The Legal Aid Society

199 Water Street

New York, New York, 10038

PUBLIC COMMENT
Proposal to Implement Familial Searching in New York State

(I.D. No. CJS-30-17-0025-P)

September 11, 2017

Submitted by:

Allison Lewis
Staff Attorney, DNA Unit

David Loftis
Attorney-in-Charge Post-Conviction and Forensic Litigation

We submit these comments on behalf of The Legal Aid Society.

The Legal Aid Society is the nations largest and oldest provider of legal services

to low-income families and individuals. From offices in all five boroughs of New York City,

the Society annually provides legal assistance to low-income families and individuals in

some 300,000 legal matters involving civil, criminal and juvenile rights issues. The

Society operates three major practices: the Criminal Practice, which serves as the primary

provider of indigent defense services in New York City: the Civil Practice, which improves

the lives of low-income New Yorkers by helping families and individuals obtain and
maintain the basic necessities of life housing, health care, food and subsistence income

or self-sufficiency; and the Juvenile Rights Practice, which represents virtually all of the

children who appear in Family Court as victims of abuse or neglect or as troubled young

people facing charges of misconduct.

During the last year, our Criminal Practice handled some 220,000 trial, appellate,

and post-conviction cases for clients accused of criminal conduct. Because of the breadth

of The Legal Aid Societys representation, we are uniquely positioned to address the

potential consequences of the authorization of the use of familial searching upon the

community we serve.

The New York State Division of Criminal Justice Services (DCJS) has proposed

a rule to amend Part 6192 of Title 9 NYCRR, published in the New York State Register

on July 26, 2017, pages 8-9. This comment is submitted during the mandatory 45-day

public comment period for consideration by DCJS.

The Legal Aid Society adamantly opposes the use of this technique.

First, and most critically, the Commission on Forensic Science (Commission) and

the DNA Subcommittee are not the proper bodies to authorize familial searching. These

bodies were not created to determine policy concerning fundamental privacy rights or to

weigh a law enforcement initiative seeking new, expansive investigative power. For

executive agencies to make such a determination is an abuse of power. This is

particularly so considering, earlier this year, the legislature had before it a bill governing

the use and dissemination of the genetic information contained in the states DNA

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database.1 This is the appropriate venue; the legislature has historically made

determinations concerning database expansion. That body is uniquely charged with

protecting the rights of its constituents and assessing the concerns of law enforcement.

If the legislature wishes to proceed with familial DNA searching it may seek the

Commission and Subcommittees input as to how to do so. But, the proposed rule

change oversteps the bounds of the Commissions mandate, places DCJS in the position

of deciding which rights are reserved for our citizens and which are not, and, as such,

usurps the legislatures role.

Second, as public defenders, we oppose familial searching on additional

constitutional grounds. We are concerned that this technique will disproportionally affect

people of color and indigent communities. This disparate effect would be a grave violation

of the Equal Protection Clause, of both US Constitution and the New York State

Constitution. This disparate impact is inevitable, as familial searching doubles down on

broken windows policies and the historical over-policing of communities of color. 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. As

defenders, we see firsthand the damage that the collateral consequences of any

involvement with the criminal justice system can have on innocent family members. That

harm cannot be overstated.

Third, The Commissions proposal, at a very basic level, violates our system of

checks and balances. An executive body itself, the Commission authorizes the expansion

1 We note that legislation to authorize the use of familial searching has recently been introduced in the state
legislature as Bill No. SO8216. The introduction of this bill should be interpreted as an acknowledgment that this is
a matter best handled by elected officials in a legislative context.

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of police power, yet lacks the institutional power to oversee the investigations that it

purports to permit. There is no provision for citizens to report abuse or for any

assessment of the impact of familial searches on targeted communities. Moreover, as

DCJS has no authority over police investigations, or remedial power over police abuses,

the statutory restraints suggested for such investigations are illusory. The expansive

power given over to the police is in the form of a blank check, loosed from the

constitutional constraints that protect New Yorkers.

