespersons (This and the following quotations are from the introduction by Michael Lynch and Sheila Jasanoff, eds., to Contested Identities: Science, Law and Forensic Practice, special issue of Social Studies of Science 28 [1998]: 675686). These studies warn us not to take DNA evidence at face value, as indisputable factsand for good democratic reasons. Investigations into the contingencies and uncertainties of evidence production, into the contingent careers of scientific facts and technological innovations, demonstrate the complex interdependence between scientific and social commitments to truth, order, trust and fairness, and unsettle taken-for-granted cognitive authorities. Consequently, these studies produce lessons that should long resonate in democratic societies. Still, I wont follow this constructivist heuristic however sympathetic its democratic undertones. As suggested in the quoted MIT volume (published six years after this special issue) the reliability and validity of DNA evidence have become widely accepted; under these circumstances, constructivism runs the risk of fighting an old warto open up cold cases, so to speak. This primarily backward-looking, debunking strategy of constructivist science and technology studies almost inevitably is at the cost of a more forward-looking analysis of the normative

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respect, I follow my subjectsthe Dutch parliamentarians, who do not open up the box either. On the contrary, as we will see, they stick to what seems to be common practice now: accepting the rigor of DNA evidence as something beyond challenge. The reliability and validity of genetic techniques were left uncontested in the Dutch parliament, and I will avoid challenging them as well, in my case to create space for the central issue of this paper: our genetically modified being-in-time.

DNA, (C)old Cases, and Statutes of Limitation

DNA evidence opens up the possibility of solving unsolved crimesso-called cold cases. Moreover, cases that have been closed can be reopened on the basis of new technical evidence. In both situations a time-honored legal principle comes into play: the notion of finalitythat is, the idea that legal proceedings should be closed off at some point. This notion of finality underlies (1) the restriction in time of both criminal prosecution and execution as established in statutes of limitation, and (2) restrictions in reopening cases: nobody can stand on trial twice for the same crimethe so-called ne bis in idem rule. Nowadays, the technical possibilities offered by DNA of producing new evidence, even years later, has provoked a discussion about the benefits and necessity of such judicial rules, since the principle of finality would only hamper the legal applications of the new genetic techniques. In the United States, the discussion about the principle of finality focuses primarily on the reopening of old cases (post conviction trials), particularly the acquittal of people already condemnedthe famous Innocent Project. This focus on old cases is comprehensible in the American context: mostly it concerns death sentences, so human lives are literally at stake. Moreover, the Innocent Project once more reveals the racist bias in U.S. death penalties, which is a powerful driving force behind the project. But not only old (= solved) cases can be reopened in view of new DNA-based evidence, the same holds true for cold (= unsolved) cases. This technical possibility, however, often is legally blocked by expired periods of limitation; therefore, several states in America have recently extended, or completely abolished, their periods of limitation.8 The same trend
(i.e., time-related) implications of DNA technologies in criminal justice. If we want to detect and discuss those implications, we had better start taking the (however much constructed) facts and their spokespeople seriously. 8. See Margaret A. Berger, Lessons from DNA: Restriking the Balance between Finality and Justice, in Lazer, DNA and the Criminal Justice System, (above, n. 6), pp. 109131.

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can be observed in Europe: here too, the principle of finality is being revisited, mostly in terms of changing statutes of limitations.9 Let us follow one of these revisions in detail, the Dutch case, to see what happened here in terms of timethe way the past is perceived and handled, made present here and now, and mobilized for future actions. After many years of discussion, several revisions, and a series of amendments, the private members bill on the abolition and/or extension of periods of limitation submitted by Boris Dittrich (SocialLiberal PartyD66) and Sybrand Van Haersma Buma (Christian Democratic PartyCDA) was unanimously adopted by both the Dutch House of Representatives (Tweede Kamer) and the Senate (Eerste Kamer) on February 10 and September 2, 2005, respectively, and came into effect on January 1, 2006. According to this bill, the period of limitation for crimes bearing a prison sentence of more than 10 years will be extended from 15 to 20 years. The existing period of limitation of 18 years for crimes carrying a sentence of lifelong imprisonment will be abolished completely. Moreover, the legal possibilities of discontinuing one period of limitation in order to start a new one were widened substantially; in effect, this practice means that periods of limitation can be doubled, since the so-called bouncing of a period is mostly asked for just before its expiration.10 Dittrich and his colleagues used several arguments in support of their bill, most of them widely accepted by the other members of parliament. Leaving aside all kinds of legal details, three arguments were decisive. First, this bill is meant to reduce the supposed cleavage between legal norms and a postulated common sense of justiceas expressed by the growing phenomena of white marches and silent processions. Several members of parliament refer to social unrest and anger about the fact that murderers, rapists, and other major offenders cannot be prosecuted after periods of limitation have expired. Those who can be sentenced to life imprisonment, should indeed be prosecuted lifelong, as Aleid Wolfsen (Labor Party PvdA) summarizes this alleged common sense.11 Ergo, the first argument goes like this: do away with statutes of limitation for these crimes, since such (perpetrator-)liberating provisions are no longer socially accepted.
9. Insofar as they exist at allthe U.K. legal system, for instance, never established statutes of limitations. 10. On the other hand, the new law allows bouncing only once; under the old law, bouncing was legally much more restricted, but numerically unlimited. 11. Minutes, Tweede Kamer, February 2, 2005, TK 45-2873/4.

