The NYPD Kept an Illegal Database of Juvenile Fingerprints for Years

By Alice Speri, The Intercept

13 November 19

or years, the New York Police Department illegally maintained a database containing the fingerprints of thousands of children charged as juvenile delinquents — in direct violation of state law mandating that police destroy these records after turning them over to the state’s Division of Criminal Justice Services. When lawyers representing some of those youths discovered the violation, the police department dragged its feet, at first denying but eventually admitting that it was retaining prints it was supposed to have destroyed.

Since 2015, attorneys with the Legal Aid Society, which represents the majority of youths charged in New York City family courts, had been locked in a battle with the police department over retention of the fingerprint records of children under the age of 16. The NYPD did not answer questions from The Intercept about its handling of the records, but according to Legal Aid, the police department confirmed to the organization last week that the database had been destroyed. To date, the department has made no public admission of wrongdoing, nor has it notified the thousands of people it impacted, although it has changed its fingerprint retention practices following Legal Aid’s probing. “The NYPD can confirm that the department destroys juvenile delinquent fingerprints after the prints have been transmitted to DCJS,” a police spokesperson wrote in a statement to The Intercept.

Still, the way the department handled the process — resisting transparency and stalling even after being threatened with legal action — raises concerns about how police handle a growing number of databases of personal information, including DNA and data obtained through facial recognition technology. As The Intercept has reported extensively, the NYPD also maintains a secretive and controversial “gang database,” which labels thousands of unsuspecting New Yorkers — almost all black or Latino youth — as “gang members” based on a set of broad and arbitrary criteria. The fact that police were able to violate the law around juvenile fingerprints for years without consequence underscores the need for greater transparency and accountability, which critics say can only come from independent oversight of the department.

“The NYPD is saying, ‘Trust us, these are law enforcement tools that we know how to use, and we are going to comply with the law, and we don’t really need anybody looking over our shoulder,’” Christine Bella, a staff attorney at Legal Aid’s Juvenile Rights Practice, told The Intercept. “This exemplifies that they’re not particularly trustworthy when it comes to arrest records.”

Denial and Obfuscation

It’s not clear how long the NYPD was illegally retaining the fingerprints of juveniles — or how many people have been impacted. But New York state has been using the Automated Fingerprint Identification System, a biometric system that stores fingerprint data, since 1989, and laws protecting juvenile delinquent records have been in place since at least 1977. While juvenile arrests have been on a steady decline in recent years, they were much higher in the 1990s and early 2000s, and Legal Aid lawyers estimate tens of thousands of juveniles could have had their fingerprints illegally retained by police.

Under New York’s Family Court Act, police can fingerprint and photograph youths under the age of 18 who are arrested for felony crimes. (Legislation that recently went into effect raised the age of criminal responsibility from 16 to 18.) Children under 13 can only be photographed and printed in connection to the most severe crimes. Police can then retain photographs and some records, like palm prints, which they are required to keep confidential. They cannot, however, hold on to fingerprints, which must be turned over to DCJS, the statewide repository for fingerprints, and then destroyed.

Additionally, all juvenile arrest-related fingerprints, photos, and palm prints must be destroyed by both NYPD and DCJS if there is a positive outcome to the case, meaning the charges aren’t filed, the charges are dropped or dismissed, or the juvenile is found to have committed a misdemeanor. The records must also be destroyed if a juvenile is found to have committed a felony but reaches the age of 21 without criminal convictions. (Under the law, juvenile adjudications are not considered convictions.)

Several years ago, Bella and Lisa Freeman, director of special litigation and law reform at Legal Aid’s Juvenile Rights Practice, started to notice that some of their clients had old police contacts showing up in their rap sheets that should not have been there because they occurred when the clients were under the age of 16. In one instance, a client was arrested when police ran fingerprints they shouldn’t have had on file at all.

The two lawyers started reaching out to different agencies about their maintenance of juvenile records, and whether they were destroying the fingerprints of juveniles as stipulated by law. When the police department replied that it had “sealed” the records instead, the attorneys grew suspicious. “When destruction is required, sealing does not go far enough,” they wrote in a demand letter outlining their concerns and threatening the department with legal action. The department’s failure to destroy arrest-related documents, they added, “is long standing and places thousands of individuals who have been arrested as juvenile delinquents or juvenile offenders at risk of serious negative consequences.”

Police officials subsequently met with the Legal Aid attorneys — but the conversations raised even more questions. In one meeting, officials told them in person that they were retaining juvenile fingerprints. But when the attorneys followed up in writing, police officials who were not present at the meeting told them they had misunderstood. “We did get a response from them that said that they denied that they were retaining fingerprints and somehow we misunderstood what was mentioned at the meeting,” Bella said. “Which we know we didn’t, there were several of us there.”

“We spent a ridiculous amount of time trying to understand why we were getting these very confusing responses,” Freeman added. “It was very effective obfuscation.”