We urge DCJS to refrain from enacting such a rule change and to allow this matter

to be properly considered by elected officials in the normal legislative context where all

community stakeholders have the opportunity to be heard.

1. Legislative Authority

The New York State DNA database (SDIS) contains DNA profiles of

individuals who have been convicted of crimes under the states penal law. NY

Exec Law 995-c(6) restricts the release of DNA information contained in SDIS to

law enforcement for the sole purpose of identification. By definition, familial

searching falls outside of what is permitted. Familial searching is exclusively

employed after a traditional database search results in a no hit result, meaning

no suspect profile in the DNA database matches the crime scene evidence.

Familial searching, then, is an expansion of the SDIS system beyond its legislative

purpose: a way to mine additional genetic information from the database to allow

law enforcement to investigate citizens who have no criminal history, and who were

never intended to be included in database searches.

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 Although the plain language of the statute makes clear that the legislature

did not intend for the DNA database to be used for familial searches, consulting

the recent legislative history should erase any residual doubt. When the legislature

expanded the SDIS in 2012 to include the genetic profiles of all individuals

convicted of crimes under the Penal Law, there was significant concern that this

expansion would be used as an incremental step to create a universal DNA

database. Sponsor of the legislation and chair of the Committee on Codes, Joseph

Lentol, assured fellow lawmakers that the 2012 expansion would be the last, and

that the database was to be used to collect information for criminal offenders only.

The following exchange from the Assembly minutes is instructive:

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6
7
(NY State Assembly Debate Transcript, Chapter 19, Criminal Procedure Law/ Executive

Law, March 15, 2012) (Full transcript available upon request.)

These minutes demonstrate that lawmakers did not believe it would be lawful to

expand the scope of the DNA database beyond people with convictions. More

fundamentally, lawmakers expressed that historically database expansion was within

their province. The discussion of past expansions, and the limits to be placed on future

proposals for further expansion were fully anticipated by Assemblyman Reilly. And the

issue of expansion was weighted against the liberty interests of citizens. They expected

to revisit this issue and the attendant civil liberties questions within their chamber, and

framed the outer limits of possible expansion (the DNA data base should not expand to

citizens without convictions). It follows that they would not expect an unelected

government body charged with overseeing issues like accreditation of labs and personnel

control to legislate on the issue in their stead. Given the careful thought and

consideration the legislature gave the issues surrounding the databases, it would be

improper to carry on with any expansion in the place of the legislatures discretion and

process.

As the law stands, the use of SDIS to probe genetic information concerning

potential family members of convicted offenders violates the statutory language of Exec.L.

995-c and is an abuse of the intended purpose of that legislation. In creating the DNA

database, lawmakers balanced both the public interest in effective law enforcement and

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that of individual privacy. Several states have struck this balance differently from our own,

creating suspect databases that included arrestees, for example. After careful and

thorough deliberation, our states elected officials limited our database to investigating

and searching convicted offenders, but not their law-abiding relatives. Should the Queens

County District Attorney, who pressed the current proposal, or another law enforcement

agency, wish to re-visit the composition and use of SDIS, they should do so through the

democratic legislative process. No less is required by statute.

The Forensic Commission simply lacks the statutory authority to authorize DCJS

to release an individuals information from SDIS to law enforcement for reasons other

than direct full profile comparison. Even if this was not crystal clear and it is -- our

representative government requires prudence from appointed officials, and it would be in

the publics interest for DCJS to defer this question to the appropriate elected officials

given the broader implications of familial searching on genetic privacy and other matters

of great public concern.

2. Familial Searching represents expansion of investigative authority that

will disparately impact African Americans, Latinos, and poor communities.