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The second argument is related to the first. The change in law would fit the current trend to better acknowledge the sorrow and pain caused by violent crimes, institutionally translated into efforts to improve the position of victims and surviving relatives in legal practices and regulations.12 Many representatives underline the initiators remarks about the expanding mediatization of these crimes: images, stories, and testimonies are increasingly made public, and endlessly repeated, stored, and brought up again. Consequently, Dittrich and colleagues argue that societys collective memory is substantially improvedunsolved crimes will not be forgotten any longer. Cold cases are kept warm, waiting for prosecution and execution.13 Though broadly accepted in the parliament, both arguments are fairly contestable. Take the first argument. None of the observations made about commonsense justice and social discontent were empirically underpinned, either in the Explanatory Memo or during the parliamentary debate. This failure to provide any evidence is far from surprising, since scientific research into the public perceptions of crime and punishment is either inconclusive or contradictory. There appears to be no relation between victimization and punitive attitudes, and the general public has milder views on the punishment of crimes and criminals than do legal professionals. If there is any discrepancy between public opinion and legal practice at all, then, as these studies show, this stems not so much from public clamoring for revenge and higher penalties, but from the legal systems inability to restore social rest and cohesion by means other than punishment, imprisonment, deterrence, and retributionfor example, by restitution, compensation, and reconciliation. Victims and surviving relatives explicitly want, first and foremost, clarifications and explanations about what happened to them and why. They also want the perpetrator to know their fear and pain, their hurt as a result of the offense. Both are apparently necessary conditions for surmounting their circumstances and experiences, and resuming a more or less normal life.14
12. Dittrich also supported experiments involving the victims right to speak in the courtroom. 13. See Boris Dittrich and Sybrand Van Haersma Buma, Revised Explanatory Memo, Tweede Kamer 20032004, Document 28 495, no. 7, p. 7. 14. See, in general, several studies in the field of victimology and ongoing discussions about restoration justicee.g., Eleanor Hannan Judah and Rev. Michael Bryant, eds., Criminal Justice: Retribution vs. Restoration (Binghamton, N.Y.: Haworth Press, 2004). On the relation between victimization and punitive attitudes in particular, see Robert F. Rich and Robert J. Sampson, Public Perceptions of Criminal Justice Policy: Does Vic-

