Capital New York

For New York-based advocates of criminal-justice reform—the people whose goal it is to reduce the number of wrongful convictions that occur every year—it's feeling a lot like now or never.

Over the last decade, New York State has gradually expanded its database of DNA samples. It now collects them from just under half of all people convicted of crimes: First the state collected samples from a relatively narrow group of felons, then all felons, then it added some misdemeanors, and then more misdemeanors.

Each time the program has been enlarged, reformers have tried to use the expansion to push for simultaneous new guidelines that they believe would reduce the risk of wrongful convictions. And, each time, they've lost; the database has been expanded, without the reforms, over their objections, with a nod toward doing something to address their concerns next time around.

Now, with Governor Andrew Cuomo aggressively advocating the full expansion of the database, which would make New York State the first to collect samples from all crimes, reformers see this as their last, best chance to achieve something meaningful.

"We're kind of at the end of the line here, in terms of legislative strategy and leverage," said Assemblyman Joe Lentol, a Democrat who chairs the Assembly's codes committee and has sponsored several reform bills that have passed the Assembly, but never the State Senate.

There are a number of reasons this has been a one-sided battle, politically. But what it boils down to is that the database-expansion measures have powerful, permanent constituencies, including law-enforcement and district attorneys, and are an easy sell to the public as common-sense crime-reduction tools. The accompanying would-be reforms, which include granting defendants more access to the database and overhauling the state's procedures for line-ups and interrogations, have the support of civil-liberties advocates, who tend to have more pull with liberal editorial boards than actual legislators or, in this case, governors.

Cuomo has likened DNA to a "fingerprint" for the 21st century, pushing the expansion in his State of the State speech, and cheering the State Senate when it passed its bill on January 31, by a vote of 50-10. His lieutenant governor, former Rochester police chief Bob Duffy, has taken the administration's support on the road, appearing with local police chiefs and district attorneys in Buffalo, Utica, Rochester and Watertown. (On Feb. 14—Valentine's Day—five local district attorney will appear in support of the bill in Manhattan.)

Law enforcement almost uniformly likes the bill, since a bigger database of DNA, one that collects samples from even low-level offenders, means more matches with crime-scene evidence, and presumably, more cases being closed. 

The bill's proponents aren't simply selling it as a crime-fighting tool; they also argue that a more robust database, one that identifies more perpetrators, will help prevent wrongful convictions too. The governor's office has touted the current database—which covers 48 percent of crimes—has "provided leads in over 2,700 convictions and led to 27 exonerations of the wrongfully accused."

But according to the people who have made a career of pursuing exonerations, the database without the reforms does't much help.

"This isn't even on the map as a wrongful-conviction reform," said Stephen Saloom, a policy director at the Innocence Project, which has consulted or represented clients in more than half of the country's nearly 300 DNA exonerations. 

The most obvious problem, according to Lentol, is that defendants don't have sufficient access to pursue their own innocence claims by requesting their own tests of the databank. "That has to be fair; everybody gives lip service to DNA convicting the guilty and protecting the innocent, and you really have to put that in perspective," Lentol said. "Because it does convict the guilty and it ought to be used equally to protect the innocent." 

The broader problem, as Saloom and others see it, is that the state's processes for dealing with the majority of investigations—only about 10 percent of serious felonies have DNA that can be used to identify a suspect—continues to lag behind dozens of other, less progressive states.

The reformers would like to see New York adopt two new processes: changing the way law enforcement conducts police line-ups, and videotaping all the interrogations of suspects who are in custody.

"If you enacted those it would do much more to protect the innocent, to protect victims, and to help law enforcement apprehend and convict real perpetrators than anything in this database expansion," said Barry Scheck, the co-director of the Innocence Project.

Currently, guidelines for New York's police line-ups suggest, but don't require, that the officer administering the line-up be unaware of the actual perpetrator (called a "double blind" line-up), a problem which defense advocates say often leads to implicit suggestions and cues that push the witness to pick the intended suspect. New York often asks witnesses to identify a subject in a live line-up after identifying them in a photo line-up, which Scheck said often validates a mistaken identification.

He called New York's process "plainly the most counterproductive and unreliable method in the country, and hideously and unnecessarily expensive."

"Remember, eyewitness identification occurs in all kinds of cases where there plainly isn't any DNA and is the single greatest source of wrongful ocnvictions, both nationally and in New York," he said. "So it's silly."

Reid Pillifant

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