The Legal Aid Society is acutely aware of the impact that arbitrary and

suspicionless searches have on our clients communities, having represented thousands

of clients subject to the unlawful stop and frisk policies of the NYPD. The impact of law

enforcement over-reach on vulnerable communities cannot be overstated.2 Therefore, we

regard any law enforcement attempt to investigate individuals based on nothing more

2 The Center for Constitutional Rights compiled a comprehensive report on the far-reaching implications of stop
and frisk available at https://ccrjustice.org/sites/default/files/attach/2015/08/the-human-impact-report.pdf

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than a possible genetic association with an individual in an offender database with a high

level of concern. This is especially so given that, based on trends in policing, we know

the states DNA database to be disproportionately composed of African Americans,

Latinos, and the poor.3 It is inevitable that these communities would be the primary

targets of investigations initiated from familial searching.4

Familial searching, at its core, uses information that does not relate to behavior or

conduct to target individuals. As such, the vast majority of those targeted will be innocent.

Because the database disproportionately holds the genetic profiles of people of color,

when there are false positives (when the family members of convicted offenders are

wrongly targeted) those innocent targets of police action will be disproportionately people

of color. This effect from a law enforcement strategy is not without precedent. In Floyd,

et. al., v. New York, Judge Scheindlin found that the New York City policy of stop and

frisk to be unconstitutional; the practice targeted people of color, thus violating the Equal

Protection Clause of the Fourteenth Amendment. Floyd, et al. v. City of New York, 959

F. Supp.2d 540 (SDNY, 2013). Beyond the physical intrusion itself, the mistrust of law

enforcement and resentment it engendered was also considered. The Supreme Court

has recognized that the degree of community resentment aroused by particular practices

is clearly relevant to an assessment of the quality of the intrusion upon reasonable

expectations of personal security. Id. at 556-557 (citing Terry v. Ohio, 392 U.S. 1, 14,

n.11 (1968)). When Mayor Bill de Blasio ended the citys use of stop-and-frisk as crime

3 Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons, June 2016; Sonia Sutter,
All in the Family: Privacy and DNA Familial Searching, 23 Harv. J. L. & Tech. 309, at 368-369 (2010).
4 Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 292, 321-325 (2010);
Daniel J. Grimm, The Demographics of Genetic Surveillance: Familial DNA Testing and the Hispanic Community,
Col. L. Rev. 1164 (2007).

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prevention, he too conceded that police practices had unfairly targeted young African-

American and Latino men.5 Broken windows policing has had a similar effect in the

issuance of summonses. A class-action lawsuit alleging discriminatory practices against

African-Americans and Latinos and averring the use a quota system to increase the

number of issued summonses was settled earlier this year. Stinson et al v. City of New

York, 1:10-cv-04228-RWS, SDNY, Justice Robert Sweet, Judgment approved 6/19/17.

The City agreed to pay $75,000,000 to cover the 900,000 summonses at issue.6

It is against this backdrop that the Commission wades into familial searching

techniques and police action that will disproportionately affect communities of color.

Community resentment aroused by [these] particular practices will grow,

notwithstanding the claims that the police intrusions will not be overly burdensome.

Community members will know that merely through familial association they too could be

placed in a pool of suspects examined and genetically investigated. No matter how

upstanding their life or how valued they are to the community, they will be considered a

member of a suspect class. Few things can be more denigrating than that. Or more

permanent, as a relatives profile might be in the database in perpetuity. The State

Assembly rejected the notion of a universal database. This is more invidious, as it

separates out and targets communities of color, thus creating a suspect class of innocent

citizens. Neither the Commission on Forensic Sciences, nor the DNA Subcommittee is

in a position to authorize a policy that will have a profound and disparate effect on minority

5 Benjamin Weiser, NewYork City to Pay up to $75 Million Over Dismissed Summonses, The New York Times (Jan.
23, 2017), available at https://www.nytimes.com/2017/01/23/nyregion/new-york-city-agrees-to-settlement-over-
summonses-that-were-dismissed.html

6 Id.

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communities. Lawmakers and politically accountable actors must make this decision

based upon careful scrutiny of the data, consideration of the wishes of their constituents,

and proposed legislation that outlines protocols and procedures according to the law. This

is simply not the forum.