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Thus, the first argument in favor of the bill is rather populist, an appeal to common sense. Now, populism in itself is a fairly contestable strategy in politicsespecially in the politics of lawand this is all the more so when populism, as in this case, is empirically misguided, or at least unsupported. The parliamentary observations of social discontent in response to legal practices and prison sentences are highly performative: what is said to be factually the case is actually realized by persistently repeating it. Here, indeed, elected representatives literally re-present the people: they actively create an image of whom and what they are supposed to representnamely, terrified, revenge-eager, and safety-and-securityseeking citizens. Thus, the repeated appeal to an unfounded reality in this parliamentary, public context is itself a first-order political act: it functions to legitimize the priority given by the legislators to a (perceived, performed) common sense of justice over current legal norms and practices. After all, presupposing that a gulf exists between public opinion and juridical practice, politicians could have reasoned the other way around; instead of adjusting legal norms to common sense, they could have challenged that very (projected) common sense. Logically that would have been just as plausible though not politically viable, given the recent shift to law-and-order policies in the Netherlands as in most Western states.15 Indicative of this shift was the persistent process by which the bill in question was ultimately passed: Within less than four years, the proposed change in law was developed and sharpened time and again, while initial hesitations and protests, both inside and outside the parliament, gradually died away. During the passages of the bill in the Dutch parliament, an amendment by Joost Eerdmans, member of the
timization Make a Difference? Violence and Victims 5 (1990): 109118; their answer is a clear-cut no, as confirmed by Andr Kuhn, Attitudes towards Punishment, in Understanding Crime: Experiences of Crime and Crime Control, ed. Anna Alvazi del Frate, Ugljesa Zvekic, and Jan J. M. van Dijk (Rome: United Nations Publications, 1993), pp. 271288. For more on general attitudes about punishment, see Klaus Sessar, Restitution or Punishment: An Empirical Study on Attitudes of the Public and the Justice System in Hamburg, EuroCriminology 8/9 (1995): 199224. See also Klaus Boers and Klaus Sessar, Do People Really Want Punishment? On the Relationship between Acceptance of Restitution, Needs for Punishment, and Fear of Crime, in Developments in Crime and Crime Control Research: German Studies on Victims, Offenders, and the Public, ed. Klaus Sessar and Hans Jrgen Kerner (New York: Springer, 1991), pp. 126149. 15. See, e.g., David Garland, Culture of Control (Oxford: Oxford University Press, 2002). While this shift was boosted internationally by 911 and the war on terror, the political murders in the Netherlands of the right-wing, populist politician Pim Fortuyn in 2002 and the publicist and filmmaker Theo van Gogh in 2004 played an important role in the cultural and political trend toward safety and security.

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populist right-wing party List Pim Fortuyn and a self-professed genuine Pimmel, proposed the abolition of all statutes of limitation, a suggestion that was given serious consideration. Although this proposal was eventually rejected, initial steps were taken immediately afterward to lengthen prison sentences for certain crimes (e.g., manslaughter, rape, terrorist activities), so that these were exempted from any period of limitation. What about the second argument concerning the inconsolable pain of victims due to the improvement of collective memory? Again, this argument was not empirically supported in the parliament by any reference to scientific research. But that is less reprehensible in this case, since it is indeed easily conceivable that the increasing presence and influence of the media improves our collective memory. More than that, this phenomenon in itself illustrates the time-politics of technology. The media are crucial for the compression of time and space: without them, we could not cross the global village in no time. No doubt about that, but that is not to say that we should necessarily embrace this phenomenon normatively. The improvement of collective memory does not automatically weaken the moral content of periods of limitation (that is, of the principle of finality). Acknowledging the time-politics of media-technology is not the same as losing oneself in technological determinism. Most decisive, however, was the third argument in favor of the bill. Time and again Dittrich and his colleagues referred to innovations in forensic techniques, particularly the use of DNA research and evidence. With these techniques, (c)old cases can still be solved and decided upon. Statutes of limitation are only annoying obstacles in this new situation. If solving a crime is technically possible, then why not do so, the initiators argue: It must be possible for modern techniques to have their influence on criminal justice and on the law of criminal procedure, their first Explanatory Memo literally says.16 But subsequently this qualification of being possible is discreetly ignoredaltering the argument from a factual option into a normative necessity: techniques should have their influence. During the parliamentary treatment of the bill, Dittrichs fellow party member Lousewies Van der Laan shows even fewer reservations on this point: Sometimes, she says, it is possible to prove a case many years after the crime has been committed. Thats a very good reason to support this proposal.17 Almost everybody in the
16. Boris Dittrich and Sybrand Van Haersma Buma, Explanatory Memo, Tweede Kamer 20012002, Document 28 495, no. 3, p. 4. 17. Minutes, Tweede Kamer, Februrary 2, 2005, TK 45-2877.

