Should DNA be collected from all criminals?

In most cities and states, vandalism, shoplifting, and loitering are misdemeanors - possibly involving community service, not jail time. But those who commit such low-level crimes in New York State may soon be required to give DNA samples to authorities - just as convicted rapists or murderers do.

If the Legislature passes the proposal, which is currently being debated, New York would be the first state in the nation to require DNA samples for all convicted offenders.

Gov. George Pataki (R), who is asking the Legislature to expand DNA collection, argues that a larger database will help solve more crimes. Supporters add it will help solve future crimes because criminals who start off committing petty crimes sometimes graduate to more serious offenses.

The Empire State's move comes as DNA work in criminal investigations is under closer scrutiny. Complaints are rising about mistakes - some inadvertent, others fraudulent - at DNA labs around the country. Groups that have championed the use of DNA to verify the guilt or innocence of convicts are now campaigning against large-scale expansion of the practice, saying it would overwhelm labs. Others cite concerns about the increasing number of innocent people whose DNA is stored in a databank without their knowledge or approval.

"People have come to appreciate the power of DNA to solve crimes. They now need to respect the care that is required to maximize its potential and avoid its abuse," says Stephen Saloom, policy director for the Innocence Project, which has used DNA testing to free 176 prisoners wrongfully convicted.

Twenty-eight states now collect samples for some misdemeanors, according to DNAResource.com, a website that tracks DNA policies. A week ago, Kansas joined California and five other states in going one step further: taking the DNA samples of some people arrested, but not necessarily charged, with a crime.

"They all tend to be violent felony and burglary arrestees," says Lisa Hurst, a government-affairs consultant with Smith Alling Lane, which represents Applied Biosystems, a maker of DNA testing equipment. Smith Alling Lane also runs DNAResource.com.

New York's proposal, however, would go the furthest, requiring DNA collection for all convicted of misdemeanors. This would add about 80,000 additional DNA profiles per year to the DNA bank, say researchers at the state's Division of Criminal Justice.

It would be well worth the effort, says Chauncey Parker, director of criminal justice for the state. "Whenever we get DNA from a convicted offender, we run it against the 18,000 unsolved crimes, mostly rapes, and we have 2,400 hits so far. When we look at those hits, we find on average when [an arrestee] is convicted, it's [his or her] 12th conviction."

He cites the example of Raymon McGill arrested July 25 for attempted robbery. DNA testing linked Mr. McGill to two earlier murders and a rape, says Mr. Parker. He also notes that McGill had been arrested in 1999 for a misdemeanor.

"Had we required DNA fingerprinting back then, he would have been linked to the rape and the case solved," says Parker.

On Monday, critics of the New York proposal publicly complained that the backlog of cases is already large. Tom Duane (D), the only state senator to vote against the New York measure, worries about the cost of expansion, as well as how to ensure proper training of personnel and storage of the samples. "What good will it do if it's not done right?" he asked.

Such concerns go well beyond New York. In February, the National Association of Criminal Defense Lawyers, in their magazine, published an article detailing mistakes that have cropped up at DNA labs around the country. "Many of the mistakes arise from cross-contamination or mislabeling of DNA samples," wrote William Thompson, a professor at the University of California, Irvine.

Thompson's concerns arise just as states and cities are expanding their use of DNA testing. Los Angeles County is preparing to open a new crime lab in 2007. A proposed county budget included funding not only for the lab, but also for prosecutors and public defenders training in DNA technology. Nebraska recently passed a bill to include felony robbery and burglary convictions among those requiring DNA samples. Wisconsin is considering a bill to add some misdemeanor-related sex crimes to its DNA-collection requirements.

But with such expansions come concerns. Mr. Saloom of the Innocence Project objects to law-enforcement agencies holding the DNA of innocent people, especially those who merely cooperated with an investigation. These samples should be destroyed, he says. "The fundamental values of government accountability and personal privacy are at stake," he says.

Some of these arguments resonate with Assemblyman Joseph Lentol (D), chairman of the Assembly Codes Committee, which deals with criminal sanctions. "We are asking [DNA labs] to destroy the DNA of an innocent party," says Mr. Lentol. "This is a privacy issue."

Parker, the director of criminal justice for the state, says cooperating individuals can ask a judge to order their samples to be returned. "The burden is on the police to always demonstrate to a judge that whatever evidence they are collecting, whether it's a DNA fingerprint or a photograph or a handwriting sample, that it has been collected lawfully and that it's being used for a lawful purpose," he says.

In addition, Assemblyman Lentol also worries that private labs will use DNA information for commercial gain. "There is an almost limitless possibility of ID theft," he worries.

That concern is addressed in the pending legislation, Parker says, by increasing the penalty for unlawful use of a DNA sample.

The governor and lawmakers have until the end of the legislative session, June 22, to come to terms on the proposal.