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Legislative Memo: DNA Databanking

This bill, which has passed the Senate, would massively expand the reach of New York State’s DNA database to require that all persons convicted and sentenced for any felony or any misdemeanor would be required to provide a sample for DNA testing. The bill applies retroactively to encompass anyone convicted in the past who is still serving a sentence.

The bill would also make a class E felon of anyone who “knowingly fails” to provide a sample within thirty days of notice. Such failure would also be cause for revocation of probation or parole. We should all be extremely alarmed by this over-reaching effort to gather and preserve the genetic information of everyone who comes within reach of the criminal justice system, whether for a violent felony or a non-violent misdemeanor.

Under the Fourth Amendment of the Constitution, a person cannot be compelled to provide blood or saliva in support of a criminal prosecution unless there is individualized suspicion that links that person to a particular crime, and unless the blood or saliva will provide probative evidence relevant to the crime.

This bill goes beyond the gathering of evidence that links suspects to specific crimes, and allows that evidence to be gathered whether or not it is relevant to a crime.

When New York State first created a DNA criminal database, the public was assured that it would include DNA samples only for persons convicted of a limited number of crimes of a violent or sexual nature where DNA samples would be relevant in connection with future prosecutions.

This bill would retain DNA records even for those convicted of non-violent misdemeanors. Fortunetellers would be required to submit DNA samples. Anyone who steals cable television service would be in the database, and, perhaps most alarming, the government would obtain and retain the genetic information peaceful political protesters engaged in a classic non-violent sit-in to protest government policies and practices, sitting in the middle of Fifth Avenue and subsequently convicted of resisting arrest. Our DNA contains intensely private information about our health and our families.

The consequences of misuse of this information are enormous and very frightening. The crimes and misdemeanors covered by this bill are not all of the kind where a repeat offense might leave a DNA sample that might then be matched to the databank.

Where there is no logical connection between the offense committed and the collection of genetic information, compelling an individual to turn over that information becomes an act of intimidation that must necessarily provoke fear over the potential for misuse by the government.

The bill goes further by turning misdemeanor offenders into felons, and felony offenders into repeat offenders, if they fail to provide the sample required. As the sponsor’s memo admits, under current law if anyone fails to provide a required sample in violation of a court order, that person can be held in contempt. This is an adequate enforcement mechanism for collection of samples.

This bill places the burden squarely on the shoulders of the subject and creates a felony out of a failure to act. It is easy to imagine that individuals, confused by the requirements or reluctant to submit to the procedure, might fail to respond to the initial notification. Under this bill the government declares them felons.

If the sweep of this bill is so broad that the government doesn’t have the resources to obtain court orders where necessary to enforce its provisions, then it cannot pass that burden onto its citizens. This bill is frightening in its scope, its intimidating effect and its potential for abuse. The NYCLU strongly opposes its passage.

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Civil Liberties Union