Over the course of several months, the attorneys continued to push the police department for clarity, without success. Then, in 2016, DCJS officials who Legal Aid had also been pressing about their juvenile record-keeping admitted they had erroneously held on to tens of thousands of fingerprint records they were supposed to have destroyed: those of former juvenile delinquents who had turned 21 without being convicted of a crime.

“DCJS realized that they weren’t keeping up with their record destruction, and after an internal review they realized that they had to purge tens of thousands of fingerprints from the state database,” Bella told The Intercept.

DCJS notified all the agencies that had originally provided the fingerprint records, including the NYPD. “DCJS is hereby providing notification of your obligation to destroy all fingerprints, palm prints, photographs, and related information concerning the arrests of the individual(s) on the attached list,” the agency wrote, noting that the cases were “identified as the result of a recent data reconciliation.” DCJS declined to comment for this article.

But even after DCJS’s admission, NYPD officials continued to stonewall the Legal Aid attorneys. They took weeks to respond to each inquiry and denied they had received DCJS’s list of cases to expunge. It got to the point that, nine months after DCJS notified the NYPD of the need to destroy 5,000 fingerprints, Bella and Freeman themselves sent the department a copy of the letter from DCJS that police had claimed they never received.

When Bella and Freeman followed up again, in early 2017, to ask the NYPD if they had destroyed the list of records flagged by DCJS, police lawyers wrote in an email that “all fingerprints have been removed from AFIS.” That was the admission Legal Aid had been waiting for: The department was not supposed to have those fingerprints in the first place, and the email confirmed that for years they had been concealing what records they were retaining.

Secret Blacklists, Perpetual Suspects

That email was dated March 2017 — and the NYPD now maintains it is in compliance with the law. But the department seems to have quietly corrected its course without ever notifying city officials or the thousands of people whose records it maintained for years.

In a 2018 legal bulletin, the NYPD updated its policy about the dissemination and retention of juvenile records — in part in response to the “Raise the Age” legislation that went into effect that month. In the bulletin, the NYPD’s legal department highlighted that police “must not retain any copies of the (juvenile delinquents’) prints sent to DCJS” — even though that’s exactly what the department had done for years. According to Legal Aid, which filed public records requests for earlier versions of the policy, none of the documents provided by the NYPD referenced destruction of juvenile fingerprints.

Meanwhile, there remains no clear system in place for juveniles, or their parents, to check that the fingerprints have been destroyed.

“If a mother whose teen son is arrested calls me and says, ‘How do I know that my son’s fingerprints were handled appropriately? My son was fingerprinted. He’s 14. I’m scared. What does this mean for his future?’” said Bella. “We have the law that we can cite that says, at some point they will be destroyed, they’re being maintained now, these are the agencies that are responsible. But the young person and his mother can’t really walk into One Police Plaza. … There’s no mechanism for young people and parents to get the assurances that these laws that are in place are being complied with.”

“It is so difficult to know what information is being kept about you,” Freeman added. “They could deny and obfuscate, and we had no way of establishing definitively that they were or weren’t violating the law. That’s part of what’s so problematic about these databases.”

In response to the police department’s growing reliance on surveillance technology and massive databases of personal information, the New York City Council recently introduced a bill — the Public Oversight of Surveillance Technology Act — aimed at establishing reporting and oversight requirements for use of these tools. “Whether it is detaining young Black boys trick-or-treating on a Cobble Hill Street, or running arrests through databases full of young people of color’s fingerprints and mug shots, bias continues to be embedded in our policing no matter how high or low tech,” Council Member Brad Lander, who has long advocated for police oversight and is one of many co-sponsors of the bill, wrote in a statement to The Intercept.

“We can have little confidence that an agency that continues to cast Black and brown young people as perpetual suspects can be responsible for sensitive personal data such as DNA and facial recognition,” Lander added. “While the NYPD continues to prove itself to be resistant to even basic privacy and transparency measures, like the POST Act, it cannot be responsible for increasingly invasive investigative tools and databases of sensitive personal information.”

The fact that police illegally retained juvenile fingerprint records, with no public reckoning afterward, is consistent with law enforcement’s nontransparent use of other investigative tools, Alex Vitale, a sociology professor at Brooklyn College, told The Intercept.

“The history of policing is a history of secret databases that get misused and that are used to blacklist people. This is quite typical police behavior,” said Vitale, who has called for independent civilian monitoring of policing. “The city council is supposed to play that role but has rarely done so. The police department has worked assiduously to prevent that by failing to comply, failing to disclose things, and by exerting direct political pressure on city council members.”

Josmar Trujillo, a community activist organizing to end the NYPD gang database, said that the latest revelations are confirmation that police lie about their intelligence-gathering practices at “consequential and far-reaching levels” — and that official efforts to keep them accountable have fallen short.

“It’s no surprise that the NYPD considers itself above the law, but what is surprising is that our elected officials continue to do too little, too late, to actually prevent these abuses from happening in the first place,” Trujillo told The Intercept. “It seems like the city is always playing catch-up to the misconduct and lack of respect that comes from the entire department, from top to bottom.”