The Brooklyn Rail

JUL-AUG 2010

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JUL-AUG 2010 Issue

ALBANY’S DNA EXPANSION: A Foolproof Solution?

On June 1st, amid talk of teacher layoffs, hospital closings, and MTA cuts, Gov. David Paterson took to a microphone in Manhattan and announced the All Crimes DNA Bill, which he described as “a small investment in dollars, and a huge investment in the security and safety of New York State.” The law would force any New Yorker convicted of a crime to provide a DNA sample to authorities, to be recorded in the state DNA database. This would apply to “youthful offenders”—age 16, 17, or 18—and would include such low-level misdemeanors as loitering, graffiti, and shoplifting. Failing to submit a DNA sample would become a Class A misdemeanor, generally punishable by up to one year in jail.

Gov. Paterson characterized the bill as an effort to cut through “a lot of government red tape” and to fix major flaws in the criminal justice system, from unsolved crimes to wrongful convictions. “We have technology and we have data that can help to prevent crimes that are about to be committed, solve crimes that were committed sometime ago, and exonerate people who are falsely accused,” he said at his press conference, flanked by D.A.s from all five boroughs.

If there was any objection to Paterson’s proposal from lawmakers or political candidates, no one spoke up. In fact, alternative versions of the DNA expansion were being simultaneously peddled by lawmakers, including a bill from Sen. Jeffrey Klein (D-Bronx) that would require all New Yorkers arrested for a felony to hand over DNA. A bill by Brooklyn Assembly member Joseph Lentol focuses on wrongful convictions and has the support of Sen. Eric Schneiderman (D-Manhattan), who is running for attorney general.

Indeed, like so much tough-on-crime legislation, the measure was widely embraced as a moral imperative. Kate Hogan, President of the State District Attorneys Association, called it “simply unconscionable that New York State still neglects to collect DNA from everyone convicted of a penal law crime.” In fact, despite the rhetoric, it shouldn’t be surprising: neither does any other state in the country.

“We would be the first state to require DNA from everyone convicted of a penal offense,” says John Caher, Director of Public Information of New York’s Division of Criminal Services in Albany. Although all 50 states and the federal government have passed laws authorizing DNA testing of convicted felons—and some 21 states require testing of anyone merely arrested for a federal crime—New York would be the first to make it standard practice to create DNA profiles for anyone found guilty of a crime. “We’re not following the lead of any other state,” says Caher, describing the legislation as “a very, very clean bill that does one very simple thing: It expands the DNA databank.”

But this simple idea brings real-life complexities that should give legislators pause. From backlogged DNA samples to falsified forensics reports, the unintended consequences of widespread DNA collection across the country call into question how productive Paterson’s “investment” in the safety of New York State will be.

Two weeks after Paterson’s press conference, the New York Civil Liberties Union (NYCLU) released a nine-page document titled “Unanswered Questions about Proposals to Expand the State’s DNA Databank,” which warned that the All Crimes DNA Act is being advanced “without a single legislative hearing, without a word of public debate, and without a showing of findings or data regarding the proposal.”

“It is fair to assume that after a political calculation has been made, there is not much to talk about,” the NYCLU statement read. “In this information void, the guiding policy prescription regarding the databank has been reduced to simplistic policy formulation: The more DNA, the better.”

The NYCLU cited recent research and data that pose important questions regarding the potential corruptibility of the DNA database—from human error and inefficiency to lack of oversight or accountability. Indeed, while growing the DNA databank is seen by many as a public safety no-brainer, in the 15 years since New York’s database was first created, there has never been a comprehensive review of how effective it has actually been in fighting crime.

The same is true of the national DNA database or Combined DNA Index System (CODIS), established by Bill Clinton and expanded under Bush. Bruce Budowle, a former DNA scientist for the FBI who helped design it, has said that “a better accounting of how well CODIS performs is needed,” including whether or not “cold hits”—DNA samples taken from a crime scene and matched to a record in the database—are actually leading to prosecutions. Among his questions are whether crime laboratories are “overworked” and whether sufficient resources exist to carry out investigations based on DNA hits.

For Robert Perry, Legislative Director for the NYCLU, the problem is not even that such questions remain unanswered. It’s that they haven’t even been asked. “There has not been any serious probing into what we are building,” he told me from Albany in late June, as lawmakers and lobbyists scrambled before the start of the summer break.

The eagerness to expand the New York database parallels the rush to establish it in the first place. “When the databank was created, there was no hearing, there was no floor debate. It was created at the staff level and simply voted on as a fait accompli,” Perry recalls. At minimum, Perry says, the expansion of New York’s DNA database must be accompanied by a system for oversight, ideally in the form of an independent body with sufficient resources and a mandate to do its job. But, he adds, “these things are not looked kindly upon. Every time [legislators] see ‘task force’ they see expenditure.”

