The Legal Aid Society launched a broadside Monday at the state’s familial DNA testing proposal, saying the move is an abuse of power.
In June, the State Commission on Forensic Science voted 9-2 to allow the technique to be used by law enforcement agencies across the state in violent felony and sex crime investigations.
The method allows investigators to identify suspects by checking genetic material of relatives who are already in the state’s DNA database. It can be used to both identify and eliminate people as suspects.
In a brief written by Legal Aid staff attorneys Allison Lewis and David Loftis, the organization argues that the measure should have gone through the Legislature.
“The Commission on Forensic Science is unfit to greenlight statewide familial search as it involves issues well beyond the expertise of the Commission, including racially discriminatory genetic surveillance and basic personal privacy,” Lewis said.
“It’s an abuse of power that should be solely left to the Legislature to debate.”
Janine Kava, a spokeswoman for the Department of Criminal Justice Services, noted that the New York State Sheriffs’ Association supports the measure.
“We will review all comments we have received and determine next steps,” Kava said. “Our goal is to provide law enforcement with a proven scientific tool that has been utilized by 10 other states to help investigate and solve serious crimes, obtain justice for victims and exonerate the innocent without compromising individual protections.”
Once in place, the policy has to be reviewed every two years.
The Legal Aid brief also calls the move an unconstitutional violation of civil rights that will disproportionately affect poor blacks and Hispanics.
“Familial searching doubles down on ‘Broken Windows’ policies and the historical over-policing of communities of color,” they write.
“The systematic targeting of innocent people based on race is a statistical reality of familial searching because of the overrepresentation of people of color in the database.”
The commission, they write, is authorizing expansion of police power without the ability to oversee it and make sure the rules are being followed.
“The Commission’s proposal, at a very basic level, violates our system of checks and balances,” they write.
“There is no provision for citizens to report abuse or for any assessment of the impact of familial searches.”
Providing the DNA tool gives police a “blank check” unfettered by civil rights concerns, they argue, adding that the Division of Criminal Justice Services, which oversees the panel, should refer the measure to the Legislature for a vote.
The society’s lawyers are weighing further legal action.
“Although this decision seems to be predetermined, we are still weighing challenging options — including litigation and legislation — if it passes into policy,” Lewis said.