This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

MYTH: New York State through the police can take, analyze, and use anyone’s DNA sample in the present or future law enforcement.

REALITY:  The vast majority of DNA samples in New York are collected either openly by police (with the subject person’s consent) or secretly, such as by DNA taken from soda cans, coffee cups, or other related ways.  About 32,000 people have samples on file in New York State.  About 8,000 of those people have never been convicted of a crime.  Of those 8,000 about 20% are juveniles, who cannot legally be convicted of a crime.  Two main labs collect and compare DNA samples for New York City.  One is the New York City Medical Examiner’s Office.  They claim the largest public DNA lab in the state.  The other collector is the New York State lab.

Historically these agencies have handled the DNA samples differently from each other.  Both labs collect the DNA and analyze it.  The medical examiner’s lab analyzes the DNA sample, which can come from any source, and then compares it to other evidence of a crime to make a connection.  The State lab does only the initial analysis and not the comparison.  The State lab has on file only profiles of adults who have been convicted of major or minor crimes.

Various groups have now pressured the medical examiner’s lab to immediately stop making comparisons of DNA results.  The medical examiner has announced a new policy that they will no longer make comparisons unless the police produce associated evidence of a crime.  Associated evidence means other evidence found at a crime scene, like fingerprints, security photos, a witness, or other evidence.

The Legal Aid Society says that this new policy does not go far enough because it applies only to DNA evidence going forward, and does not deal with samples already on file.  That group includes juveniles, who, by law, cannot be convicted of a crime.  They also argue that the New York City Police Department is continually expanding its surveillance practices, and there is no promise that they will not exert pressure on the medical examiner to continue the collecting and comparison policy in the future, once this effort blows over.

Others say that the medical examiner is diligently removing samples of those not convicted of crimes or juveniles who are illegally in the system and have already removed about 20,000 hits.  They say that they are trying to promote fairness while permitting the use of scientific and unbiased tools for public safety.

MYTH:  If the United States Supreme Court makes a ruling, then all states are bound by the ruling, regardless of a state’s wish otherwise.

REALITY: The example that best illustrates the contrary principle is the issue of abortion.  Some analysts believe that the U.S. Supreme Court is about to turn ultra-conservative with the addition of Judge Amy Coney Barrett if she is confirmed.  They argue that then women’s right to choose abortion or not will be limited or eliminated.

At least five District Attorneys, or candidates for District Attorney, have pledged that if the U.S. Supreme Court strikes down the abortion case, Roe v. Wade, thereby outlawing abortion and a woman’s right to choose, they have a remedy.

District Attorneys argue that they have an obligation to uphold the U.S. Constitution.  They also explain that they have a duty that is greater than that.  That duty is to exercise discretion and independent judgment.  They already sometimes decline to prosecute particular crimes or entire categories of crimes.  For instance, adultery remains criminal in over 20 states, but it is not prosecuted.  The states and major cities with prosecutors who have signed on to the pledge not to prosecute abortion cases include New York, California, Tennessee, Colorado, Georgia, Massachusetts, and Vermont.

The public can expect vast arguments involving states’ rights in enforcement proceedings if this all comes to pass by a Supreme Court ruling overturning the Roe case.

MYTH:  The criminal justice system, and especially penalties for a crime, are unchangeable.

REALITY:  The New York criminal justice system is constantly scrutinized to try to make it the most efficient and responsive system possible.  Changes are often proposed.  A recent movement addresses the penalties of those who have served their time and are released from prison.

Currently, persons convicted of a crime must serve the sentence, minus certain periods for, among other things, good behavior.  However, whenever released, they are responsible for the court and other supervision fees.

A proposal called the End Predatory Court Fees Act would eliminate court fees, mandatory minimum fines, incarceration because of unpaid fines and fees, government seizure of commissary accounts set up for the prisoner’s use, probation fees, and asset forfeiture.  Those supporting the law argue that the convicted person has served the required time and should not be further punished.  They say it’s kicking someone when they are down.  They also argue that some municipalities are so vigorous with enforcement that the collected amounts actually account for the second-largest source of income to some municipalities. They say that some prisoners fulfill one of the main goals of prison, that is, they are rehabilitated, and sometimes earn college degrees or learn trades in prison.  However, they cannot become employed because of the heavy outstanding fees and the risk of returning to prison for not paying the fees.

Those not in favor of the law say that taxpayers should not pay the bill for convicted criminals.

We shall see whose argument carries the day.

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

Lockwood Law

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