Despite Objections, DNA Sampling Expands

By: - March 28, 2008 12:00 am


When Democratic members of Maryland ‘s House of Delegates gathered last week to discuss legislative proposals, black lawmakers soon walked out of the meeting in frustration.

Their concern: That white lawmakers were overlooking their objections to a bill pushed by Gov. Martin O’Malley (D) that would require police to take DNA samples from those arrested for – but not necessarily convicted of – violent crimes.

O’Malley, who is white, made the bill a priority because he said it would provide law enforcers with a repository of highly reliable evidence that could help them crack unsolved cases and deter future crimes. DNA from arrestees – usually in saliva samples collected with cotton swabs – could be compared to samples found at crime scenes across the state and, eventually, across the country.

But members of the Black Caucus, backed by the Baltimore-based National Association for the Advancement of Colored People and the American Civil Liberties Union of Maryland , said the proposal would make a suspect out of anyone arrested for a serious crime, even if that person later is found innocent. They said the plan would unfairly target African-Americans, who are arrested at a higher rate than whites in Maryland .

“It’s high-tech profiling,” said Maryland state Sen. Lisa A. Gladden (D), who is black.

The debate in Maryland , which this week ended in a compromise between O’Malley and black legislators, underscores the conflict between tough law enforcement and civil liberties, as states and the federal government greatly expand the pool of Americans from whom DNA samples can be taken.

Congress and 12 states have authorized police to take DNA samples from arrestees, not just convicted felons, while at least 22 states have considered similar plans in 2008 alone – including Maryland . O’Malley is expected to sign an amended bill that allows for the destruction of DNA samples if suspects are arrested but not convicted, among other concessions demanded by the Black Caucus.

In South Dakota , Gov. Mike Rounds (R) this month signed a bill making the state the 12 th to require the collection of DNA samples from arrestees. The others are Alaska , Arizona , California , Kansas , Louisiana , Minnesota , New Mexico , North Dakota , Tennessee , Texas and Virginia . Similar legislation has passed one legislative chamber in Michigan and both in Georgia .

In Washington, Gov. Chris Gregoire (D) this month signed a bill that will require DNA samples to be taken from all registered sex offenders in the state – not only the felons – after a 12-year-old girl was abducted and killed last summer. A registered sex offender has been charged in connection with her death. The state does not collect DNA samples from other arrestees.

Other states, including Florida , Indiana , Missouri , New York and Ohio , this year have considered or are considering legislation that would require the collection of DNA from those convicted of misdemeanors and other lesser crimes. Juveniles and illegal immigrants also are being targeted for DNA samples under legislation in a handful of states, according to a state-by-state listing at

At the federal level, the Department of Justice is finalizing rules, approved by Congress in 2005, that soon will require anyone arrested by federal authorities to provide a DNA sample, which will be converted into an electronic “profile” and stored in a vast computer database at the FBI crime laboratory in Quantico , Va.

The FBI database already contains at least 104,000 arrestee profiles that have been uploaded from four participating states – California , Louisiana , New Mexico and Virginia – according to Ann Todd, a special agent at the laboratory. Overall, the FBI database has more than 5.8 million DNA profiles, including those of convicted felons, Todd said.

But even as DNA sampling expands, it is being attacked on a broad range of fronts.

While supporters say arrestee DNA sampling is no different than collecting fingerprints from criminal suspects, opponents say it is an unconstitutional invasion of privacy, because DNA contains much more sensitive genetic information than fingerprints.

Because arrestee sampling is relatively new – Virginia became the first jurisdiction to approve it in 2003 – courts have not coalesced around whether it is constitutional. The Virginia Supreme Court upheld the practice last September, but a state appeals court in Minnesota struck it down in that state in 2006. Federal courts have yet to weigh in.

Another criticism aired by opponents of wider DNA sampling is that crime labs, which already face backlogs in many states, are poorly regulated and could make catastrophic errors as their workloads increase.

“In Maryland , the lab that runs your cholesterol test is subject to more oversight than the one that does the DNA sample that can get you onto death row or in prison for life,” said Cindy Boersma, legislative director of the ACLU of Maryland.

Bill Marbaker, assistant director of the Missouri State Highway Patrol Crime Lab, said expanded DNA sampling is a valuable law-enforcement tool, but he pointed to another concern – its costs.

Missouri lawmakers are considering a proposal to require DNA samples from arrestees, but Marbaker said that could require an additional $8 million a year in funding – at least four times the current program’s budget. He noted that many states are raising court fees to help pay for expanded sampling of arrestees and others.

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