The State Legislature's failure to come to terms on a bill that would expand the DNA Databank needlessly puts New Yorkers at risk and delays vindication for wrongly accused and convicted suspects.
Unfortunately, Gov. Eliot L. Spitzer's proposal to expand the number of crimes for which offenders must provide DNA samples became mired in ancillary issues that have little or nothing to do with DNA expansion. The Senate finally passed a DNA bill when it reconvened last week, but the Assembly also should make expansion of the DNA database to all crimes a priority when it too eventually returns to Albany.
And the Legislature should refrain from erecting barriers or obstacles to DNA expansion by linking that initiative to tangentially or unrelated issues -- such as the videotaping of confessions or the creation of an innocence commission.
I begin with the premise that expanding the databank to mandate collection of DNA from every person convicted of a penal law crime, as well as individuals on probation, parole supervision or registered as sex offenders, plus youthful offenders -- as proposed by the governor -- will solve crimes that have already been committed, prevent crimes that would have been committed and exonerate individuals who were wrongly convicted. An overwhelming majority of legislators, in both houses and on both sides of the political aisle, appear to support that premise.
Unfortunately, the DNA expansion bill was linked to a proposal that would require police to videotape all custodial interrogations. While there is growing support for videotaping, both from within and outside the law enforcement community, such an initiative would have widespread public safety and legal implications that must be explored prior to enactment of any such legislation.
The most vexing issue is whether failure to videotape a confession would render the statement inadmissible at trial. A number of police agencies and district attorneys' offices have already adopted voluntary procedures for the videotaping of confessions, and it would be wise to learn from their experiences before enacting new legislation. In the meantime, the DNA expansion measure should not be held hostage.
There are three other issues that I would like to diffuse as well in the hopes that lawmakers, when they do return, can focus on the merits of the DNA proposal:
First, concern has been expressed over DNA databases maintained by local laboratories that are not part of the state DNA databank.
The crime laboratories which maintain these databases are fully accredited and operate according to stringent standards designed to assure the quality and reliability of their test results, as well as the security and integrity of physical evidence under their custody and control. It is misleading to label these databanks as "rogue databases," as some have done. The courts of New York have permitted local laboratories to keep separate DNA databases of samples collected by local law enforcement, and the fruits of their efforts have resulted in several criminal convictions. The local labs perform an important criminal justice function. Efforts to subject these labs to more stringent regulations, or to close them down as some have proposed to do, are irrelevant to whether the DNA database should be expanded, and should not be used as an excuse to delay enacting the governor's proposal.
Second, some critics suggest that our State Police laboratory is already backlogged and that with tens of thousands of additional samples to process, it would be incapable of performing timely, accurate analysis. That is inaccurate.
The State Police Forensic Forensic Investigation Center has processed more than 21,000 samples so far this year and already has increased its capacity to roughly 5,500 per month in response to prior database expansions. Before the end of this year, it is projected that the lab will be able to handle in excess of 8,000 samples monthly. At that rate, any backlog created by the expansion would be eliminated by next July.
Additionally, some advocates and legislators are tying the creation of an independent "innocence commission" to the DNA expansion bill. The governor's proposal already includes a provision charging the Division of Criminal Justice Services with the responsibility of studying cases in which defendants have been exonerated and identifying weaknesses in the system so that reforms can be implemented. As the agency created by the Legislature specifically to "advise and assist the governor in developing policies, plans and programs for improving the coordination, administration and effectiveness of the criminal justice system," the division is in the best position to perform that function. Cases of wrongful conviction are a powerful catalyst for change in the criminal justice system, but the most effective change comes from within rather than from outside government.
Finally, the governor's proposal includes myriad other safeguards to ensure the appropriate and fair use of DNA evidence. For example:
Defendants who can make a proper showing of need will have the right to apply for DNA testing before trial, or after trial if necessary.
When there is new evidence that may exonerate a defendant, the prosecutor will be required to bring it to the attention of the court, and the court will be required to reach a prompt resolution of the issues.
The bill expands the opportunity for innocent defendants who are exonerated to seek compensation from the state.
The bill directs the development of voluntary guidelines for the collection and preservation of biological evidence by police agencies.
Since inception, there have been well over 3,000 hits to the DNA databank. We know of at least three people who have been cleared through a databank hit, and we are not aware of a single hit leading to a wrongful conviction -- not one.
There is little question that some day every state will collect and retain DNA profiles from the same people, and for the same reason, that they now collect and retain fingerprints. There is absolutely no question that expanding the DNA databank now will prevent crimes from occurring, solve crimes that have been committed and exonerate innocent suspects. So, let's go forward where we do agree -- which is on the basic premise that the databank should be expanded -- and pass an all-crimes DNA bill.
Denise E. O'Donnell of Buffalo is Commissioner of the New York State Division of Criminal Justice Services.