Should the NYPD be able to use the city’s DNA database?

Police departments throughout the country have increasingly relied on DNA databases, and the New York City Police Department has been no exception. New York City’s database has grown nearly 29% over the past two years to include more than 82,000 people. It has been criticized by civil rights activists and elected officials for years, but scrutiny of the practice came to a head this year. Last month, The New York Times outlined how juveniles and people who hadn’t been convicted of crimes were included in the database. Officers have sometimes collected the genetic material from drinks or cigarettes offered to suspects, who aren’t aware that their DNA will be collected and permanently stored. 

The issue also featured prominentely in a murder case in March, in which defense lawyers accused the police of taking DNA samples from at least 360 black men in Queens and Brooklyn to find the suspect. Some of the men told the Times that NYPD detectives tried to bully and threaten them into giving samples. Meanwhile, law enforcement officials have touted the database’s usefulness for crime solving – the Brooklyn district attorney’s office has said it had solved more than 270 cases using such DNA. 

State-run databases can only acquire DNA from people convicted of a crime, but those run on the local level – such as New York City's – are not subject to the same requirements. Anyone trying to have their DNA removed from the city database would have to pursue legal action to do so as well.

In this week’s “Ask the Experts,” we looked into the advantages and disadvantages to the database, and what changes to DNA collection and storage may be needed. Three experts participated: Joseph Giacalone, a professor at the John Jay College of Criminal Justice and retired NYPD detective sergeant; Christopher Slobogin, a professor of law and director of Vanderbilt Law School’s Criminal Justice Program; and Marvin Schechter, a criminal defense attorney and former member of the New York State Commission on Forensic Science.

What are the pros of New York City's DNA database?

Joseph Giacalone: Most of your suspects are from New York City, so why should the police have to cull through a state or national DNA database? This is not like television where you submit a profile and get it back in seconds. The more DNA samples that are in the database, the longer it takes.

The DNA database is administered by the Office of Chief Medical Examiner who doesn’t work for the police department. They are the gatekeepers of the DNA database and the NYPD has no remote access to it. This provides a layer of protection of the samples from unwanted police intrusion. This is something that should make people sleep better about it.

Having a local database allows the police to identify and arrest suspects quicker, which mitigates further victimization. Identify the suspect and get him off the street before he harms someone else. The database may prove to be an aid in closing more violent crime cases, help in identifying human remains and breathe new life into cold cases.

Christopher Slobogin: The larger the database, the greater the potential to solve crimes. From a law enforcement perspective, the ideal database is a universal database, one that contains the DNA of everyone born or entering the United States. Such a database would also facilitate identification of dead bodies and help find missing persons.

Marvin Schechter: There are no “pros” for a law enforcement database which operates with no statutory regulation and collects information regarding citizens without any published protocols nor published date on how such information is being used. 

What are the cons of the city's DNA database?

Marvin Schechter: The “cons” of this database are the encroachment by government law enforcement on citizen privacy without benefit of judicial or legislative oversight. What material is being collected and how is it being obtained, what are the protocols limiting whose DNA is entered in the database, how long is such information preserved and is it ever destroyed, with whom is such information being shared, who has access to the database and are there are protocols in place for determining if there has been access violations of the database, is DNA entered into the database of people who have never been charged or arrested for a crime and if so what is the source of such DNA entries – all of these issues and the answers are currently not available nor susceptible of confirmation. 

Joseph Giacalone: From a law enforcement perspective, I don’t see any cons. Activists and civil libertarians would say otherwise, but from a crime control advocate argument, there are only benefits. I certainly understand the “slippery slope” argument, that something like this may lead to larger issues. As long as the collected DNA was from a person of interest or wanted in the case, I don’t see it as an issue. However, if the NYPD, or any police department for that matter, went around and started collecting abandonment samples from just anyone to input it into the database like a fishing expedition, then we’d have a major problem. 

Christopher Slobogin: The downside is that, since the database is not universal, the police appear to be arbitrarily choosing who will be in it, using coercive or deceptive methods. As a result, the database is more likely to include the “usual suspects,” defined in terms of race and class more than anything else. Additionally there do not appear to be any clear rules governing what type of profile is maintained by the department (the full genome or only the profile needed to carry out matches), whether police can carry out familial matching (i.e., use a partial match to crime scene DNA to identify relatives of possible perpetrators), who has access to the profile, or whether it can be used for purposes other than crime investigation.

What, if anything, should change in how the NYPD uses the database?

Christopher Slobogin: Outside of DNA collection already authorized by state law, the city police should not be able to collect DNA until the city passes a law, after full debate, about whose DNA may be collected, under what circumstances, and with what limitations. Until then, the police should only be able to force or cajole a person to provide a DNA sample if they have a warrant.

Marvin Schechter: The NYPD database should be subject to legislative oversight with specific protocols developed to govern precisely whose DNA can be entered and limiting access subject to review by a court. Such a database probably should not exist at all and its functions subsumed by the DNA database currently under the jurisdiction of the Commission on Forensic Science.

Joseph Giacalone: I know many argue that the DNA sample should be removed from the database once the person is cleared. However, once you are fingerprinted, they stay in the system forever. Why should the DNA sample be treated differently? The USSC has used this analogy at least once if I remember correctly. I would suggest to the OCME, if they are not doing it already, that they use accredited standards for the DNA database and be more transparent. Not many people outside of these agencies knew about the existence of such a database and that strikes fear in some people.