a bird and a bottle

What Does a Giant Q-Tip have to do With Your Privacy?
May 15, 2007, 8:47 am
Filed under: civil rights, criminal justice, law, news & views, NYC, politics

Actually, quite a lot.

N.Y. Governor Spitzer announced recently his proposal to greatly expand the use of DNA testing in the New York criminal justice system. Under the current system, DNA is collected from people convicted of only the most serious crimes — rape, murder, burglary. Spitzer’s proposal, which has been kicking around the state legislature for some time now, would require that DNA be collected from ALL people convicted of ANY crime, including misdemeanors. Get convicted of pot possession? The state’ll have your DNA. Get arrested and convicted for protesting against a political convention? Yep, your DNA gets sampled too. The plan would also require the collection of samples from everyone currently incarcerated, on probation, and on parole.

The upshot to Spitzer’s proposal, and what makes it different from the old proposals, is that criminal defendants would have access to the state DNA database too, and could use it to prove their innocence. It would also require that prosecutors notify the court if they find out that there might be DNA that would exonerate the accused.

The upshots sound pretty good. DNA evidence has been used to exonerate over 200 people who were wrongly convicted and who have spent up to 30 years in prison for crimes they didn’t commit. DNA can be as powerful a tool for defendants as it is for prosecutors. But NY’s plan – for all the talk of equanimity – goes too far.

First of all, prosecutors are already under a duty to report evidence that exonerates the accused. The NY plan just codifies that. Second, DNA is not like fingerprints, which can only be used for a specific purpose. DNA evidence, once collected, provides a wealth of information to the government. Information that may have nothing to do with whether or not the person from whom the DNA is collected committed a specific crime. I don’t know about you, but I am not too keen on turning people’s most sensitive information over to the government at a time when it’s clear that the government does not respect its citizens’ privacy. Third, DNA evidence is not foolproof — but juries often think it is. The New York Civil Liberties Union, which opposed a similar program proposed by NYC Mayor Bloomberg last year, reports on the perils of relying too heavily on DNA:

In the past five years the use of DNA by law enforcement has come under increasing scrutiny by critics who have documented cases in which the use of DNA has been subject to gross negligence and intentional abuse. The Houston Police Department closed its DNA lab in 2003 after it released from prison two men who had been falsely incriminated by faulty lab work. In 2004, a Seattle Post-Intelligencer report documented 23 errors that the Washington State Patrol laboratory had made in the investigations of serious crimes.

So what are we to do? We want to protect people from wrongful convictions while also ensuring that convicted rapists can be easily caught should they rape again. I’m not saying DNA should never be collected. But there’s a balance that can be struck. The governor’s proposal ignores the possibility of a more evenhanded approach and puts a heavy hand on the justice scale.


5 Comments so far
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I’m not sure whether it’s necessary to maintain a database of rapists’ DNA at all. Rape is usually committed by a nonstranger. Among all crimes, it tends to be the one for which it’s hardest to prove the crime occurred and easiest to prove the accused did it assuming a crime did occur.

Of course, the one third of rapes that are committed by strangers tend to have a greater problem of finding out who did it. And they’re probably also overrepresented among reported rapes and especially among prosecuted rapes… in which case the question of whether the database is necessary boils down to things like recidivism rates and known rape risks (e.g. someone who’s committed sexual assault is probably likelier to rape than someone who didn’t). I know one specific case in which this database would’ve been useful – the Tel Aviv serial rapist, Benny Sela – but one specific case isn’t enough.

Comment by Alon Levy

Can you be more specific about what kind of abuse you’re worried about? So, say the state of New York decides to take the time and money to figure out that I’m a hemophiliac or something. So what? What are they going to do with it to hurt me?

Comment by aeroman

Sure, aeroman, it’s a fair request. I guess that (in my conspiracy theory addled brain), I am worried about the encoding of private health information on drivers’ licenses, etc. While in some ways that might be good (you might want EMTs, for example to know you’re a hemophiliac), there are some things people might not want shared. It also just makes me uncomfortable to think of the government having that kind of information about people without what I think is good cause — that’s not a specific example but rather the feeling underlying this whole post.

Also, I meant to say that I x-posted this at Feministe. There’s been interesting discussion over there about the proposal that is worth checking out.

Comment by bean

I’ve looked over the Feministe discussion, and I still feel like I’m coming up a little short. If all you can think of is that you have a general aversion to the general idea, maybe your bad-policy filtering mechanisms are just giving you a false positive on this one. Presumably one shouldn’t oppose a potentially beneficial policy unless she can point to some specific reasons it’s likely to bring about some identifiable class of harm.

The expense argument might be compelling, I guess, but that’s not a privacy argument.

Comment by aeroman

I’m glad you spoke up that you’re still not satisfied. I’ve been trying to put my finger on hat I find odious about this program. Here’s what I think it is (or at least what’s part of it): I think that taking DNA from everyone convicted of any crime, even small time misdemeanors, plays into this notion that there are people who are “criminals” and those who aren’t. Sure, there are peoplewho have criminal records and those who don’t. But what makes me anxious is this idea that anyone who is convicted of anything might be a lifelong criminal and so we need to get their genetic info and stat. Certainly there’s nothing to say that someone who commits a violent crime poses any more of a threat of being a recidivist than others, but the nature of their crime makes it such that the societal interest may be overwhelming there. But in the cases of the thousands of others who commit petty crimes every year, I’m not sure that the government interest trumps their interest in privacy.

Comment by bean

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