Nonetheless, the NYCLU has issued a formal draft proposal to make such oversight either a condition for enactment of the DNA expansion, or as a part of the bill itself. “We’re not Luddites at the ACLU,” Perry says. “Under optimum circumstances, DNA can be a valuable forensic tool. What we argue is that circumstances are often not optimal.”

There’s no question that DNA evidence has played a critical role in freeing the innocent—particularly in New York. This past February, 60-year-old Freddie Peacock from Rochester became the 250th DNA exoneration in the United States, after spending 20 years in prison and an additional 28 years on parole for a rape he did not commit. That month, the Innocence Project reported that New York is the state with the third highest number of DNA exonerations in the country.

Then, in April, another Rochester man, Frank Sterling, was exonerated, 18 years after being convicted of a murder he did not commit. Most recently, on June 21, Douglas Pacyon of Cheektowaga, NY, became the latest DNA exoneree, cleared of a 1984 rape.

But if the alarming number of wrongful convictions in New York raises questions about competency and corruption among the same authorities who would be in charge of handling newly expanded DNA collection, no one seems to be making the connection.

The NYCLU cites a 2009 report by the State Inspector General that revealed a case of forensic analyst working in a state police crime lab who falsified test results over the course of 15 years. “The analyst had not been properly trained; his superiors not only condoned the fraudulent conduct, but attempted to conceal it.” A similar revelation came out in a 2007 report, which “concluded that police department lab analysts had falsified forensics tests and that the NYPD had failed to adequately investigate and report that evidence had been compromised.”

On the national level, Stanford criminologist William C. Thompson has found “an unexpectedly high” rate of mix-ups and “cross-contamination,” which could actually lead to more wrongful convictions by switching an innocent person’s DNA with that of a guilty person. Even more troubling: examples of analysts faking results in order to cover up mistakes—perhaps in part because, as the Chicago Tribune reported in 2004, “the discovery of even a single flawed analysis” in a given lab “raises the prospect of re-examining hundreds, if not thousands, of cases. In many jurisdictions, the task of re-evaluating that many cases is so daunting that authorities have declined to conduct broad audits, despite evidence that analysts have committed errors or engaged in fraudulent practices.”

Then there is the problem of backlogs. Legislators might consider the nightmare in Los Angeles last summer, when less than a year after enacting a new policy of testing all rape kits for DNA (instead of just those recommended for testing by investigators), the L.A. Sheriff’s Department was forced to announce that it was temporarily suspending DNA testing in sexual assault cases. Broke and short-staffed, the forensics lab couldn’t keep up with its growing number of DNA records. The new policy had been established under intense political pressure, but it was “never realistic,” one supervisor confessed to the L.A. Times.

In New York, according to John Caher of Criminal Services, the expanded DNA collection would add roughly 48,000 records to the databank per year. While Caher states that “we don’t have a backlog,” accelerating DNA collection seems to be a good way to create one. What’s more, according to the NYCLU’s Robert Perry, “the regulatory scheme that we have [to oversee DNA labs] was put in place in 1994. At that time it was considered visionary. Now it is an anachronism. It simply isn’t up to the task of providing the rigor of review and analysis of how these labs are functioning.”

Beyond practical questions of effectiveness and corruptibility, fundamental civil liberties questions have barely made it into the discussion. Nor has the fact that, in a state where 77 percent of prisoners are black or Latino, the DNA database will increasingly reflect this bias. “To the extent error and fraud is involved in the use of forensic DNA, the individuals harmed will most often be persons of color,” says the NYCLU.

Those who claim that only guilty persons will be affected by the DNA expansion aren’t quite right, either. Last December, the New York State Commission on Forensic Science voted to authorize police to “investigate the family members of an individual whose DNA does not precisely match crime scene evidence, but is a near match,” according to the NYCLU. Called “familial searching,” it hinges on the idea that a partial or close match between a DNA sample in a databank and DNA left at a crime scene could mean that a relative was responsible for the crime.

Perry calls familial searching “a profound expansion of the use of forensic DNA,” and the forensics commission’s policy a “really provocative proposal that’s been moving under the radar.” In his opinion, the commission is overstepping its authority, but legislators have yet to protest. Although the All Crimes DNA Act does not mention familial searching specifically, such an increase in DNA collection would open the door for many more innocent blood relatives implicated in a criminal investigation.

Despite all these questions, New York lawmakers seem ready to wave the DNA expansion through without blinking an eye. “This is a frenzied place and legislators are preoccupied with not only their own bills, but with a budget that is probably the most challenging in 50 years,” says Perry. “By and large, these guys—they are mostly guys—just seem incurious. They just have not thought about these issues.”


The Brooklyn Rail

JUL-AUG 2010

All Issues