Similarly, there is no compelling argument that investigatory leads justify these

intrusions. Effective law enforcement does not overcome illegal intrusions. The Court in

Floyd notes, Many police practices may be useful for fighting crime preventive

detention or coerced confessions, for example but because they are unconstitutional

they cannot be used, no matter how effective. Floyd at 2. In balancing the interests of

privacy and security, the Court noted that the unconstitutional police practice of stop and

frisk resulted in law enforcement action, either in the form of an arrest or summons, in

12% of the individuals stopped. Floyd, at 6. While the court struck down this practice as

unconstitutional, it also noted that its success rate was negligible. Notably, the stop

and frisk success rate easily outpaces the anticipated success of familial searching.

Our fear of the potential abuses associated with familial searching are

compounded by the fact that, as noted below, the proposed rules do not provide specific

guidance as to criteria for searches, handling or dissemination of information resulting

from said searches, or protocols for pursuing and investigating individuals who come to

the attention of law enforcement as a result of familial searching. The proposed policy is

also notably lacking any review process or remedy proposal, either for instances of

overuse of the technique or for abuses of the information disclosed in each instance. Nor

is there any review process in place to determine whether the policy itself has any

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measure of success or whether the public resentments and mistrust identified in Floyd

are so great as to warrant recalling the policy.

3. The proposal provides no mechanisms for accountability and lacks

effective legal safeguard

A third major problem created by the Commissions proposed overreach is that

the Commission does not have the institutional power to oversee the investigations that

it purports to permit. Most critically, there is no recourse for citizens subjected to over-

policing, or other abuses that will likely result from this policy. It is axiomatic in our society

that where there is power, there must also be checks and balancesmechanisms to hold

those with power accountable. Yet here, the Commission has expanded police power to

conduct suspicionless searches and investigations based on familial relationships alone,

while creating no mechanism to allow for remedies when the innocent are falsely targeted,

and no requirement that these abuses be recorded and reviewed to assess the impact of

such searches on affected communities. This is particularly troubling as the majority of

citizens subject to familial searching will be innocent.7 While law enforcement has

claimed the searches would cause limited intrusions, such thin police promises are hardly

a constitutional check on police power. Given the discriminatory and unlawful conduct

exposed in both the stop-and-frisk and summons law suits, the proposed amendments

are untenable, as the police conduct here is not answerable to complaints concerning

investigation methods.

7 The amendment is vague on how many innocent people might be subject to familial investigations. While it
proposes to evaluate the candidate list based on established kinship threshold there is no insight as to what that
that threshold might be. 9 NYCRR 6192.3 (j)(2). As a result, there is an alarming lack of clarity as to how many
innocent family members will be caught up in this process.

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 What is more, the Commission of Forensic Science itself has no power to remedy

this omission. The Commissions mandate is to oversee forensic laboratories; it has no

mandate over law enforcement. So, though it has authorized suspicionless searches, it

has no authority to regulate them. But, even if such rule-making authority existed,

practical concerns would make it ineffectual. Citizens are unlikely to report claims of

abuse to the very law enforcement authorities causing them harm, for fear of retaliation.

Citizens would be equally unlikely to report concerns to the Commission on Forensic

Science, or an executive entity (such as the Commissioner of DCJS) that it might

designate to receive complaints of police abuse. As part of the executive branch, such

an entity would hardly allay fears of retaliation, and additionally, it would have no remedial

authority over police investigations. For these reasons, the power to expand or contract

police power resides within our legislative branch. That body can establish, either through

courts or an independent agency, a mechanism to independently review the expansion

of police powers. Or, the legislature may conclude that such expansion is unwise, as the

risk of abuse is too great. As previously discussed, when the Assembly considered the

collection of samples from innocent civilians in 2012, its members made clear that this

practice would affront the civil liberties of their constituents. The Commissions end run

around the legislative process has approved the type of practice specifically avoided by

our state legislature. In addition, it has created a monitoring and accountability problem,

rooted in our system of checks and balances, which it cannot solve.

