ACLU Letter to the House Judiciary Committee Expressing Concerns about HR 3214, the Advancing Justice through DNA Technology Act of 2003
Chairman Jim Sensenbrenner, Jr.
Committee on the Judiciary
Ranking Member John Conyers, Jr.
Committee on the Judiciary
OCTOBER 7, 2003 HOUSE JUDICIARY COMMITTEE MARKUP OF THE ADVANCING JUSTICE THROUGH DNA TECHNOLOGY ACT OF 2003
Dear Chairman Sensenbrenner and Ranking Member Conyers:
On behalf of the American Civil Liberties Union (ACLU), we write to express our views on H.R. 3214, the Advancing Justice Through DNA Technology Act of 2003. Title III, the Innocence Protection Act, is an important step forward in the effort to reduce the risk that innocent people will be sentenced to death and executed. On the other hand, the ACLU is concerned that Title I and II of the bill would expand the Combined DNA Index System (CODIS) and further undermines principles of privacy and due process.
The Innocence Protection Act Takes A Positive Step Forward By Providing Access To Post-Conviction DNA Testing, Improved Legal Representation And Increased Compensation For Wrongful Convictions In Federal Cases.
Congress has taken the first step in Title III to improve the administration of justice in this country by creating a process by which DNA testing is available to defendants post-conviction in appropriate cases. Access to DNA testing could save the life of a person on death row and at the very least in non-capital cases, assist law enforcement officials to find the actually perpetrator of a crime. In an effort to provide competent legal representation for indigent defendants this bill would provide grants to States to improve legal representation of death penalty defendants by training criminal defense attorneys and prosecutors. In an exceptional step forward, this legislation would increase the maximum amount of damages that the U.S. Federal Claims Court may award in wrongful conviction cases to $50,000 per year in non-capital case and $100,000 a year in capital cases.
The ACLU applauds the progress that is made in the Innocence Protection Act to address the inadequacies in the capital punishment system in this country. Death penalty cases often present very complex legal issues and require access to a great deal of resources in order to adequately defend an accused person. In addition death, penalty defendants should receive every procedural safeguard to assure the fairness and reliability of the process. The flaws in our nation's capital punishment system are clear: 111 innocent people on death row have been exonerated in the past 30 years.
Extending The Statute Of Limitations Indefinitely While Memories Fade And Witnesses Disappear
Section 104 of this bill would toll the statute of limitations indefinitely so that it would not begin to run until a person is implicated by DNA testing except in cases of sexual abuse. It would do this in any case involving DNA profiles that are not linked to an identified person. Once a person is implicated in a crime by their DNA, the statute of limitations would run for five years in non-capital crimes and to run indefinitely in capital offenses. This provision undercuts Congress' legislative authority to establish a statute of limitations for each federal crime and replaces that authority with the discretion of the law enforcement officials who under this section of the bill would have control over when the statute of limitations begins to run whether twenty months or twenty years after a crime is committed. Also, this would jeopardize a person's ability to prepare a defense if they were not charged with a crime in a reasonable amount time after the offense takes place. For example, if someone is charged twenty years after a crime was committed they are at risk of not having access to valuable evidence that could exonerate them nor to witnesses that could be important to their defense. Ironically, this could result in some innocent people being convicted of crimes they did not commit.
The Government Would Have Access To Extremely Personal Genetic Information Through DNA Profiles Of Innocent People.
While Title I and II of the bill authorize $755 million over five years to reduce the DNA backlog that exists in crime labs across the country, the ACLU is deeply concerned that these titles also expand the collection of DNA profiles in CODIS to include all persons whose DNA profiles have been collected in accordance with applicable state law, persons convicted of any federal felony and persons convicted of qualifying military offenses. Section 103 of this bill would expand the types of DNA profiles that are incorporated in CODIS. DNA profiles included in the database under this bill would be those collected in accordance with state law and profiles of all persons convicted of a Federal felony, any Federal sexual abuse crime, any crime of violence (as defined by Title 18 of the United States Code) and any attempt or conspiracy to commit any of the above Federal offenses. The government should not retain permanent DNA information under any circumstances nor maintain such a database like CODIS. Nevertheless, it is reassuring that this legislation requires that DNA samples that are voluntarily submitted to eliminate a person as a suspect in a crime will not be retained in CODIS.
The CODIS system only contains a limited amount of genetic information compiled for identification purposes. However, the amount of personal and private data contained in a DNA specimen provides insights into the most personal family relationships and the most intimate workings of the human body, including the likelihood of the occurrence of over 4,000 types of genetic conditions and diseases. Because genetic information pertains not only to the individual whose DNA is sampled, but to everyone who shares in that person's blood line, potential threats to genetic privacy posed by the collection of genetic information extends well beyond the millions of people whose profiles are currently on file.
Although the ACLU does not support the government maintaining DNA indexing databases like CODIS, if these databases are maintained they should only include DNA profiles of persons who have been convicted of serious violent felonies. Presently, 42 U.S.C. Sec. 14135a permits the collection of DNA samples from federal prisoners, probationers and parolees who where convicted of ""qualifying federal offenses."" This section of the statute defines qualifying federal offenses as murder and other offenses relating to homicide, offenses relating to sexual abuse, offenses relating to peonage and slavery, kidnapping, robbery or burglary, federal crimes of terrorism, any crime of violence as well as any attempt or conspiracy to commit the above crimes. H.R. 3214 would expand the definition of ""qualifying federal offenses"" to include any felony, any offense under the Uniform Code of Military Justice for which a person can be confined for more than a year, and any other military offense that is comparable to a qualifying Federal offense. This change in the law would permit DNA profiles to be collected for persons convicted of non-violent federal crimes such as embezzlement and computer hacking.
In addition, Title I of this legislation would provide for the inclusion of any DNA profiles collected under applicable state law, which would incorporate in CODIS any DNA, collected regardless of the purpose, as long as the collection of the sample is valid under state law. Among other things, this provision would permit the inclusion of records from states that seize DNA profiles from their residents who have not even been convicted of crimes -- people who are innocent under our system of government. States such as California and Louisiana already have statutes that would allow for the collection of DNA profiles of person arrested, but not necessarily convicted of crimes. This policy undermines the presumption of innocence by allowing for a person's DNA to be included in CODIS, with that of convicted felonies, before he is ever tried, convicted and some cases charged with a crime. No innocent person's DNA should be included in the federal CODIS system, nor should the DNA of people convicted of misdemeanors or any crime that is not a serious violent felony. This broad inclusion of records will change the character of CODIS from a system that is somewhat narrowly tailored for forensic purposes to a system that gathers personal information about innocent people just in case they someday commit a crime. Any DNA records included in the federal CODIS systems should pertain to people who have been convicted of serious violent crimes.
Overall, the ACLU commends the numerous co-sponsors of H.R. 3214 for coming together to introduce the many positive components in this bill. However, we would like to work with you to improve the aspects of the bill that have significant civil liberties implications. We look forward to working with you in the future on this and other matters.
<?xml:namespace prefix = w />
Sincerely,
Laura W. Murphy
Director
Jesselyn McCurdy
Legislative Counsel
Diann Rust-Tierney
Director, ACLU Capital Punishment Project
cc: House Judiciary Committee Members