Constitutional Law

In New York, the More DNA, the Better?

By Suzanne Ito, ACLU

If countless episodes of TV crime shows are to be believed, matching DNA evidence taken from a crime scene to a DNA sample in a law enforcement database is a slam dunk. Got a match? Got the perp? Case closed.

But as is usually the case, reality is rarely reflected on TV. But could someone tell New York Gov. David Paterson that? On June 1, he introduced the All-Crimes DNA Bill, which would require all New Yorkers convicted of any penal offense — including youth — to submit a DNA sample for inclusion in the state's DNA databank.

That means even low-level misdemeanor offenses like shoplifting or adultery (a crime that Gov. Paterson himself has admitted to) will require collection of a DNA sample.

This kind of legislation, which has tough-on-crime appeal, is exactly the kind that lawmakers love, especially in an election year. But as a nine-page Q&A released by the New York Civil Liberties Union (NYCLU) last Tuesday explains, Gov. Paterson's bill is also tough on civil liberties, and its claim that it will make New Yorker safer is unproven.

New York established its DNA Identification Index in 1994. Fifteen years later, there has been no comprehensive, rigorous, independent study of its effectiveness at helping to solve crime or garner convictions. NYCLU reports:

Bruce Budowle, one of the nation's preeminent experts on forensic DNA and until 2009 one of the FBI's top DNA scientists, asserts that there is insufficient data on which to determine the actual value of DNA databanks in solving crimes.

In fact, an expanded DNA database could actually have the opposite of its intended purpose and make the state less safe. NYCLU points to the British Journal of Criminology's study of that country's ever-expanding DNA database (PDF):

...Insufficiently ‘forensically aware' police officers may resort to DNA evidence in lieu of proper detective work...[L]iterature on ‘case construction' inform[s] analysis of potential pitfalls of early reliance on DNA results, which may increase the risk of ‘tunnel vision' in criminal investigation...a phenomenon recognized as a cause of wrongful convictions.'

Another primary concern for civil libertarians is "familial searching," or "guilt by birth" as we've called it in the past. Familial searching allows law enforcement to investigate family members of an individual whose DNA is already in the database. In these instances, only a near-match is used, making all blood relatives of the person in the DNA database potential criminal suspects. This is particularly a problem for minority communities because, as the paper points out, 77 percent of those incarcerated in New York are African-American or Latino. Familial searching exacerbates the existing bias of the criminal justice system. As a result, the use of DNA databases "as a law-enforcement strategy will be enforced primarily in communities of color."

So at best, Gov. Paterson's proposed legislation is a shot in the dark at improving crime-solving. At worst, it's an expensive boondoggle with dubious benefit, not ideal in a time when New York can barely pay its school teachers and bus drivers.

Full post as published by Blog of Rights on June 21, 2010 (boomark / email).