A related problem with the Commissions amendment is that, though it borrows

some legislative terms, it lacks the legislatures corresponding authority for enforcement.

The proposed limits that the amendment places on familial searching are illusory. The

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origin of the problem is quite clear. When the Queens District Attorneys Office and the

New York City Police Department sought to expand their investigatory powers through

familial searching they sought the imprimatur of the Commission on Forensic Sciences

an executive agency that has no authority over law enforcement investigations or any

remedial power over the interactions between law enforcement and citizens.

Moreover, the DNA Subcommittee is solely charged with promulgating the

Commissions rules and relevant amendments related to DNA. The Subcommittee,

however, consists only of scientists. And only one of these scientists actually resides in

New York. The language drafted by the Subcommittee and put before the full Commission

for a vote is binding; the Commission has no authority to change any of it. The protocol

for drafting rules within the Commission is telling. It vests only scientists who have

technical knowledge in scientific assays to draw up language, signaling that the rule-

making function is limited to scientific assays. While these scientists are experts in their

fields, they are scarcely in a position to know the legal scope of even the Commissions

authority, and are ill equipped to discern the rights enjoyed by our citizens or the

corresponding limits place on law enforcement actors. It is with that understanding that

the proposed amendment must be reviewed.

Perhaps sensing the constitutionally infirm nature of familial searches, the

amendment provides that other means of police investigation must be used before

resorting to familial searches. 9 NYCRR Section 6192.3 (h)(2)(i). Yet the proposed

amendments lack of enforcement mechanisms will render this restraint useless. The

amendment reads, The investigating agency must certify in the form and manner

required by the division, that reasonable investigative efforts have taken place. 6192.3

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(h)(2)(i). The drafters from the DNA Subcommittee do not suggest what, precisely, this

certification must contain. They propose only that an executive agency, the division,

devise some sort of certification for law enforcement, a fellow executive agency, to follow.

The drafters of Subcommittee, lacking authority to do so, failed to provide for judicial

review or any sort of oversight beyond the executive branch concerning what constitutes

reasonable investigative efforts.

The Commissioner of the New York Department of Criminal Justice Services,

seated in Albany, pursuant to section 6192.3 (i)(2)(i), is to review completed applications

for familial searches. The Commissioner would presumably review what reasonable

investigative efforts might be. The Commissioner, however, lacks the judicial acumen,

the precedent of decisional law, and the independence of the judiciary to carry out this

task. His position of overseeing the Forensic Science Commission does not grant him

the authority to review or define reasonable investigative efforts. As a political appointee,

the Commissioner is unlikely to push back against police authority. Furthermore, removed

as the Commissioner is from the effects of the proposed practices, both geographically

and as a result of his position, the prospect of the Commissioners reviewing police activity

in New York City is as implausible as it is unwise. Thus, while cloaked in the language of

legislative restraint, the amendment in practice will do little more than rubber-stamp law

enforcement activity.

But if this were not clear from the start, section 6192.3 (i)(2)(ii) allows law

enforcement to side-step the loose certification requirement altogether when exigent

circumstances exists requiring familial searching. In other words a suspicionless search

can be ordered if one executive body (the NYPD) suggests to another (here, again, the

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Commissioner) that an exigency exists. Yet there is no suggestion as to what types of

exigencies are appropriate, what the standard of proof is, or what sort of evidence can be

used to make this showing (which again is not particularly surprising as the legislation

was drafted by scientists). The same concerns discussed above, regarding the

Commissioners lack of authority over police investigations, will prevent the

Commissioner from adequately regulating and enforcing the exigent circumstances

requirement. These concerns, already salient, are more acute here. Police investigations

occur daily. The Commissioner is not meant to check on daily police activity and its

exigencies, and cannot realistically assess them from Albany. Furthermore, the

Commissioners office is not free of the pressures that may affect the decision-making

process. These shortcomings will be most on display in high-profile cases, in which law

enforcement will be quick to make claims of exigency, and public opinion and the press

will create pressure to solve the crime at all costs. This is why the Legislature ordinarily

confers the review of investigative measures to the judiciary, as judges are in a better

position to understand the legal consequences of certain police tactics, and are also more

detached from the pressures created by high-profile cases. Finally, should a false or

otherwise inaccurate showing of exigency lead to evidence wrongly being released to the

police for familial searching, the Commissioner has no remedial power over that

investigation.

