Thread: Immigrants' advocates slam plan to get DNA

Immigrants' advocates slam plan to get DNA
But backers say federal proposal would cut crime
By SUSAN CARROLL and STEWART POWELL Copyright 2008 Houston Chronicle
Oct. 25, 2008, 11:11PM
WASHINGTON — The Bush administration wants to implement a controversial plan to collect DNA samples from federal detainees starting Dec. 31, amid an outcry by immigrant advocacy organizations and uncertainties about federal funding.

Last spring, the U.S. Department of Justice published a proposed regulation that set the December deadline to start collecting DNA from an estimated 1.2 million people arrested each year by federal agents, including hundreds of thousands of illegal immigrants detained along the nation's borders. The DNA samples would then be added to the FBI's national DNA database, which contains the genetic codes of millions of convicted felons.

Supporters say the increase in federal DNA collection would help law enforcement more quickly and efficiently solve crimes, particularly those involving illegal immigrants. But dozens of organizations have questioned the legality and fairness of collecting and storing people's unique genetic makeup when they are merely under suspicion of a crime or immigration violation.

"It's such an incredible shift to go from collecting DNA from people in the criminal system to imposing it on people who have no connection to a criminal offense — immigrants in the civil immigration system," said Joan Friedland, the immigration policy director with the National Immigration Law Center. "It's a remarkable expansion."


Could library order swab?
The change also would impact U.S. citizens arrested by federal agencies but not necessarily convicted of crimes. Some critics questioned whether all federal government agencies with arrest powers — such as the Library of Congress police — should also have jurisdiction to demand a DNA sample.

Privacy watchdogs raised concerns about the steps required to have a sample removed from the database, even if a case does not result in a conviction.

Immigrant advocates said the regulation does not clearly address the implications for people detained at the borders who have legitimate claims to asylum or later are granted legal resident status.

Congress authorized the collection in an amendment to the 2005 reauthorization of the Violence Against Women Act, which was signed into law in January 2006. Twelve states have similar laws allowing DNA collection by state and local law enforcement before a conviction, including Arizona, California and Texas. Those state laws do not cover people arrested on federal charges.

Ryan Patmintra, a spokesman for U.S. Sen. Jon Kyl, R-Ariz., who sponsored the amendment, said the Justice Department has identified the expansion as a "high priority" and reassured Kyl's staff that the rule will be finalized and implemented on schedule.

Kyl called the regulations "long overdue" when they were issued this spring, noting that they could have helped detectives in Chandler, Ariz., catch Santana Batiz Aceves, an illegal immigrant dubbed the "Chandler rapist."

Aceves was deported in 1999 and 2003 from California. He was arrested in January after Chandler police allegedly linked him to a string of sexual assaults and obtained a warrant for his DNA. If the regulations were in place years ago, police could have identified Aceves after the first alleged assault in 2006 and prevented at least three assaults, Kyl said in a statement.

As the Dec. 31 deadline approaches, the final rule on the DNA collection has yet to be published in the Federal Register, and funding for the expansion is in question.

Without additional resources, critics warned the dramatic increase in the collection of DNA could potentially swamp the FBI's DNA laboratory.

The FBI lab had a backlog of about 135,100 unprocessed DNA samples from convicted federal criminals as of Sept. 30. The agency also had roughly 127,000 samples that had been processed but not yet entered into a national DNA databank, said Ann Todd, an FBI lab spokeswoman.

Todd said if the lab's annual intake grew by 1.2 million samples, it would amount to a twelve-fold increase in workload.

Justice Department spokesman Erik Ablin said the DOJ submitted a final rule to the Office of Management and Budget in September. Ablin said he could not respond to questions about when a final rule may be published, or whether the Dec. 31 deadline will be postponed.


'Ripe' for legal challenge
So far, there is no funding for the additional DNA collection. With a price tag of $37.50 per person for collection and processing, and an estimated increase of 1.2 million samples annually, the potential cost of the expansion would be about $45 million.

The proposed rule also gives agencies the discretion not to collect the samples because of "resource limitations," which has led to speculation that agencies, including the Department of Homeland Security, will seek to be excluded from the expansion.

DHS officials declined to comment on whether they're preparing for the implementation of the rule, referring questions to the DOJ. Ablin would not comment on whether DHS has asked for an exemption.

Tania Simoncelli, an adviser with the American Civil Liberties Union's technology and liberty program, said the rule — if finalized as it was written in the spring — would be "ripe" for a legal challenge and could potentially compromise the integrity of the DNA databank, particularly if federal agents collecting the DNA do not have proper training.

"There are serious practical problems, and serious constitutional issues involved," Simoncelli said. "It's not clear at all that the expansion of these databases will improve law enforcement's ability to get the bad guys. I think it could actually undermine the entire system by opening it to errors and abuses."

Ablin said the DNA collection would be subject to the same privacy laws applied to current DNA sampling, meaning it would not be used to identify genetic traits or medical conditions.

http://www.chron.com/disp/story.mpl/met ... 78552.html

Could library order swab?
The change also would impact U.S. citizens arrested by federal agencies but not necessarily convicted of crimes. Some critics questioned whether all federal government agencies with arrest powers — such as the Library of Congress police — should also have jurisdiction to demand a DNA sample.

Taking the DNA before conviction is the main problem.