Critics say New York City isn’t moving quickly enough to shrink a contested, largely secretive database of DNA samples collected by police from potential “persons of interest,” including more than 1,600 minors and 8,000 people who have not been convicted of a crime.
In February, when the New York City Police Department announced new guidelines to limit DNA collection from juveniles and expunge some records, the index contained 32,000 genetic profiles; it now includes 33,538, according to a Dec. 2 report from the Office of the Chief Medical Examiner (OCME), which maintains the database.
The Legal Aid Society says the city’s DNA index is “rogue” and “unauthorized” since it operates outside of state rules and is calling on lawmakers in Albany to pass a bill that would shut it down entirely. And because the databank of genetic material is growing, not shrinking, people waiting to be removed remain in “a really troubling DNA purgatory,” said Terri Rosenblatt, supervising attorney of Legal Aid’s DNA unit.
The DNA samples are taken from people questioned or under arrest — sometimes with their consent but sometimes surreptitiously through drinks or cigarettes offered by police during questioning. It’s a practice that critics liken to “genetic stop and frisk” that disproportionately targets Black and Latino New Yorkers. Their genetic profiles are kept on file and run against crime scene evidence for possible suspect matches — even if the individuals were never charged or convicted with a crime.
In an era of heightened attention to the disproportionate impacts of mass incarceration and youth criminalization on Black and brown Americans, the practice has come under particular scrutiny when it involves collection of children’s DNA.
“It is no comfort to be in an unregulated DNA index in any form,” Rosenblatt wrote in an email to The Imprint. “As long as they have the profile, there is no telling what they will do with it, even if they are claiming to not search the profiles anymore. We have no idea who those people who are supposed to be removed but haven’t been yet are — they could be some of the children as young as 12. And we don’t know when — if ever — they will actually be able to get their genetic privacy back.”
Former NYPD Commissioner James O’Neill has argued that the DNA database is a necessary tool to investigate crimes and helps police identify suspects. However, a committee of the New York City Bar Association, which supports “responsible use of DNA comparisons,” supports shutting it down, calling it “the least restricted and most expansive DNA identification index in the country.”
New York state also maintains its own more tightly regulated DNA database. By law it cannot include people who have not been convicted of crimes and children, aside from those tried as adults. New York City maintains that its local database is not subject to the same regulations, however, and current state law does not expressly authorize or prohibit the city or other local municipalities from operating their own indexes.
Previously, the city DNA records remained on file in perpetuity, but in February the NYPD said it would remove the profiles of most people who had been in the database for two years and were not convicted or suspects in an active investigation. According to the medical examiner’s office, the NYPD has identified 2,397 profiles for removal since July 1, but as of Dec. 2 only 938 had been expunged. An additional 2,476 profiles have also been entered since February.
“The continued increase in the size of the OCME DNA index shows that the NYPD is both slow-walking any removal of profiles while also rapidly ramping up collection,” Rosenblatt stated. “At this rate, there will be no meaningful reduction in the size of the City’s index.”
Aja Worthy-Davis, a spokesperson for the medical examiner’s office, described the removal process as complex, ongoing and “moving at the pace necessary to ensure scientific accuracy.” The remaining 1,459 profiles flagged for removal are not being run for suspect matches or made available to the NYPD, she added in an email: “We have effectively removed access to those cases in the process of elimination.”
Amid the methodic progress to remove names, state Sen. Robert Jackson (D) called the NYPD’s recent additions to the bank “troubling.” Jackson is co-sponsor of a bill that would clarify state law to prohibit New York City from operating its local DNA database.
“I’m especially disturbed to learn how many minors are in the database, especially considering the majority of minors in New York City are Black and Brown,” Jackson, who represents the 31st District in Manhattan, stated in an email. “After the latest groundswell of support for racial justice this summer and all the work that’s been done by activists in school communities to end the school-to-prison pipeline, I would hope that the NYPD would focus on getting rid of these minors’ records right away.”
The bill, introduced by state Sen. Brad Hoylman (D) last year, is currently before the Senate’s Internet and Technology Committee. A representative for state Sen. Diane Savino (D), the committee’s chair, said she supports the bill and that its progress was delayed by the COVID-19 pandemic. The state Senate’s next legislative session begins in January.