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parliament swallowed this naturalistic fallacyas if what is normatively advisable (ought) directly follows from what is technically possible (is). It was the then minister of justice, Piet Hein Donner, who corrected the logical mistake that the bills sponsors were making: changes in statutes of limitation are a political, not a technical issue, he noted.18 This is not to say, however, that Donner acknowledges any politics of technology of the type described above. On the contrary, the minister merely pointed out that we cannot jump from technical possibility to political/normative necessity without having a reason to make such a move. Right does not automatically lead to Might! Otherwise, we would lapse into technocracy, that is, the erosion of politics by technical and instrumental arguments. The technocratic thread inherent in the rationalization process inspired Max Webers argument for separating science and politics.19 Donners remark should be interpreted according to this Weberian tradition: the separation of facts and values, of science and politics, favors not only science (Webers famous principle of Wertfreiheit) but also politics (political deliberation and the formation of will should be free[d] from technical and instrumental considerations).20 So, Donners admonition to Dittrich and his colleagues acknowledges the (f)actual perversion of science and politics. As a consequence, however, it affirms this separation as the norm. In other words, the notion of a naturalistic fallacy is itself based on the demarcation of Is and Ought, of facts and values, science and politics. Dittrich and others suggest that techniques are neutral instruments. Once this suggestion is accepted, and even Donner accepts this, it is indeed a logical error to draw normative conclusions from the availability of those instruments. Application and implementation should be based on political choices, not on the simple availability of the instruments. That is what the minister meant when he referred to the political nature of the decision to change statutes of limitation. But, as soon as we no longer accept this Weberian demarcation a priori, as is implied by the notions of coproduction and politics of technology, the discussion cannot simply be
18. Ibid., TK 45-2926. 19. See Webers twin-lectures about science and politics as professions: Max Weber, Wissenschaft als Beruf (1917/1919), and Politik als Beruf (1919), in idem, Gesammtausgabe, vol. 17 (Tbingen: Mohr, 1992). 20. See also Max Weber, Der Sinn der Wertfreiheit der soziologischen und konomischen Wissenschaften, in idem, Gesammelte Aufstze zur Wissenschaftslehre (Tbingen: Mohr, 1973), pp. 489540.

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closed off by a logical argument. For that reason, we need to delve deeper into the story of DNA techniques and criminal law in order to reveal that the relation between science and politicsor, in this case, technology and moralityis much closer and more complicated than is suggested by the application-and-implementation issue.

DNA, Finality, and the Politics of Technology

Let us follow the ministers track with regard to the politics of law in this casethat is, the normative considerations concerning statutes of limitation. What is at stake here, especially in terms of the relation between the present and the past? To answer this question we reach backin conjunction with the bills sponsorsto 1881, the year that the Dutch statutes of limitation were established.21 Besides all kinds of other reasons, which were highly contested and therefore soon dropped, the legislating authorities used three decisive arguments to support the introduction of periods of limitation in the criminal codeall of them related to the so-called expunging effects of time. First, the diminishing need for punishment: penalization is no longer sensible after so many years. Second, the blurring of evidenceparticularly personal testimonies: memories fade away; thus, the establishing of convincing proof will become more and more difficult. Third, the endured pain and sorrow as surrogate punishment: the not-convicted perpetrator actually receives his deserved punishment in some other way. Now, anno 2005, the sponsors of the law-change claim that the second argument, the blurring of evidence, is undermined by technical innovations, in particular DNA evidence. And they reject the third argument as a nineteenth-century artifact: at that time the necessity to flee (e.g., to a foreign country) was indeed a kind of punishment; nowadays, given all kinds of new communications media and transport systems, this is no longer the case. Consequently, Dittrich and his colleagues argue that two of the three arguments have actually expired. There is something to be said for this standpoint. For this reason, we leave these arguments untouched, accepting them just as all members of parliament did. The most important argument, however, in support of the original rules of limitation was the first one: the diminishing need for punishment. This argument relates to the above-mentioned principle of finality, the conviction that trials should be concluded definitively at some time or other. This principle institutionally summa21. See Aloysius Jacobus Antonius van Dorst, De Verjaring van het Recht tot Strafvordering [The Limitation of the Right to Prosecute] (Arnhem: Gouda Quint, 1985).

