Bloomberg proposal to take samples at arrest may drive Senate, Assembly further apart

Gov. Eliot Spitzer (D) is taking another crack at expanding New York’s DNA databank, a computer database of individual genetic profiles based on DNA samples. But though there is broad agreement on Spitzer’s core proposal, this year the Senate and the Assembly are even further apart than they were last session, when Spitzer’s proposal failed.
Currently, only 46 percent of convicts—those found guilty of felonies—can be compelled to submit DNA for inclusion into the databank. Spitzer would force all those convicted of misdemeanors, as well as juvenile offenders, to submit their DNA. This would capture DNA from 100 percent of criminal offenders.
The Senate passed a bill last session that would have compelled all convicts of any crime to submit DNA to the state.
The Assembly also passed a bill that would have compelled DNA submissions from all convicts. But the Assembly bill contained additional provisions that would give current inmates and defendants access to the state’s DNA databank in order to prove their innocence.
The differing ideas about who should benefit from increased DNA collection were not resolved. The legislation never emerged from conference committee.
Assembly Codes chair Joseph Lentol (D-Brooklyn), who authored the Assembly bill, expressed frustration with his Senate colleagues for what he termed their unwillingness to focus on wrongful convictions.
Lentol has discussed the Assembly’s concerns with Spitzer’s original proposal with the governor. He said Spitzer indicated that when he officially proposes DNA databank expansion this year, the version will be modeled on last year’s Assembly bill.
But including DNA samples from all convicts may no longer be enough of an expansion to satisfy the Senate. Some lawmakers are now echoing New York City Mayor Michael Bloomberg’s proposal to have the state start collecting DNA samples at the time of arrest, before the legal system has determined a suspect’s guilt or innocence.
Though some states collect DNA at the time of arrest for violent crimes, no state takes DNA samples from those arrested on minor infractions like Bloomberg has proposed.
Lentol said that Bloomberg’s proposal is a non-starter in the Assembly.
“It’s not easy having a bill that expands the DNA database to all crimes in my conference,” he said. “To do it on arrest would probably be tough.”
Senate Judiciary Committee chair John DeFrancisco (R-Onondaga) recently introduced new legislation—which the Bloomberg administration supports—requiring DNA evidence to be gathered at the time of arrest.
“The point is that we are switching the technology of DNA with fingerprints,” DeFrancisco said.
DeFrancisco said that his bill includes measures to allow inmates and defendants access to the DNA databank, an effort to compromise with the Assembly. But he acknowledges that even if his proposal passes through the Senate, reconciliation with the Assembly will be difficult given that his legislation goes further than the Governor is likely to propose.
“You’ve got to put your position out there,” he said. “Hopefully the influence of the public will come into play.”
Senator Michael Nozzolio (R-Wayne/Seneca/Ontario/Cayuga), chair of the Crime Victims, Crime and Correction Committee, which is currently reviewing DeFrancisco’s bill, is a supporter of DeFrancisco’s bill. Nozzolio said he believes that some form of expansion to New York’s DNA databank will be signed into law this year.
Expanding the laws and use of DNA evidence, he said, is an inevitable part of New York’s criminal justice future.
“I think that the science has far outpaced the laws in New York,” he said.   

Legal Equivalence Between DNA and Fingerprints Not Yet Evident

Currently, only convicted felons in New York can be compelled to give DNA samples which are then used to construct genetic profiles stored in a state databank. As television crime drama fans know well, these identifying profiles can then be used by police and prosecutors to match against evidence taken from crime scenes.
Citing expectation of privacy concerns, some argue that DNA potentially provides more data about everything from family history to medical conditions than the government should rightfully be able to collect.
Those concerns have not stopped lawmakers from trying to expand DNA collection to include broader groups of people.
Denise O’Donnell, Gov. Eliot Spitzer’s (D) commissioner for the state Division of Criminal Justice Services, said that DNA evidence was a crucial tool for criminal investigations.
“It is a modern day fingerprint,” she said. “The courts have said that it outweighs the minimal intrusion on a person’s expectation of privacy.”
The state’s DNA evidence would be used solely for identification purposes, she said.
“They are kept without revealing other privacy information about an individual, or genetic information,” she said. “They are carefully safeguarded.”
But others, including State Sen. John DeFrancisco and New York City Mayor Michael Bloomberg, take the fingerprinting analogy further. They argue that New York should compel DNA samples from all arrestees for any violation for which fingerprints are already required.
DeFrancisco said that DNA samples of those not ultimately convicted would be sealed.  Bloomberg has said that the underlying DNA sample would be discarded.
But unlike fingerprints—where the underlying evidence and the record are one and the same—a genetic profile based on DNA evidence can be kept on the state’s database after the original DNA sample is returned or destroyed. Currently, the only way to get a genetic profile removed from the databank is to make a special request to a judge. However, all of the state’s profiles are uploaded to a federal DNA databank maintained by the FBI, so even if a record is removed at the state level, the genetic profile remains in the federal system.
The New York Civil Liberties Union legislative director Robert Perry said that Senate and the Assembly should consider the privacy implications of keeping genetic records, especially since the state has yet to think through all of the ways DNA can be used beyond mere identification.
“There are serious questions as a matter of public policy regarding the expansion of the DNA database that the legislature has not considered seriously enough,” he said.
State Sen. Michael Nozzolio (R-Wayne/Seneca/Ontario/Cayuga), chair of the Crime Victims, Crime and Correction Committee, downplayed the suggestion that DNA samples contain too much personal information.
“Privacy of all state information and all government information should be a concern,” he said, “but no more of a concern for DNA information than any other information that is already readily available to government.”