They say you are the company you keep. Should that apply tenfold for the family you’re born into? Law enforcement certainly thinks so. But if guilt by association still strikes a chord, we should all be concerned with familial DNA searching, because it is guilt by genetic association.
Imagine learning you are the target of a police investigation for a violent crime, not based on suspicion, but because a close relative was convicted of a crime and you share DNA. Familial searching scans the convicted offender database not for full matches, but for close non-matches to crime scene DNA, hoping someone in the database is related to the person of interest. From there, anyone in their family tree is a possible suspect, and many innocent people may wind up targeted by police.
Once you become a viable target (meaning, not an infant or in jail at the time of the crime), the cops may nab your DNA profile from a discarded soda can while you’re not looking. Hopefully, the DNA will establish your innocence (though consider Lukis Anderson, whose DNA was recovered from the fingernails of a murder victim but luckily had an airtight alibi), and hopefully they won’t store it forevermore (though consider the unregulated New York City database, which stores thousands with little oversight).
Then again, the investigation could take a more perilous turn. The police question your neighbor or boss. What if you come to find out your baby brother was convicted of a crime? Or that you have a baby brother? Or your dad isn’t your biological father?
Proponents claim familial searching is a “no harm, no foul” situation and only generates potential leads. If there’s no more evidence connecting a person to a crime, they say, that’s that. Only the guilty should be worried, they say. But “generating leads” is another way of saying they get to poke around with zero probable cause or accountability. And the harms are real.
Not all New Yorkers experience the harms of the criminal justice system the same way. Communities of color, in particular, have known for years the damage done by invasive surveillance and over-policing. Because familial searching utilizes the convicted offender database (including broken windows and quality-of-life violators), the method promises to extend that disgraceful legacy.
This month, an appellate court struck down the use of familial DNA searching in New York, finding the unelected members of the Commission on Forensic Sciences overstepped their authority when they took it upon themselves to approve it in 2017. The court ruled that the decision to use this controversial technique is a matter of policy only legislators can make.
The court also acknowledged the disparate impact this method will inevitably have on communities of color: “The likelihood of being targeted because someone is a person of color (likely a male) is increased, a consideration that can only be evaluated as a matter of social policy, not science.”
Indeed. By trolling the database for potential connections to law-abiding relatives, this technique endorses the rationale that those related to criminals are more likely themselves criminals. What’s worse, the NYPD makes no secret that it agrees. Emanuel Katranakis, the NYPD’s chief of forensics, repeatedly cites a statistic that almost half of all prison inmates have a close relative who had also been in prison, arguing that “this supports the belief in and bolsters the efficacy of familial searching to produce valuable leads.” It turns out this thinking is not just dangerous but scarcely effective. As the appellate court notes, the Department of Justice reports that successful prosecutions based on this technique are rare.
All New Yorkers want to prioritize safety, which requires striking a balance with privacy. But we must remain vigilant to strike that balance the same way for all New Yorkers. Albany lawmakers have considered familial searching over the years, but repeatedly left it on the legislative cutting room floor. It seems like the perfect place for this inequitable policy.
Lewis is staff attorney with the DNA Unit at The Legal Aid Society.