Blog of Rights

DNA for Pay: House Feeds Already-Bloated Genetic Databases

By Suzanne Ito, ACLU at 4:23pm

In this country, you're innocent until proven guilty. But apparently, the House of Representatives disagrees. Last week, it passed H.R. 4614, the Katie Sepich Enhanced DNA Collection Act of 2010. This bill would pay states to collect DNA samples of anyone arrested for certain crimes.

Arrested. Not convicted.

Now, we're certainly not against collecting DNA. We ought to be using DNA evidence to catch perpetrators of rape and murder — the types of crimes where DNA evidence is most often found. In fact, the analysis of DNA evidence has lead to 250 post-conviction exonerations. That's nothing to sneeze at.

And H.R. 4614 does narrow the collection of DNA to sex crimes, manslaughter, murder, assault and burglary. But it's not hard to see this slippery slope: Previously, DNA was collected only from felons convicted of homicide or sex offenses. Then the dragnet included anyone convicted of violent felonies. Then anyone convicted of any felony. Now, with H.R. 4614, it's arrestees for certain offenses. But proposals in California, New York, Florida and Colorado would collect samples from arrestees for even less serious crimes. You can see how this will eventually lead to a situation akin to what's already going on in the U.K., where litterbugs and murderers alike are subject to the same DNA collection. (All for naught, we might add: a 2006 government study (PDF) of the national DNA databank in the U.K. showed that including arrestees — and swamping its databases with people highly unlikely to ever perpetrate one of the few crimes where DNA is typically useful — has not resulted in a higher rate of crime detection there.)

According to CNET, FBI data shows that 14 million people are arrested by state and local law enforcement annually. Only a small fraction of that 14 million is actually charged and convicted. That's a lot of DNA of completely innocent people stored in a criminal database.

And swimming in the glut of DNA samples is the classic needle-in-the-haystack problem. According to the Justice Department's Inspector General's report issued early last year (PDF), this kind of excessive DNA collection leads to long delays in actual DNA analysis. As we pointed out after reviewing the report, the more DNA profiles law enforcement actually has to comb through, the more time-consuming actually catching the real perpetrator becomes.
And beyond all these problems with these policies from an effectiveness perspective, collecting the DNA of arrestees is also an unconstitutional invasion of privacy: housing a person’s DNA in a criminal database renders that person — and that person's blood relatives — automatic suspects for any future crime. All this without a warrant, probable cause, or individualized suspicion. That's hardly innocent until proven guilty.

In 2008, then-President Bush signed the Debbie Smith Reauthorization Act of 2008, a bill designed to help eliminate the nationwide backlog of rape evidence kits and bolster DNA testing of criminals and crime scene evidence. But on its way to the president's desk, Rep. Adam Schiff of California offered an amendment that would have done exactly what H.R. 4614 now proposes: give cash incentives to states to collect DNA from anyone arrested for a violent or sex crime. As we pointed out back then, the Schiff amendment, ironically enough, would have thwarted the underlying bill by adding even more DNA profiles, adding to the constantly growing backlog of unprocessed DNA evidence from rape crime scenes.

Fortunately, Congress noticed just how absurd it would be to pass a bill that funds backlog reduction and feeds the backlog at the same time. The bill passed without the Schiff amendment.

So keep your eye on this legislation as it moves to the Senate. Given the dire financial straits many states are in, the cash incentive from the federal government will be hard to pass up. Tell you senator you oppose any legislation that turns innocent people into suspects, and makes it harder for law enforcement to catch the real criminals.

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