In sum, the reasonable investigation requirement and the exigent circumstance

exception will do little to stem suspicion-less searches in communities of color. The

language of is loose, the exception broad, and the reliance on the Commissioner as a

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check on police power is structurally unsound and not authorized either legislatively or

constitutionally in this context.

Other proposed restraints will prove equally infirm. Sections (h)(1)(i), (ii), and (iii)

purport to limit familial searching to certain enumerated offenses: Penal Law sections

125, 130, 135, 150, and 490, which are essentially homicides, violent sexual assaults,

and other class A felonies. But the amendment then allows familial searching for any

crime presenting a significant public safety threat. (h)(1)(iv). It does not suggest what

showing must be made to fit within this catchall, or which crimes codified in the penal

code would not present a significant public safety threat. Again, it would appear that the

Commissioner himself would adjudicate these issues with neither the weight of precedent

nor the authority over criminal investigations.

There is a still greater concern. The Commission itself provided the list of what

constitutes an enumerated offense, not the Legislature. Should law enforcement advance

some future initiative -- perhaps for gun cases, or for even lower level offenses -- they

need only apply to the Commission for any expansion of offenses. By usurping the role

of the Legislature, the Commission has provided itself a toehold to extend familial

searching to whichever crimes, and affected populations, it sees fit. The limitation of

enumerated offenses is, then, illusory, not just because of the cavernous exception it

affords the government, but also because of the Commissions unlawful expansion of its

rule making function.

The proposal contains language where the Commission tries to influence law

enforcement behavior. But such influence is curtailed by its lack of authority over the

investigation process. While law enforcement must watch a training video prior to

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receiving the names connected with familial searches8 and receives a written statement

that the information provided shall be treated only as an investigative lead,9 there is no

more guidance or limitation provided about what the ensuing investigation can or cannot

entail. There is also no provision for documenting contact with affected citizens. This sort

of pinky-swear promise that the unmonitored investigations will run a lawful course seems

severely out of place on the heels of a $75,000,000 settlement over unlawful summonses

and the documented racial profiling in stop and frisk policing.

Moreover, the proposal is silent concerning the disposition of evidence taken from

innocent citizens. The statute notes that familial searching may be used for investigative

leads and provides that agencies may have a forensic sample re-searched should

those initial leads not pan out an implicit admission that innocent people will be swept

up and have their DNA samples taken.10 The statute is silent on the mechanisms for

how the police will secure the DNA samples. The swabs law enforcement takes will have

the entire genome of citizens who may be proven innocent. There is nothing that prevents

these samples from being stored in local crime lab databases in perpetuity. In other

words, after a routine familial search a citizen might be placed in a class of suspected

citizens whose profiles are stored in a local (unregulated) database even though the

investigation established no wrong doing. Indeed, if the sample were collected

surreptitiously, a citizen would not even know the government possessed his or her entire

genetic identity, which might be used for further searches, experiment, or whatever the

government chooses to do with the biological material. The issues go beyond quibbles of

8 9 NYCRR Sect. 6192.3 (k)(1).

9 9 NYCRR Sect. 6192.3 (k)(2)(iv).
10 9 NYCRR Sect. 6192.3 (k)(3) & (4).

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statutory interpretation, or the spheres of co-equivalent branches of government. The

concerns surrounding familial searches are at the heart of issues of race and class, and the

deep-seated notions of how we perceive privacy and liberty in a free society. Such

concerns are by their nature outside the Commissions scope, and the proposed

amendment should be withdrawn.

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