BILL NUMBER: S226

SPONSOR: GIANARIS
 
TITLE OF BILL:

An act to amend the executive law, in relation to prohibiting the use of
DNA phenotyping in criminal prosecutions and proceedings

 
PURPOSE:

This bill prohibits contracting for and use of DNA phenotyping products
by law enforcement.

 
SUMMARY OF PROVISIONS:

Section one amends the executive law by adding section 838-c by first
establishing definitions of the terms "DNA phenotyping" and "physical
biometric information." This section also prohibits law enforcement
agencies and members from contracting for DNA phenotyping services and
does not allow product or evidence resulting from DNA phenotyping as
reasonable cause for arrests, for use in an investigation, and for
admitting to the record in court. This section then provides an avenue
              

for relief for those who have been convicted as a result of DNA pheno-
typing.

Section two sets the effective date, and orders law enforcement and
peace officers to destroy any physical biometric information they
possess as a result of DNA phenotyping.

 
EXISTING LAW:

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JUSTIFICATION:

DNA phenotyping is the process by which someone's DNA is analyzed to
predict their physical characteristics, including, their eye color, hair
color, skin color, freckling, face shape, and ancestry.  Recently,
police agencies across the country have contracted with laboratories
which conduct DNA phenotyping to develop "virtual mugshots" based on DNA
obtained by law enforcement to search for potential criminal suspects.
The use of this technology is problematic for many reasons. First,
phenotyping cannot accurately predict physical appearance. Aside from
scientific uncertainty, the technology is unable to take into account
environmental factors that determine how someone looks; for example,
disease, physical activity, injury, sun exposure, body modification, and
other factors can alter someone's appearance in ways that cannot be
predicted from a person's genetic code. Because of this, virtual
mugshots risk being used to establish probable cause to arrest a person
for a crime they did not commit.

Additionally, mistaken identifications tend to disproportionately impact
BIPOC and marginalized communities due to the effect of social preju-
dices in the identification process. Throughout scholarship on cross-
race racial identifications, it is well known that cross-race identifi-
cations are notoriously inaccurate and have led to numerous wrongful
convictions.  Ultimately, this technology undermines fairness and public
confidence in our criminal justice system.

Detractors may argue that although the full picture produced with pheno-
typing technology may not be wholly accurate, certain highly heritable
traits, like eye color, can serve as a reliable basis to construct a
mugshot. However, this is misleading because witness identification
scholarship suggests that people process faces holistically as opposed
to on a trait by trait basis. However, even in the context of a full
facial image, the risk for misidentification is still very high. Accord-
ing to the Innocence Project, "mistaken eyewitness identifications
contributed to approximately 69% of the more than 375 wrongful
convictions in the United States overturned by post-conviction DNA
evidence." Overall, DNA phenotyping is part of a broader movement to
harness technology to curtail our civil liberties in the name of public
safety and security. New Yorkers deserve a criminal justice system that
respects civil liberties in the pursuit of public safety and security.

 
LEGISLATIVE HISTORY:

2022: Died in Codes

 
FISCAL IMPLICATIONS:

None to the state.

 
LOCAL FISCAL IMPLICATIONS:

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EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law and any physical biometric information obtained as a result
of DNA phenotyping already in possession of law enforcement and peace
officers shall be immediately destroyed.