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The Move to Expand DNA Testing

by Aubrey Fox, May 21, 2007
 

Governor Eliot Spitzer’s proposal to greatly expand the state’s database of DNA samples along with the exoneration last week of a New Jersey man who served 19 years in jail for the gruesome murder of two children has reopened debate about the use of a technology that could fundamentally change how justice is administered in New York City.

Spitzer wants to require testing of all individuals found guilty of felonies or misdemeanors, in state prison or on parole or probation, while making it easier for defendants to use DNA sampling to prove their innocence. In attempting to pass legislation that has been blocked several times in recent years by the state Assembly, Spitzer seeks to emphasize the role that DNA testing can play in freeing the innocent, as well as in fighting crime. It’s a powerful combination, given recent high-profile wrongful conviction cases, such as Alan Newton of the Bronx, freed by DNA sampling after serving 22 years on a rape charge, and Scott Fappiano, erroneously imprisoned in 1983 for the rape of a Brooklyn woman, that have rocked New York’s criminal justice community.

The legislation includes measures that make it easier for defendants and judges to request DNA testing. It would also create a state office to examine wrongful conviction cases in New York State and propose reforms.

Spitzer’s bill has the support of Brooklyn Democrat Joseph R. Lentol, chairman of the Assembly’s committee on criminal justice issues. Other prominent players, such as Assembly Speaker Sheldon Silver, and Barry Scheck and Peter J. Neufeld of the Innocence Project, which has used DNA testing to free 23 wrongfully convicted New Yorkers, have not yet announced a position. The New York Civil Liberties Union has come out against the bill, citing concerns about the state’s ability to set, and enforce, consistent rules for the storage and processing of DNA materials.

Passage of the legislation would have a dramatic impact on New York City, which has invested over $250 million in a state-of-the-art forensic laboratory in Manhattan. Mayor Michael Bloomberg and his police commissioner, Raymond Kelly, enthusiastically support Spitzer's proposal. In the past, Bloomberg has argued for expansion of the state’s DNA sampling program on the grounds that many people who commit minor crimes also commit more major offenses and so that having DNA from so-called “petty criminals” would help solve bigger cases. He and Kelly have argued that the state’s existing restrictions on DNA sampling restrictions hurt the city’s ability to use DNA to reduce crime rates even further.

Regardless of the bill’s prospects for passage, DNA testing – only a little more than two decades old – offers a potentially transformative crime fighting technology. What may be less clear to New Yorkers are its benefits and drawbacks.

A NEW TOOL

Deoxyribonucleic acid, or DNA, is a molecule that can be found in all cells and is left behind in blood, saliva, sweat, semen, hair and skin, biological evidence that can often be found at crime scenes. DNA testing was developed by geneticist Alec Jeffreys of Leicester University in England in the early 1980s. He discovered that DNA could be used to isolate a “genetic marker” unique to each individual.

Jeffrey’s new technique was employed almost immediately to help solve two notorious rape and murder cases in the nearby countryside. After a 17-year-old confessed to one murder but not the other, the police asked Jeffreys to conduct a DNA test of the suspect. It revealed that he had given a false confession – making him, in Jeffrey’s recollection, “the first man ever proved innocent by molecular genetics.” The police then took blood samples of over 5,000 men from the nearby community and stumbled on the real killer when he was overheard bragging about getting a friend to submit a substitute sample.

NEW YORK’S DNA PROGRAM

Launched in 2000, New York’s DNA database holds 250,000 samples. Spitzer's proposal would immediately add 50,000 samples from prisoners, probationers and parolees, while hundreds of thousands more would be added over time from a broader array of newly convicted offenders.

The database is currently divided into two sections, a Forensic Index, which contains DNA samples taken from crime scenes, and a Convicted Offender Index. Supporters of DNA testing hope to collect as many samples of individual DNA as possible to compare to DNA taken at crime scenes. According to their logic, the likelihood of a crime scene “hit” goes up if there are more DNA samples in the Convicted Offender Index. The testing itself is quick and simple: Just a cotton swab dabbed at the individual’s mouth

At first, sampling in New York was limited to individuals convicted of sex crimes and some other felonies, but the law has since been amended to cover many more offenses. Currently, about half of all individuals convicted of a crime in New York are required to contribute a DNA sample. Spitzer’s legislation would extend testing to all convicted felony and misdemeanor offenders, though it would not include individuals who plead guilty to lower-level violations such as disorderly conduct. In addition, 50,000 samples from state prisoners, as well as individuals on probation and parole, would be added to the database.

A NEW TOOL FOR POLICE

Since it was introduced in New York, DNA sampling has emerged as an important tool in hard-to-solve cases like burglaries, in which, according to the New York Times, arrests are made in only about 15 percent of reported offenses. In 2004, a pilot program launched in Queens called Biotracks, which netted 23 suspects tied to 34 burglary cases in a nine-month period, according to the Times. It led to the arrest of one man, Robert Medina, who pled guilty to five burglaries after DNA on a scarf he left at a crime scene was matched to a sample taken from him after a previous felony arrest.

The same procedure can be used with sex offenses, which are also difficult to solve. In a recent case, DNA from a Queens man convicted on a drug-related charge was matched to a sample saved from a rape kit that included a taunting note left for the victim. As a result, he was found guilty of first-degree rape and second-degree burglary.

Speaking in 2006, Police Commissioner Kelly asserted that DNA testing had led to the arrests of 210 sex offenders. New York City. The technology spurred the elimination last year of the state’s five-year statue of limitation for rape cases.

