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A growing number of states are considering measures that would allow police to take DNA samples from anyone arrested on suspicion of committing a felony. The push for expanding DNA samples to such an extent has triggered a debate between those who charge governmental invasion of privacy and those who assert collection of DNA evidence is a necessary tool in solving crimes. About 40 states already require prison inmates and convicted felons to give DNA samples. Two states, Virginia and Louisiana, have already expanded sampling to include those arrested on suspicion of committing a felony, and more may follow their lead. California and Illinois are the latest battlegrounds for the issue. In Illinois, the recent approval of House Bill 4825 would require a tissue or saliva sample for “DNA fingerprinting” to be taken upon the booking of every person arrested on suspicion of committing a felony. The bill passed the House last month and is now before the Illinois Senate rules committee. In California, a ballot initiative that amassed 373,816 signatures will put the question of taking DNA upon arrest on the ballot this November. That effort is being funded by a wealthy businessman, Bruce Harrington, whose brother was murdered in 1980, along with his wife of three months, who was raped and killed. Investigators linked DNA from the Harrington crime scene to a string of other unsolved murders by a serial killer police have dubbed the “original night stalker.” Taking DNA from people not yet convicted raises a number of constitutional issues, according to Professor David Kaye, of Arizona State University School of Law, who testified before the former National Commission on the Future of DNA Evidence that was convened by the U.S. Department of Justice. While taking DNA samples can be as noninvasive as a simple skin scrape, it is still a “search” protected by the parameters of the Fourth Amendment, Kaye said. The question then becomes whether it is a reasonable search. Law enforcement maintains that it is reasonable, and that the need to find and prosecute the right offenders trumps the privacy concerns of individuals. “Your reasonable expectation of privacy diminishes the moment you are arrested,” asserted John Gorman, of the Cook County state attorney’s office in Illinois. DNA is no more invasive than a fingerprint-but much more effective, he noted. Often only a partial fingerprint, if anything, is recovered from crime scenes, whereas a decent DNA sample substantially narrows the odds of finding the perpetrator. Defense lawyers raise privacy concerns, but also add that there are practical reasons against expanding DNA sampling to those arrested. In Illinois, there is a backlog in the state’s forensics division of 1,000 samples of DNA taken from crime scenes and 63,000 samples taken from convicts, according to Kathryn Saltmarsh, the legislative liaison for the Illinois Office of the State Appellate Defender. “We’re all for solving cold cases,” Saltmarsh said. “But part of that is solving real crimes and real cases. It is a far more efficient use of resources to analyze those samples already taken.” The defense community in Illinois was successful in getting some provisions added to the Illinois bill that were modeled on the Virginia statute, according to Saltmarsh. Virginia has limits The Virginia statute limits the taking of DNA samples to violent felonies, only after a judge or grand jury has determined that probable cause exists, and mandates the destruction of the sample if the suspect is later acquitted. The defense bar in California also has practical concerns. Many felony arrests involve drug users entitled to having their records expunged upon the completion of a treatment program. But having a permanent record in the police DNA database would arguably counteract that. “What you’ll have is a huge database of minority individuals,” said Jeffrey E. Thoma of the Mendocino County, Calif., public defender’s office, and a former member of the National Commission on the Future of DNA Evidence. The ballot initiative sets a dangerous precedent that alters the fundamental reason for DNA databases, Thoma asserted. “These people aren’t guilty of anything,” Thoma noted. Only about 50% of the felony arrests in California result in a conviction, he said. It is worth asking whether DNA profiling should be limited to arrestees, Kaye said. “Although it sounds 1984-ish, there are reasons to favor a system that includes everyone’s DNA types,” Kaye said. “Of course, such a system would require very strict privacy protections.” McAree’s e-mail address is [email protected].

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