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rizes cultural notions such as the value of forgiving and forgetting for the sake of tranquility, social order and peace of mind. Perhaps terms like transience or finiteness are even more appropriate, since they emphasize the normative dimension of those notions to a greater degree than finality; things pass by, run out, and come to an endthank goodness. For this general, rather vague, but nonetheless very strong feeling, we use a series of expressions in our everyday, commonsense language: Time heals all wounds, Let bygones be bygones, Whats done is done, Lets call it a day, Dont open old wounds. These expressions underline the value of leaving the past alonedont look back, but start over. The past has passed. Now we live in another time. Perpetrators may have drastically improved their lives. Suppose, in the absence of any statute of limitation, an eighty-year-old is convicted for a crime committed when he or she was eighteenare we indeed condemning the same person? As a result of DNA techniques, identification might have become independent of time, but this is not to say that it holds for identity as well. The proponents of the private members bill rather rashly ignore such considerations, which were the basis of the original, longstanding statutes of limitation. The notion of transience makes way for the idea that guilt and penance, crime and punishment, do not fade away; they are not expunged by time. Time does not heal all wounds, as the opening sentence of Wolfsens contribution to the plenary discussion in the Dutch House of Representatives states.22 And many members of the House have repeated his words, including Dittrich and Van Haersma Buma: In principle the initiators take the position that in case of very serious crimes, the pain and sorrow imposed upon the victims, surviving relatives, and society in general should outweigh the need to close an unsolved case at a certain moment, we read in the Explanatory Memo.23 As if the opposite never can happen: reopening a case may cause more pain than relief, which was one of the main arguments in favor of the original statutes of limitation. And, insofar as empirical evidence counts at all in such normative issues, this argument still holds in the light of the aforementioned studies into public perceptions of crime and punishment.24 According to these studies, victims and relatives are not fixed on everlasting revenge and severe penalties. If they prefer
22. Minutes, Tweede Kamer, February 2, 2005, TK 45-2873. 23. Dittrich and Van Haersma Buma, Revised Explanatory Memo (above, n. 13) p. 2. 24. See above, n. 14.

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to keep a cold case open or to reopen an old one (even beyond periods of limitation), it is for reasons other than those suggested by the initiators of the billfor example, for clarification and explanation, rather than vengeance and punishment. Restoration is the key word here, much more than retribution. As already mentioned, in addition to this normative argument the initiators of the bill also use a more empirical and practical argument against the idea of finality, transience, and the diminishing need for punishment. Even if you would like to forgive and forget, Dittrich and others argue, this is no longer possible: Television, newspapers, and other mass media heavily contribute to the fact that society no longer forgets old and unsolved cases; the collective memory is substantially improved by the media.25 An empirical statementthough in itself very defensible and illustrative of the time-politics of technologyis used here again in support of a political stance, taken from the very beginning onwards: It should be possible that an unsolved crime can always lead to prosecution and conviction of the suspect, we read on the first page of the Explanatory Memo.26 Transience gives way to imperishability; finiteness to infinity; finality to limitlessness. The word always in this sentence has great significance: in all ways and at all times, nothing will be dismissed; the past should always be re-present-able. Only one member of the parliament, the Socialist Party (SP) Senator Tiny Kox, displayed an awareness of the cultural and normative depth of the issue in question:
I advocate a certain amount of sympathy and respect for the norms which once grounded our criminal lawnorms which in my opinion have not yet expired. . . . At a convenient time, society should have the chance to put things right. Whats done is done. It sounds like platitudes, but if we remove these wisdoms from social life, nothing will remain intact. Then we will create a hypersensitive societyand nobody is looking for that.27

This was a fascinating remark, the more so since the idea of a hypersensitive society suggests that the abolition of notions such as finality and finiteness will change not only our relation to the past, but also the way we handle the future, the way we do, or enact, the future.28 Keeping the past permanently presentusing
25. Dittrich and Van Haersma Buma, Revised Explanatory Memo (above, n.13), p. 7. 26. Ibid., p. 1. 27. Minutes, Eerste Kamer, 2005, September 6, EK 33-1552. 28. The notion of enactment is elaborated in Annemarie Mol, The Body Multiple: Ontology in Medical Practice (Durham/London: Duke UP, 2002).

