August 1, 2021 22:38

New York Lawmakers Seek Curbs on Collecting—and Storing—Kids’ DNA

In New York City, a middle-schooler pulled over by police could end up in a largely secretive DNA database simply for sipping a soda during questioning, whether or not they are ever implicated in a crime.

According to city officials, the database of human genetic material housed in the New York City Office of Chief Medical Examiner contains the DNA of more than 1,600 minors. But it has received little public attention.

New York State bars the storage of children’s genetic material, as well as material from anyone who is not convicted of a crime, in its statewide DNA index. However, New York City claims that locally operated DNA databases are not subject to the state regulations.

Lawmakers and justice advocates say the regulatory gap has left young people vulnerable to abuses of privacy—especially youth of color who are disproportionately the targets of police questioning.

ayala

Diana Ayala. Photo courtesy The Imprint

New York City Council member Diana Ayala, a co-sponsor of a bill to provide oversight of DNA collection from minors, said young people are being “tricked” into giving their DNA.

“As a parent, as a human being,” she added, “that doesn’t sit right with me.”

A bill  pending in the state legislature would prohibit New York City and other municipalities from maintaining such local DNA indexes, which can store people’s genetic markers indefinitely.

The indexes raise troubling implications for youth who may never be charged with a crime.

The legislation, sponsored by state Sen. Brad Hoylman, a Democrat, is now before the Senate Internet & Technology Committee.

‘Rogue’ Operation

Terri Rosenblatt, a supervising attorney with the Legal Aid Society’s DNA unit who supports stepped-up statewide curbs, called New York City’s DNA collection a “rogue” operation that should not be replicated.

“The longer they’re permitted to do that, and the longer state law doesn’t intervene, the greater risk that other labs will begin doing the same thing,” she said.

DNA databanks are praised when they point detectives to suspects of serious and violent crimes. Genetic markers have led to convictions of high-profile offenders including the Golden State Killer, and police call them invaluable for solving crime in the modern world.

Yet as the profiles in databases across the country grow to more than 14 million, justice and privacy rights advocates are increasingly concerned about how police obtain DNA samples and who is targeted for collection — particularly those who are underage.

A 2019 New York Times report described police questioning a 12-year-old boy and surreptitiously grabbing his saliva from a McDonald’s straw he had used. Although the boy was not found to be a suspect, his DNA nonetheless remained in the index, and his family told The Times it took them more than a year to have it removed.

 Former Police Commissioner James O’Neill said in an op-ed published in the New York Daily News last year that concerns about children’s DNA being snatched in concerning ways are overblown. He called it “pure distortion” that large numbers of children have ended up in the database, noting that 95 percent of 32,000 samples were drawn from adults.

“The remainder came mostly from juveniles in their late teens accused of serious crimes,” O’Neill wrote.

DNA collection is not new. New York State’s computerized DNA index has been active for 25 years and is linked to the FBI’s national database. Under state law, it can only include genetic material from people who have been convicted of crimes — not those who have simply been arrested or detained.

What’s more, New York state law, except in limited cases where minors are tried as adults, does not require that children provide DNA samples, even upon conviction.

Local DNA databases, however, can operate outside these rules. And current state law does not prohibit municipalities from creating their own ways of tracking genetic material.

 The New York City Council is now considering legislation that would prevent police officers from collecting DNA samples without consent from a child’s parent, guardian or attorney, but the proposed law would not ban the practice altogether.

Genetic ‘Stop and Frisk’

New York council member Donovan Richards called the city’s current practice “genetic ‘Stop-and-Frisk’” — a tactic particularly concerning when it involves youth.

“We know from previous experience with stop-and-frisk that the NYPD considers people who are young, Black and male as suspects,” Richards stated in an email, “[That includes] 12-year-olds who for the rest of their lives would be in this database if we don’t have this conversation.”

Donovan Richards

Donovan Richards. Photo courtesy The Imprint

In New York City, 90 percent of minors arrested last year were Black or Latinx, and 83 percent of all minors detained in New York State in 2018 were Black or Latinx.

“This is not happening to white kids from the Upper East Side,” said Rosenblatt of Legal Aid. “They’re targeting Black and brown, mostly boys.

“What does that do to how a community feels about policing?”

In an email to The Imprint, Sen. Hoylman said his legislation to bar local DNA indexes like the one in New York City is not solely focused on the practice of capturing children’s DNA.

The bill builds on the growing pressure for statewide policing reforms in response to widespread protests over racial injustice. It would require local governments to expunge all DNA records that function independently and therefore do not align with rules of the statewide index — a process he said that has allowed New York City to keep “an unauthorized, unregulated and growing database of DNA.”

Legal Aid’s Rosenblatt said she commends the City Council for working to end the surreptitious collection of DNA from juveniles but encourages members to go further.

“The Council and the mayor could end the unlawful City DNA index with a stroke of a pen, which would protect innocent adults, juveniles and others who are caught under permanent genetic surveillance without even being convicted of a crime,” she said in an email.

