OPINION: Make more crimes DNA-eligible

Sean M. Byrne is acting commissioner of the state Division of Criminal Justice Services.

The indictment of Francisco Acevedo last week for the murders of three women in Yonkers decades ago, is yet another striking example of how DNA technology has revolutionized criminal justice and enabled law enforcement to pursue even the coldest of cold cases.

But there is a sometimes fatal flaw in New York's DNA law. Currently, law enforcement agencies and courts in the state are permitted to collect DNA from only 46 percent of the individuals convicted of penal law offenses. There is still a multitude of crimes, ranging from all non-penal law crimes to dozens of penal crimes, such as an arson count or providing prisoners with contraband, for which the convicted individual does not have to supply a DNA sample.

That means that criminals who would otherwise be incarcerated are free to commit additional crimes and injure or kill more people. And they are doing just that.

Take Raymon McGill in Albany. Twice, McGill was convicted of minor crimes (petty larceny in 1999 and misdemeanor drug possession in 2003) that did not require collection of DNA. When he was finally convicted of a DNA-qualifying offense - attempted robbery, in 2005 - he was linked to the rape of an 85-year-old woman in January 2000, the murder of a 50-year-old woman in March 2000, and a second murder, of a 68-year-old man, in January 2004.

Had McGill's DNA been collected and added to the state's databank as a result of the petty larceny conviction, his connection to the January 2000 rape could been discovered before the March 2000 murder, and that crime - as well as the second murder and attempted robbery - could have been prevented.

Even the misdemeanor drug possession charge McGill was convicted of three months before his second murder remains a DNA ineligible offense. Offenders linked to former crimes using the DNA databank had an average of five arrests and four convictions before the DNA-qualifying conviction that finally added them to the database.

So, why are we failing to use a tool that we know will solve crimes and prevent more, as well as exonerate innocent people? Politics.

Gov. David A. Paterson has a bill that would expand the databank to include all penal law crimes and prevent many of these tragedies, and it would do so at a very reasonable cost. But it appears destined to die on the vine, as similar measures do year after year after year. I am aware of no opposition and suspect that if it came to the floor of the Legislature, it would pass in a heartbeat. That, ironically and irrationally, is precisely why it doesn't get done.

For years, the New York State Legislature has coupled the all-crimes DNA bill with other ancillary and controversial issues in the hopes that those matters would slide through on the coattails of the expansion measure. Or, lawmakers propose expanding the databank to include everyone arrested (not only those who are convicted) - a highly controversial proposal that would require such an enormous investment that it could not possibly be implemented in the near future.

In the meantime, New Yorkers are being victimized by preventable crimes.

It's time to stop using the lives of New Yorkers as a bargaining chip. The legislature should enact Paterson's proposal immediately and let unrelated or marginally related issues rise or fall on their own merit.

Admittedly, the proposal now on the table still wouldn't include non penal law crimes and wouldn't necessarily have resulted in Acevedo's earlier apprehension. There is an argument to be made that driving while intoxicated, Acevedo's crime, and other non penal law crimes should be added, and that some day, when the state's finances are in better shape, the databank should be further expanded.

But an inability to do what we might like to do isn't an excuse for failing to do what we ought to do. And right now, we can and should implement all-crimes DNA with no delay and relatively little additional cost. Doing it will save lives. Failing to is simply irresponsible and inexcusable.