Senate Minority Whip Kyl Monday took to task Senate Judiciary Chairman Patrick Leahy over concerns Leahy raised last week regarding a Justice Department proposal that would require the collection of DNA from all citizens arrested for federal crimes.
“The benefits to the criminal justice system from DNA sampling far outweigh any risks that it may be misused,” Kyl told CongressDaily in an e-mail.
Details of the plan were published this month in the Federal Register and Leahy urged lawmakers Friday to scrutinize potential civil liberties violations that could arise if the regulations are finalized.
Much like fingerprinting now, genetic information would be added to a national database for later access by various law enforcement agencies, he warned. The policy could make it harder for those who are ultimately found innocent to have their DNA scrubbed from the system, Leahy said.
Currently, a person’s DNA can be collected immediately upon arrest, and it can be used immediately to search the DNA indexes for a possible “hit,” Leahy said. But the sample cannot be added to the federal index unless and until the person has been formally charged with a crime. “DNA testing, like any powerful tool, must be used carefully,” Leahy said. “If abused, it can infringe on the privacy and civil liberties of Americans while doing little to prevent crime. I am concerned that the policy just announced may do exactly that.”
For years, law enforcement agencies have taken fingerprints at arrest, and do not allow subsequent expungement, Kyl said. The Arizona Republican has offered legislation that formed the basis for the proposed policy.
“The regulations for DNA samples propose it be taken at the same time; but, unlike fingerprints, DNA samples could be expunged if requested by the arrestee. With proper controls, we can ensure that DNA sampling poses less risk to privacy than does fingerprinting,” Kyl said.
The DNA sites that are analyzed for the database were chosen because they do not reveal medically sensitive information, Kyl said, adding that the laboratory in charge is not even organized to collect that type of material.
Furthermore, Congress passed language he offered in 2004 that would subject any lab employee who misuses a DNA sample to jail time and a $250,000 fine. Kyl said it is “extremely unlikely” that DNA samples will be misused.
On the other hand, he said the DNA collection could have prevented countless serious crimes.
Privacy advocates have largely sided with Leahy. The Center for Democracy and Technology’s Gregory Nojeim said the proposal would create “a troubling incentive” for law enforcement personnel to make an arrest to collect DNA of a suspect, check it for a DNA match, and store it in a database. The DNA of an unprecedented number of people — including protesters and others who might be arrested but not convicted or charged — would be stored in what most regard as a criminal information database.
Jesselyn McCurdy, legislative counsel for the American Civil Liberties Union, said she was worried about the proposal and planned to submit comments by the mid-May deadline. “This is pretty much a done deal,” she said, noting that her group’s focus has turned to ensuring that the Justice Department finds a way to implement the regulations with citizens’ rights in mind.
This article appears in the May 3, 2008, edition of NJ Daily.