Expungement Difficult

In a 2011 report, the Urban Institute studied the 30 states that allow juveniles in their DNA databanks and found that expunging this genetic material from state and federal records was extremely difficult.

Researchers noted that few states allowed for automatic expungement if a person was not found guilty of a crime, and most states didn’t consider juvenile record expungement as a sufficient reason to remove the person’s DNA from the database.

In California’s database, for example, which has more than 750,000 total DNA samples, only 1,282 have been approved for expungement, according to the Electronic Frontier Foundation. It’s unclear how many of these samples come from children.

California law requires juveniles convicted of a felony or a sex crime to submit their DNA samples but requires that samples from more minor crimes or arrests of juveniles be kept out of the database.

And California, like New York, has struggled to keep municipalities from creating their own rules when it comes to DNA indexing. The ACLU filed a lawsuit against the city of San Diego in 2017, saying that since at least 2009 the city’s police have been routinely taking DNA swabs from minors during street stops and storing the DNA in an independent database.

In 2018, then-California Gov. Jerry Brown signed a law — similar to the legislation the New York City Council is now considering — that prohibited police from taking DNA from minors in street stops without the consent of a parent or a court order.

Marcy Darnovsky, executive director of the Berkeley, California-based Center for Genetics and Society, said some people assume if they never commit a crime, there’s nothing wrong with police having access to their genetic material.

But that’s a naive view, given that DNA forensics is not an exact science, she said.

In addition, new “genetic genealogy” techniques cast a very wide net. Police look for partial matches between DNA retrieved from crime scenes and DNA profiles stored in genealogical databases, then try to identify a suspect through the genetics of family members, including distant ones — “your cousin that you’ve never heard of,” Darnovsky said.

And as with all things in the criminal justice system, racism is foundational.

“It’s clear that these wide and extensive collection protocols are going to disproportionately impact communities that already have disproportionate interactions with the criminal justice system,” Darnovsky said.

“It’s really a racial justice issue.”

There are eight labs that feed DNA samples from subjects and crime scenes into the New York State database housed in Albany, which in return feeds into the FBI’s Combined DNA Index System.

In addition to the New York City lab, other labs are located in Erie, Monroe, Westchester, Nassau, Onondaga and Suffolk counties. These labs are locally funded, and local prosecutors use them to process DNA evidence for criminal trials. They are accredited by the state and follow the state’s guidelines, including its restrictions on minors.

But Rosenblatt of the Legal Aid Society said her office is not aware of whether any of these local governments have acted as New York City has — using the lab’s resources to maintain a separate set of DNA profiles in an independent index and using the data to match local crime scene evidence.

Terri Rosenblatt

Terri Rosenblatt. Photo courtesy The Imprint

But she said that if New York City can create its own index with little consequence to date, it’s possible other counties are doing so as well or might consider it in the future.

New York City’s database has been found to be operating illegally on several occasions, although the cases applied only to individuals and did not set a precedent. In 2016, a Supreme Court ruling out of Bronx County took issue with inconsistencies between New York City’s index and state law.

The ruling concluded that because New York City accounts for more than half of the DNA used to solve crime in the state, the database operates as an alarming “shadow state DNA index.”

And in 2018, a Manhattan Superior Court judge ruled that minors cannot consent to give up their DNA, as their “brains are still developing.”

New York City’s DNA index, which grew more than 29 percent in the last three years, has been a function of the Office of the Chief Medical Examiner since 1998. But the local bill to be heard in the Committee on Public Safety would prohibit police from collecting DNA from a minor without the consent of a parent, legal guardian or attorney.

Police Pledge ‘Balance’

City law enforcement officials have reported that in response to public scrutiny, thousands of profiles that were surreptitiously created or that included people not suspected of crimes have been removed from the database already.

But it maintains that the database is needed to keep the public safe.

“The NYPD has made proactive adjustments to its DNA policies to further achieve fair and effective policing,” Chief of Detectives Rodney Harrison wrote in an email to The Imprint.

“At the same time, the NYPD, as a fervent advocate for victims, will continue striving to find the right balance between ongoing criminal justice reform and precision crime fighting on behalf of all New Yorkers.”

Councilmember Ayala said she is not satisfied with the NYPD’s progress, and little information is publicly available.

The Legal Aid Society, for example, has filed a formal request under the Freedom of Information Law to discover how many children are in the database, and each time the city’s medical examiner has responded that it doesn’t keep those records.

Ayala said she doesn’t completely understand why the city needs its own DNA database in the first place, and she is looking forward to testimony from the NYPD at a not-yet-scheduled committee hearing, as well as from young people who have been profiled.

“I’m not a proponent of putting in legislation that impedes anybody’s opportunity to do their job,” Ayala said, “but there’s right and there’s wrong.”

This story was produced in partnership with The Imprint, a national news outlet that covers issues affecting vulnerable children, youth and their families. Rachel Rippetoe is a freelance reporter based in Brooklyn, N.Y., and can be reached at rachelrippetoe@gmail.com.

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