Expanded DNA Collection By The Federal Government

Leahy Concerned With Proposed DNA Database Rule Proposed Measure Could Compromise Civil Liberties, Judiciary Chairman Says

WASHINGTON (Friday, April 25, 2008) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) is urging policy makers on Capitol Hill to scrutinize a proposed Federal rule that will sanction the collection of DNA from all citizens arrested for Federal crimes.  Under the proposal, the personal, genetic information of arrested or detained individuals would be included in the nation’s leading DNA database known as CODIS.

In a statement Thursday, Leahy pointed to serious civil liberties violations that could arise if the proposed rule were enacted.  Much like finger printing now, the DNA collected would then be added to a national DNA indexing system for later access by other law enforcement agencies.  Of specific concern, the new rule would allow Federal law enforcement agencies to enter biological information into the growing CODIS database, even information from individuals ultimately found innocent and freed.  The policy could make it more difficult for innocent people to have their DNA removed from government databases.

“DNA testing, like any powerful tool, must be used carefully,” said Leahy.  “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.”

The notice of the proposed rule was published in the Federal Register on April 18. 

The text of Leahy’s statement follows.


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Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Expanded DNA Collection By The Federal Government

April 24, 2008


I was concerned to learn from the newspapers last week that the Federal government is getting ready to publish a rule sanctioning the collection of DNA samples from all citizens arrested for Federal crimes and from many people detained as illegal immigrants.  These samples may be even be kept permanently as part of the government’s DNA database even if a person is ultimately exonerated. 


I have long supported the analysis of DNA evidence to catch the guilty and exonerate the innocent.  In 2000, I introduced the Innocence Protection Act, which included the Kirk Bloodsworth Post-Conviction DNA Testing Grant program for defendants.  This program, where appropriate, gave defendants access to the post-conviction DNA testing necessary to prove their innocence in those cases where the system got it grievously wrong.  As a former prosecutor, I was acutely aware that DNA testing could help prevent both the conviction of innocent defendants, and the criminal justice nightmare of the real wrongdoer remaining undiscovered and possibly at large. 


In 2004, Congress passed the Innocence Protection Act as an important part of the Justice for All Act.  Congress recognized the need for important changes in criminal justice forensics despite resistance from the current administration.  The Justice for All Act authorized several other important programs to encourage the use of DNA evidence which I strongly supported, notably including the Debbie Smith DNA Backlog Grant program to eliminate the nationwide backlog of rape kits and other evidence awaiting DNA testing in crime labs around the country.  That important program has helped law enforcement to find the perpetrators of terrible crimes throughout the country and to ease the ordeal that crime victims go through.


But DNA testing, like any powerful tool – and particularly any powerful tool in the hands of the government – must be used carefully.  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. 


When Sen. Kyl proposed the legislation that formed the basis for this policy, I said that it raised serious privacy concerns.  Right now, 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.”  But it cannot be added to the Federal index unless and until the person has been formally charged with a crime.  This new policy allows DNA to be entered for those who have arrested, but not charged.


This change adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent.  It creates an incentive for pretextual arrests, and will likely have a disproportionate impact on minorities and the poor.  This policy may also make it harder for innocent people to have their DNA expunged from government databases.


Since I first spoke out against this provision in 2005, we have only seen more examples of abuses of power by this administration, including the Justice Department’s improper firing of prosecutors for political reasons and the FBI’s abuse of national security letter power given in the PATRIOT Act.  In this light, the added power to collect and keep DNA information from potentially innocent people gives even more cause for concern.


I will study the proposed rules and policy carefully and the Judiciary Committee will perform careful oversight of its implementation.  We must ensure that DNA evidence is used aggressively and efficiently to make us safer, but also that it is used in a careful and appropriate way that secures our rights and increases our confidence in our justice system. 

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