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DNA data banks, for exampleis in itself an act that anticipates possible future events. The very notion of prevention, also in legal contexts, is based on this double folding of both past and future into the present, possibly leading to an overload of information, to hypersensitivity. However, nobody reacted in parliament to this remark; the point was lostand Kox and his Socialist Party also voted for the bill. Thus, except for this single marginal remark, the principle of finality has given way in the Dutch parliament to lifelong pursuit and revenge. No pardon and no oblivion, dont forget and dont forgive, serious crimes never can and never should be deleted; on the contrary, keep everything alivenow and immediately. That is the general tenor both in the House of Representatives and in the Senate: keep the past omnipresent. Consequently, under the veil of the efficient use of new criminal investigation techniques, launching a misplaced populist appeal to the common sense of justice, and referring to the supposed inevitability of media-logics, a new conception of time has entered criminal justicenew not only in a legal-institutional sense, but also in a moral sense.29

Conclusion
Genomics might be compared to revolutionary scientific and technological innovations like printing techniques, the steam engine, electricity, and information and communication technology: in all these cases, developments in scientific knowledge and technology have deeply changed the temporal and spatial order of society. Accordingly, science and technology are much more than just neutral instruments by which human beings shape their personal and common lives. Revolutionary innovations in science and technology cause human beings and their societies themselves to be at stake, as the very definitions of humanity and the good life are subject to review. Science and technology not only improve the means of action but also act upon the ends. Right from the outset, new bodies of knowledge and new technological designs incorporate new forms of social and moral ordernew practices, new patterns of action, new (more or less) shared meanings. The same is true in this case. New forensic techniques, based on genetic knowledge, do not just enlarge the range of instruments for gathering legal evidence, as Dittrich and his colleagues seem to sug29. For the moral aspects of the way we deal with the past, see also Avishai Margalit, The Ethics of Memory (Cambridge, Mass.: Harvard University Press, 2002)although he focuses on remembering, more than on forgetting, as a condition for forgiveness.

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gest. And the politics of these technologies is not, as Donner implies, restricted to questions addressing the ways in which, and the conditions under which, they are to be applied and implemented. Neither should we, as constructivist science and technology scholars tend to do, analyze this politics of artifacts first and foremost at the artifacts place of birththe laboratory. On the contrary, genetic techniques, especially when they have become mature and blackboxed, and thus travel around rather freely, perform, so to speak, new time-orderings: they fold the past and the future into the present, independent of memories or other cultural mediators. Thus, one of the most basic dimensions of social and cultural ordertimeis touched upon by these technologies. They intervene in and change our being-in-time. Although new DNA techniques give us more knowledge about and insight into the past and the future, we can fully benefit from these innovations only if we simultaneously investigate the changes they bring about in our cultural, moral, and social codes and patterns. A too-tempestuous pursuit of new genetic techniques will lead to an overload in the present: past and future become folded into the present to the extent that we run the risk of collapsing under its pressure. Of course, time does not always heal all wounds, and the future is not a fully open book: that is a much too nave and romantic thought, and an underestimation of the potencies that genomics generates. This is not to say, however, that it would be better to discard those time-honored notions and ignore them in favor of the technologically mediated omnipresence of the past and the future. To paraphrase Milan Kundera, a certain lightness of being should be maintained in order to keep it bearable.

Acknowledgments
This publication is part of the research project Gene-Time: Genomics and the Construction of Time (project no. 050-32-002), funded by the Netherlands Organization for Scientific Research, subprogram The Societal Component of Genomics Research. For their comments, I would like to thank Marli Huijer, the anonymous referees, and the participants at the Shifting Politics workshop (Department of Philosophy, University of Groningen, April 2122, 2006).

Contributors

Nik Brown is Senior Lecturer in Sociology and Deputy Director of the Science and Technology Studies Unit at the University of York UK. He has published widely on the sociology of the biosciences with books including New Medical Technologies and Society (with Andrew Webster, Polity Press, 2004) and Contested Futures: a sociology of prospective techno-science (edited with Brian Rappert and Andrew Webster, Ashgate, 2000). Hans Harbers is Associate Professor in Philosophy of Science, Technology & Society at the Faculty of Philosophy, University of Groningen, The Netherlands. His research concerns the many interfaces between knowledge, power and morality. Recently he published Inside the Politics of Technology (Amsterdam University Press, 2005). Marli Huijer is Senior-researcher at the University of Groningen, Department of Philosophy, and Associate Professor at The Hague University for Professional Education. She specializes in philosophy, time and biomedical practices. She is author of De Kunst Gewoon te Leven. Aids en de Bestaansesthetiek van Foucault (The Daily Art of Living. Aids and Foucaults Aesthetics of Existence. Boom Publishers, 1996) and Factor XX. Vrouwen, Eicellen en Genen (Factor XX. Women, Egg Cells and Genes, Boom Publishers, 2004with K. Horstman). She is currently working on a volume on time and genomics (with H. Harbers).

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