Don’t Navigate Arbitrarily (into my Deoxyribonucleic Acid)
Governor Spitzer's proposed DNA bill calling for New York to collect DNA samples from every person convicted of a crime (including all misdemeanors), and everyone on probation and parole, is problematic for many reasons.
Before examining the DNA strand of the bill, the sample is contaminated first and foremost because of a separate illogical and offensively punitive provision that sets a one-year deadline for prisoners challenging their convictions on grounds other than newly discovered evidence (which would bar such common and occasionally meritorious claims as ineffective assistance of counsel, prosecutorial misconduct, perjured testimony, admission of unconstitutionally obtained evidence, etc., after 365 days). Such an arbitrary rule has little appeal (or appeals). As the Times noted, "if Mr. Spitzer wants to reduce the number of convicted criminals who challenge their convictions, he should start by addressing the serious problems with the state's public defender system that give rise to many of the legitimate complaints."
Even doing away with this draconian deal-breaker, dissecting the collection-happy DNA provision of the draft leads to the discovery of other detriments.
There are serious privacy implications whenever the government reaches inside and plucks out our DNA, particularly when it is against our will. Now the state will forever have our genetic code -- material as rich, personal, and revealing as anything in our bedroom closets. But just as each misdemeanor conviction does not force us to fling open our closet doors for the state's inspection, nor should it always compel us to expose our DNA.
The law already requires DNA surrender for numerous offenses (and was expanded just last year to encompass more misdemeanor convictions) (see my entry titled "You Take a Banana, We Take Your DNA"), and currently results in half of all individuals convicted of a crime parting ways with a DNA sample.
But what is the rational basis for collecting the DNA of a 16-year-old who hopped a turnstile, a 30-year-old who possessed a pinch of cocaine, a drug addict who stole a Snapple from a deli, or anyone who passed from one subway car to another (or dealt in fireworks, or tattooed someone under 18, the Orwellian list goes on ...)? Do we really need their DNA?
I represented a man in the Bronx, arrested for trespass (a notoriously easy offense for the police to charge falsely or fabricate, as all it requires is alleged presence in a building lobby without permission), from whom the government took a DNA sample via a cotton swab in his mouth while in the stairwell of the holding cell prior to arraignment. To him, and to me, this seemed invasive and unnecessary (not to mention that it occurred pre-conviction).
The police need reasonable suspicion or probable cause to stop and search me on the street; the same should be required of the government before it is allowed to rummage through my DNA pockets after conviction for any number of petty offenses, which by themselves should not be the state's green light. Such probing should be permitted only if rationally related to the law I have transgressed, both in substance and severity (such as, say, rape).
A second problem with the bill, hidden on its face and absent from much of the criticism of the law, including that of a New York Times editorial yesterday, is its unique impact on poor communities of color. A disproportionate number of people coming into contact with the criminal justice system are Black and Latino, and poor. Consequently, the law's DNA-for-every-misdemeanor provision will result in New York's DNA databank becoming even more vastly overrepresented by minorities. It is unsettling to envision the state's filing cabinets overflowing with DNA dossiers on many poor Blacks and Latinos while its comparable file drawers for wealthy whites remain empty.
If the law's purpose is to enhance investigatory tools, then perhaps the State should demand a DNA sample from every New York resident, including those of the Upper West Side and Park Avenue. After all, why leave a single stone (or chromosome) unturned? Perhaps because the public would likely not support such an idea.
Third, though the law is understandably heralded as an effective crime-solving tool, expanding the databank to include people convicted for minor offenses could overwhelm New York's crime labs. Many labs nationwide are currently inundated with DNA samples in need of testing, and it often takes months, if not years, to get a specific sample tested. Although New York has reduced its backlog of untested DNA samples since 1999, expanding the volume of work risks harming the innocent by delaying the uncovering of exculpating evidence, prolonging the apprehension of actual perpetrators, and impeding its quality by increasing the rate of error. Spitzer's proposal would immediately increase New York's databank by 20% and open the floodgates to tens of thousands of additional samples.
Fourth, the focus on expansion distracts law enforcement from a more important task: adequate collection of samples from actual crime scenes. Too often, the police fail to collect forensic evidence, or collect it too sparingly, so that if testing was never done originally, or needs to be done again using more sophisticated methods, there is often no evidence left to test. There are many people in prison claiming innocence but who are unable to prove it because the forensic evidence in their cases was either not collected or improperly collected, or consumed in the initial testing. If the database is expanded, it should be done through increasing crime scene samples to solve actual crimes, not by clogging the system with samples from people who have been convicted of minor offenses.
So as I stand in court and plead guilty to writing graffiti in an abandoned lot, preparing to give the government the password to my genetic code, I hope the Governor at least reads what I wrote on the wall: "DNA's Double Helix: Don't Navigate Arbitrarily (into my Deoxyribonucleic Acid)."