Re: DNA Legislation - HR 2810  

Dear Representative Kennedy:  

We are writing to you to apprise you of the ACLU's concerns about the "Violent Offender DNA Identification Act of 1999" that you recently introduced. The bill is designed to "eliminate convicted offender DNA samples" and "provide for their entry into the Combined DNA Indexing System (CODIS)." We appreciate your solicitation of our views. However, we believe that Congress is acting prematurely in passing additional DNA legislation at this point in time. We understand that the National Commission on the Future of DNA evidence, established by the National Institute for Justice, will shortly be concluding its work. The Commission's members, appointed by Attorney General Reno, represent a broad array of the leading experts on forensic DNA testing. Its reports will concern a number of key questions addressed by the legislation including the issue of testing protocols. We urge the Congress to wait until the Commission has finished its work before taking action in order to take advantage of the expertise of this Commission.  

From the outset we must tell you that the ACLU is deeply concerned about the prospect that the government retain permanent DNA information on people in the United States. We believe that the government should not maintain such a database. We understand that 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 their collection extend well beyond the millions of people whose samples are currently on file. Moreover, there is no requirement that the DNA sample from which genetic information is taken be destroyed. This allows for the future possibility that all of the information be used in other ways that we cannot even anticipate.  

There is a long and unfortunate history of despicable behavior by governments toward people whose genetic composition has been considered "abnormal" under the prevailing societal standards of the day. While the FBI states that this information will be used for limited forensic purposes, the history in our country is that information compiled for one purpose will be used for another. For example, Social Security numbers were initially intended only for use as an aid tracking social security payments but are now a universal identifier. Another example, census records created for general statistical purposes were used to round up innocent Japanese Americans and place them in internment camps during World War II.  

Given the enormous implications of expanding CODIS we must oppose this legislation. However, your bill is much more protective of privacy than the Senate counterpart, S. 903. As you know, a slightly revised version of S. 903 was attached to S.254, the Senate juvenile justice bill. This bill is now at the conference stage. The ACLU will urge the conferees to reject S. 903. We believe that an issue of this importance should be considered only after careful hearings and opportunity for public input. S. 903 was attached as an amendment bypassing the committee process completely. The issue was never even discussed on the floor of the Senate. However, if a determination is made to include a DNA bill within the conference report, we will urge conferees to support your DNA bill in lieu of the Senate's version.  

There are a number of important changes you have made from the Senate version that we support.  

• Your bill has a smaller number of "qualifying offenses" -- those crimes for which DNA samples will be collected. The Senate bill defines a qualifying offense as any crime of violence including misdemeanor offenses whereas your version is limited to serious violent felonies and burglaries. In our opinion, because CODIS will be a permanent government repository of genetic material and records, only the most serious offenses should be included within it.
  
• Your bill eliminates a "catch-all" provision that allows the Director of the FBI to expand the number of "qualifying offenses" at his or her discretion. See S. 903 Sec. 2 (d)(B)(iii). In our view, the FBI director should not have the discretion to determine which offenses should be included. Congress should retain oversight of the FBI and CODIS - especially in light of the numerous concerns about some FBI practices.
  
• Your bill provides for "automatic" removal of the DNA record if a conviction is reversed or vitiated. The Senate version does not make the removal requirement automatic. An automatic removal provision is important to ensure that innocent people's DNA samples and records are not part of the permanent database.
  
• Your bill does not include samples from juveniles adjudicated delinquent, the Senate bill does. Juvenile adjudications are not criminal convictions - they should not be included within a permanent database of criminal convictions.
  
• Your bill only allows samples to be collected from persons in the District of Columbia who have been convicted of a qualifying offense. The Senate version allows the possibility of persons from D.C. who have been arrested, but not been convicted of any crime, to have samples taken from them. Again, we cannot stress enough that samples from innocent persons should not be included in CODIS.
  
• Your bill does not allow DNA samples or records to be used for non-forensic purposes, which the Senate bill does. See S. 903 (b)(2)(D). As mentioned above, one of our concerns with databases is that they may eventually be used for purposes other than what was originally intended. Data from CODIS should not be used for non-forensic purposes.

We support these important changes. However, there are other areas where your bill could be improved even more.

• While we would prefer that any DNA records included in the federal CODIS system be for convictions for qualifying offenses, we strongly urge you to prohibit including DNA records of persons who have not been convicted of any crime. Unfortunately, your bill would permit the inclusion of records from states that seize DNA samples from their citizens who have not even been convicted of crimes -- people who are innocent under our system of government. No innocent person's DNA should be included in the federal CODIS system, nor should the DNA of people convicted of misdemeanors or less than serious violent felony offenses. 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 has no standards whatsoever. We recommend that a sentence be added to the end of Section 2 (b)(3) requiring that only records of persons convicted of qualified offenses be added to the CODIS database. This would still allow federal assistance in DNA testing for a broad array of crimes, but only the DNA of people actually found guilty of serious crimes would become part of the permanent national database.
  
• Criminal defendants should have access to CODIS to establish their innocence. The current language only requires that defendants be allowed access "in connection with the case in which the defendant is charged." You could easily change this phrase to "in any criminal case in which a person can establish he has a significant interest." Broadening this language would give a person access to DNA records in a case where that person is not the defendant, but needs those records to help him establish his innocence. For example, this situation could arise where Mr. Jones was wrongfully convicted of a crime and had always stated that Mr. Smith had committed the crime. In order to exonerate himself, Mr. Jones needs access to Mr. Smith's DNA to establish his innocence. In this case, Mr. Jones is not a defendant in a case involving Mr. Smith so would not necessarily have access to his DNA. DNA can be a powerful tool to convict a person, but also a powerful tool to exonerate. The government should make the information broadly available to help persons who have been wrongfully convicted to exonerate themselves.
  
• There should be a procedure established for destroying the physical sample used in the DNA testing. It is one thing for the government to permanently store a genetic fingerprint, it is altogether different for the government to permanently retain a portion of a person's body which could be used for future genetic testing.
  
• Lastly, Congress must require that states make DNA testing and records available to persons convicted of crimes who did not have access to DNA evidence at the time of their trial. If we are serious about protecting the innocent as well as punishing the guilty, it is only fair that criminal defendants be given the opportunity to use DNA technology that was not previously available. We understand that the National Commission on the Future of DNA evidence will shortly be proposing a uniform statute concerning the post-conviction use of DNA testing. We would urge that the principles in that proposal be incorporated as a requirement for continuing participation in the CODIS program. 

I hope you will consider making these important changes. Please urge your colleagues to consider delaying action on this issue until they have received the report of the National Commission. 

Once again, thank you for seeking our input into this process. We look forward to working with you in the future on this and other matters and can be reached at the numbers below.  

Sincerely,  

cc: House Judiciary Members