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Don’t allow genetic stop-and-frisk

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If you think the government wouldn’t target you as a suspect because of who is in your family, you might soon be proven wrong. A New York forensic oversight agency wants to unilaterally expand the use of the offender DNA database to convert relatives of those on file into default suspects.

This is familial searching, and the state Commission on Forensic Science wants to allow its use — though it is not clear it has the legal authority. Some states have outlawed it, some use it without legislative authority, and more have taken no action.

This is how it works: People convicted of nearly any crime in New York, including low-level, broken-windows type offenses, lose the right to genetic privacy. The state keeps a database of their DNA samples to compare with unsolved crime scenes. If no match to a crime scene is found, familial searching would expand the search to look for near matches, which means the relative of an offender could match the evidence. It also could generate innumerable false positives (innocent people), depending on the scope of the search.

If you end up on law enforcement’s radar through a familial match, cops might rummage through your trash for abandoned DNA, ask your neighbors or employer about your whereabouts or show up at your door and request your DNA to prove your innocence. You may never know it’s happening before you are excluded. Or your life could be turned upside down, depending on police discretion.

Opponents of familial searching don’t dispute the underlying principle of gene sharing among relatives. And by scooping up a broad range of people, the method will occasionally close cases. The question is whether the government should access our DNA this way.

Familial searching implies that criminality runs in the family, and that law-abiding relatives of the convicted deserve less privacy and more suspicion. The suggestion that criminal behavior is genetic echoes dangerous, long-debunked pseudosciences.

The NYPD cites a poll that half of inmates have a relative who also has been imprisoned. But in a twist of logic, this statistic reveals a disturbing pattern in criminal justice and an inherent problem for familial searching. Historically, the overpolicing of poorer communities of color has led to disproportionate representation in the criminal justice system, and by extension, the database. Supporters ignore this inevitable inequality because familial searching is purportedly race neutral. This is genetic stop-and-frisk.

Supporters of familial searching dismiss privacy concerns, insisting no rights are threatened because people ruled out will never know they were investigated. Even if true, the covert nature of the investigation is little comfort. If the harm is trivial, why not search all profiles on file, including lab personnel and crime victims?

There are good reasons innocent people don’t want to be caught up in a DNA dragnet. DNA provides powerful evidence, but it can also implicate the wrong person. When police found Lukis Anderson’s DNA in 2012 under a homicide victim’s fingernails in California, a fortuitous alibi exonerated him. In fact, a medic transferred Anderson’s DNA to the victim. In New York, the NYPD investigated an innocent neighbor when a partial match on a cigarette butt was recovered at a burglarized home. If DNA implicates you, you’d better have a good explanation.

The New York Commission on Forensic Science wants to green-light familial searching before the corresponding legislation is approved. It should defer to lawmakers whose constituents will be directly affected; legislators must ban an unconscionable practice that targets citizens based on nothing more than genetic association.

 

Allison Lewis is an attorney with the DNA Unit of The Legal Aid Society.

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