Kaye Beach

DNA Collection Upon Arrest, HB 2751, Passes Okla. House 72 to 23

In Uncategorized on March 9, 2010 at 11:56 am

DNA Collection Upon Arrest, HB 2751, Passes Okla. House 72 to

Today the Oklahoma House of Representatives considered HB 2751, a bill that would further expand DNA collection for law enforcement purposes

The bill authored by Rep Denny,  and inspired a good deal of debate both pro and con.

Rep. Denny is on a heartfelt crusade to save victims or their families from the torture of not knowing who committed the crime or whether or not that person is on the loose and still harming others.  She believes that by entering more DNA into state and federal databases that more crimes, both past and future, will be solved.

This bill follows on the heels of SB 1102 passed last session that adds certain misdemeanors to the list of crimes for which DNA can be collected.

Collecting more and more samples may actually be preventing victims from gaining justice and allowing perpetrators to commit more crimes. This article is an eye opening challenge to the assumption that more (DNA samples entered into criminal databases) is better;

The DNA Debacle

Arguments were made against the measure by several House members including Rep Derby, Rep. McPeak, Rep. Keisel, Rep. Buck and Rep. Ritze.

Rep Buck made an excellent point by asking why not wait until preliminary hearing to collect the sample?  This is when the judge rules on whether or not “probable cause” has been met.  It was noted that relatively few cases fail to meet the criteria for probable cause and therefore little would be lost by waiting until after this hearing to collect the sample.  Waiting until after the preliminary hearing would also have the benefit of reducing possible misuse or abuse of the proposed law.

When asked by Rep Derby if the individuals arrested were guilty or innocent, Denny replied that this was “unknown”. 

Derby corrected her by stating that we are, by law to be considered  “innocent until proven guilty”  In her closing remarks advocating for passage of HB 2751, Rep Denny declared that the bill is directed at the  “bottom feeders” and “creeps” that have a propensity to repeatedly offend.

Rep. Denny refuses to acknowledge that it is suspects that would be forced to submit their DNA if her bill should pass. This distinction, known as the “Presumption of Innocence” is fundamental to our system of law which is supposed to put the burden of proof on the accuser.

Another point raised by several House members was that retrieval or expungement of a suspects DNA data that is later determined to be innocent is extremely difficult, if not impossible to do.

Rep.Kiesel made note in an earlier committee hearing on the bill that the burden of attempting to remove ones DNA profile is firmly placed on the shoulders of the acquitted, financially and otherwise.

  Rep Ritze, a physician, asked Rep Denny if she was aware that a UCO forensics expert stated that removing this information from law enforcement databases is “virtually impossible?”  Rep Denny replied that she had it on good authority that the truth was otherwise.

One aspect of Rep. Denny’s argument that was not challenged but could have been is the idea that collecting ones DNA offers some benefit in exonerating the innocent.  Denny always adds earnestly that she would want her genetic material taken and analyzed so that she could be proven innocent. That is a good point but it doesn’t seem that the system works quite that way;

Supreme Court Rejects DNA Access to Prove Innocence: In a 5-4 decision, the Supreme Court rejected the constitutional right of a convicted individual to access his DNA to prove innocence.

Only four states — Alabama, Alaska, Massachusetts and Oklahoma — do not have laws in place specifically dealing with postconviction DNA testing, and Alabama recently enacted one limited to death row inmates that will become effective soon. http://www.nytimes.com/2009/06/19/us/19scotus.html

From listening closely to Rep. Denny speak on this issue several times, I have developed the opinion that she is not going to let the facts or the law interfere with her mission. 

The realization that we have lawmakers who disregard logic and law in the course of their duties is frankly more distressing than the bill.

A recent congressional report on the issue of DNA collection and The Fourth Amendment states;

Despite relying on different legal standards, courts have generally upheld laws authorizing law enforcement’s compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment of the U.S. Constitution. However, several developments might call this judicial consensus into question.

The developments are;

  1. Expansion of DNA collection beyond persons convicted to include those arrested or detained.

The report also states;

In cases upholding DNA collection laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction punishment under Fourth Amendment precedent. For people whom the government has arrested but not yet convicted, it appears that this reduction in privacy rights either does not apply or applies to a lesser extent.

  1. Emerging scientific research suggests that the type of DNA used in analysis might be more personally revealing than was assumed.

Rep Denny mistakenly asserts that one’s gender cannot even be surmised from the analyzed portion of collected DNA. 

The appeal used by Denny is that we have everything to gain and nothing to lose by collecting DNA upon arrest.  If DNA were the infallible tool it is often presented to be, maybe so, but the art has been oversold to the public in a way that makes it practically indisputable by those convicted on DNA evidence. There are many factors that can cause inaccurate results but you won’t hear often the fact that DNA evidence is sometimes less than perfect.

This amicus brief gives an overview of some of the problems.

DNA profiles are derived from what we consider now to be “unk DNA”.  This is portions of DNA that, at present, we are unable to derive much genetic information from.  The truth is that DNA analysis is a rapidly evolving field of study and what we can ascertain at this moment in time from any portion of our DNA is quite irrelevant to what will be able to be determined from it in the future.

The 2009 Congressional Report on Compulsory DNA Collection report advises that;

. . statutory protections, such as the existing federal provision requiring expungement of DNA evidence after an arrestee’s acquittal, might safeguard the government against a finding that DNA collection or analysis constitutes an unreasonable search or seizure under the Fourth Amendment. access the full report here

DNA is not infallible;

Such coincidental matches are more than a theoretical possibility, as Chicago police can attest. In 2004, detectives investigating a string of robberies on the city’s North Side found some skin cells that the culprit had left behind at one crime scene, which contained six DNA markers. When they ran this profile against Illinois’s offender database, they found it matched a woman named Diane Myers. There was just one problem: when the burglaries in question were committed, Myers was already in jail, serving time on drug charges.

Indeed, the little information that has come to light about the actual rate of coincidental matches in offender databases suggests the chances of hitting on the wrong person may be even higher than the Database Match Probability suggests.

In 2005… an Arizona state employee named Kathryn Troyer had run a series of tests on the state’s DNA database, which at the time included 65,000 profiles, and found multiple people with nine or more identical markers. If you believe the FBI’s rarity statistics, this was all but impossible—the chances of any two people in the general population sharing that many markers was supposed to be about one in 750 million, while the Database Match Probability for a nine-marker match in a system the size of Arizona’s is roughly one in 11,000. 

http://www.washingtonmonthly.com/features/2010/1003.bobelian.html

There are many important questions about the legalities, ethics and even accuracy that should be settled before implementing yet another expansion to compulsory DNA collection. Very few of the more disturbing ones were not touched upon in the discussions about HB 2751. I will be sending information I find on to the Senate members with hope that the next hearing will tackle some of the biggest ones.

 

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  3. […] Envisioning the future of the CODIS DNA database. Do you like what you see America? In Biometrics, HB 2751, Issues, Surveillance on March 17, 2010 at 10:37 pm DNA Collection Upon Arrest, HB 2751, Passes Okla. House 72 to 23 […]

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