Perhaps the strongest case for expansive DNA sampling comes from England, which, in the last decade, has embarked on the world’s most aggressive DNA gathering effort. The country’s DNA database maintains over 4 million samples, covering about 6 percent of the population, more than ten times the rate at which DNA samples are collected in the United States. The database has yielded close to 3,000 crime scene matches per month, according to NewScientist.com, including “hits for 15 murders, 45 rapes and sexual offenses and 2,500 car, theft and drug crimes.”

At the same time, DNA sampling can help prove the innocence of individuals wrongly convicted of a crime. The Innocence Project, which uses DNA to try to win the release of the wrongfully convicted, has helped exonerate 201 individuals in the United States, and 23 in New York State. Most recently, DNA testing was used to exonerate Byron Halsey, the New Jersey man who had served 19 years in jail for the murder of the seven and eight-year old children of Halsey’s girlfriend. DNA testing instead implicated a neighbor who had testified against Halsey during the trial. In a statement that shows the powerful impact of DNA, the victims’ mother said, “I knew Byron loved Tyrone and Tina. It didn’t make sense to me that he could have done this. I always had my doubts, but I didn’t know what to do about them. I am thankful that the DNA testing has identified who really did this to my children and that Byron is being released today.”

THE CIVIL LIBERTIES ISSUES

But along with its promise, any tool as powerful as DNA is bound to raise concerns as well. Some fear the technology can be misused, that DNA sampling is a slippery slope that will inevitably extend beyond a relatively small number of convicted offenders.

For evidence, some civil libertarians point to Britain. While the Spitzer proposal extends testing only to those convicted of crimes, however minor, in the United Kingdom the police take DNA samples from all those arrested. Since 2001, they can retain those samples even when the arrest results in an acquittal. And in 2004, the police received the authority to collect DNA from suspects, an even lower threshold than arrestees. The country’s database also includes samples from children under the age of 16, including two 12-year-old children who gave a DNA sample after they were accused of damaging a tree they were using to build a tree house.

While the large number of samples makes it more likely that police authorities can make a “hit” to DNA recovered at a crime scene, keeping samples from innocent people arguably violates the legal principle of “innocent until proven guilty.” As one civil libertarian said, “If your DNA is on the database it means that you are forever an automatic suspect for any crime in the future.”

Those who tend to dismiss arguments often draw an analogy to fingerprints– the criminal justice antecedent of DNA sampling. They are widely collected in the United States, private companies and government agencies use fingerprinting for security purposes, and consumers may soon be able to “unlock” cell phones, laptops and even their homes with fingerprint censors.

Why should New Yorkers be any more concerned about DNA sampling than they are about fingerprinting? One argument is that the information in a DNA sample is much more detailed, containing clues about an individual’s health and ethnicity. In the future, it might offer clues to an individual’s propensity to violence and criminal behavior. In light of this, some critics fear a science-fiction world where DNA sampling could convict individuals before they even commit a crime. Even Alan Jeffreys, who created DNA sampling, has been quoted saying that “as a geneticist I would greatly value the potential enormous power of the database for research, but it’s a gross infringement of civil liberties.”

MANAGING THE EVIDENCE

A less abstract argument raises the issue of whether the state’s already overburdened crime laboratories will be able to handle the increased numbers of samples. If not, evidence could be lost, mislabeled or used inadvertently to make false matches. In a press release critiquing the legislation, the New York Civil Liberties Union focused on what it calls the lax regulation of the state’s DNA laboratories. “Expansion of the databank will overload crime labs and undermine effective criminal investigation,” the statement said, and lead to “large backlogs in the processing of samples [that will] significantly delay the identification and apprehension of violent felons.”

In an op-ed published in June 2006 entitled “Think Before You Swab,” New York state Senator Thomas Duane raised a number of similar issues. He also asked whether an expansion the DNA database could lead to diminishing returns, citing statistics provided by the Division of Criminal Justice Services that fewer DNA “hits” resulted from expansions beyond a small number of felons. “Does [that] signal that adding genetic material from people convicted of lesser crimes has no positive impact?” Duane wrote. “Moreover, is it possible that increasing the number of samples will so overtax the system that the database will actually be less effective?”

It’s perhaps telling that the New York Civil Liberties Union centered its critique on the effectiveness of DNA sampling. The group may well have calculated that DNA sampling, which promises to solve crime and free the innocent at the same time, is too politically popular to take on directly. Or perhaps it shows an underlying confidence that the United States, which has a stronger tradition of civil liberties than Britain does, will be able to navigate the thorny trade-offs between exploiting the full potential of DNA sampling and protecting privacy rights.

In any case, one issue that DNA proponents and critics appear to agree on is the need to improve the state and city’s ability to process and analyze DNA, as well as other crime scene materials. Unfortunately, criminal justice authorities do not have a great track record on this score. Bronx resident Alan Newton, who served 22 years in prison for a rape he did not commit, is a good case in point. For a decade, police officials insisted that they could not find a rape kit that would allow for a test against Newton’s DNA. The kit, held in an enormous Queens warehouse along with over one million pieces of evidence, was finally found in its original 1984 storage bin.

Or take the example of Scott Fappiano, who spent 21 years in jail on a wrongful conviction for rape because key evidence was found only after an intensive two-year search. “It’s appalling that 21 states around this country have enacted preservation statutes for biological evidence, but New York has not,” the Innocence Project’s Peter Neufeld has said

Given that record, the key to ensuring public support for expanded DNA sampling may rest in more in New York’s ability convince the public it can use the technology effectively and responsibly than in the technology itself.

Aubrey Fox is project director of Bronx Community Solutions, aimed at changing the Bronx court system’s approach to low-level crime.

 


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