Opinion: A 20% approach to justice reform

New York's leaders are congratulating themselves on their recent approval of legislation that makes New York the first "all crimes DNA state in the nation." The new law requires people convicted of virtually any crime -- misdemeanors as well as felonies -- to submit DNA samples for inclusion in the state's "offender" databank.

"This bill will greatly improve law enforcement's ability to keep New York communities safe and bring justice to victims of violent crimes," said Gov. Andrew M. Cuomo, "as well as those who have been wrongly convicted."

By dramatically increasing the number of offenders from whom DNA profiles are required, the new law will indeed enhance the likelihood of producing matches to crime-scene samples and solving crimes. Biological evidence suitable for DNA analysis (for example, blood, seminal fluid, saliva) is available in an estimated 20 percent of crimes. Many who commit low-level offenses also commit much more serious ones, and they might elude detection if their DNA is not collected following a misdemeanor conviction.

But the new legislation opens few new avenues for challenging wrongful convictions. People wrongly accused of a crime can always voluntarily provide DNA for comparison to a crime-scene sample and thus avert prosecution. Expanding the DNA databank is neither necessary nor especially useful to protect the innocent against conviction. In fact, the new statute conspicuously neglects measures designed to prevent wrongful convictions.

By shunning safeguards for the innocent, the law falls sadly short in the more ambitious challenge of doing justice.

Such safeguards were featured in earlier Assembly bills, but they subsequently fell casualty to negotiation and compromise. By focusing almost exclusively on the DNA databank, the new law fails to address well-known problems associated with eyewitness misidentification, generally accepted as the leading cause of wrongful convictions. It ignores the risk of false confessions, even though they occur with surprising regularity. It is silent, and deafeningly so, about several other commonsense, readily available procedural safeguards that would help prevent wrongful convictions. For example, no measures speak to the notoriously unreliable testimony of jailhouse snitches, and none touch on the responsibilities of the police, prosecutors or defense attorneys -- whose job performance is so obviously critical to the administration of justice.

The simple aim of preventive safeguards is to enhance the reliability of evidence and ensure the integrity of criminal convictions. Far from undercutting what the new legislation promotes, the rejected measures would have strengthened and complemented it. Administering justice does not have to be a zero-sum game. Reforms beyond DNA database expansion would assist with both apprehending the guilty and protecting the innocent; no trade-offs are required.

If the aim truly is to promote justice -- to help identify and punish the guilty and guard against convicting the innocent -- expanding the DNA databank is at best a partial step. Early on in the negotiations, Cuomo announced his support for a "clean" DNA database expansion bill, rather than endorsing more comprehensive reforms. He reportedly did "not want to play the normal Albany game" -- ostensibly epitomized by the Assembly proposals -- "[and say], 'Well, let's use this bill to accomplish unrelated things that we want to get done.' "

But the "things" addressed in the DNA databank expansion legislation and the repudiated Assembly bill are far from unrelated; they are about promoting justice. Expanding the database, and doing that alone, is a 20 percent solution. It's no more defensible than trying to solve 20 percent of the problems that cause airplanes to crash or car brakes to fail. Other factors are known -- and they're capable of being repaired, too.

James R. Acker is a professor and Allison D. Redlich an associate professor at the School of Criminal Justice, University at Albany. They wrote the book "Wrongful Conviction: Law, Science, and Policy."