February 6, 2007
In January 2006, the U.S. Congress voted to renew the Violence Against Women Act with overwhelming support. A year later, the Justice Department is in the process of finalizing rules that will guide the implementation of a massive expansion in the DNA-collecting capabilities of the federal government. The latter is a previously overlooked result of the former: In renewing the Violence Against Women's Act, Congress also voted into law a set of changes to current rules regarding federal access to suspects' DNA. The lack of press coverage of the vote in 2006 calls into question whether many people -- and even a majority of Congress members -- were fully aware of the amendment that had been attached to the Act. It was sponsored by two "border state" senators, John Cornyn of Texas and Jon Kyl of Arizona, and it affects illegal immigrants more than any other group.
DNA collection involves officials using a mouth swab or a finger prick to collect a sample. The sample then goes to the FBI lab for processing. Once the lab completes its analysis, the FBI puts the information into a national DNA database called CODIS, which is accessible by federal, state and local law enforcement agencies, including crime-lab personnel. Anyone with access can search the database to see if there are any matches for an unknown DNA sample found at a crime scene or for a known sample obtained from a person suspected of a crime.
Previous federal laws regarding the gathering of DNA from someone in law-enforcement custody allowed a sample to be collected from an individual only after he or she had been convicted of a crime.
The new law puts DNA collection on the same level as fingerprint collection. It allows federal agents to collect DNA whenever an American is arrested on federal charges, before any trial, and to collect DNA from an illegal immigrant who is detained by federal authorities for any reason at all. Title X of the bill renewing the Violence Against Women Act (H.R.3402) amends the DNA Identification Act of 1994 "to repeal a provision prohibiting the DNA (deoxyribonucleic acid) profiles from arrestees who have not been charged with a crime from being included in the National DNA Index System [a subsystem of CODIS]" and amends the DNA Analysis Background Elimination Act of 2000 "to authorize the Attorney General to: (1) collect DNA samples from individuals who are arrested or from non-U.S. persons who are detained under US authority; and (2) authorize any other federal agency that arrests or detains individuals or supervises individuals facing charges to so collect DNA samples."
Those in favor of the new law cite the benefits of DNA resources in solving and preventing violent crime. According to many law-enforcement officials and groups working to end violence against women, the more DNA there is on file, the lower the possibility of repeat offenses by a single criminal. Having DNA on file makes it more likely to catch violent criminals and successfully convict them, ending their assault career. Some officials also point to the usefulness of being able to make a DNA link when tracking suspected terrorists, who typically use aliases, and tying them to evidence of terrorist activity found in abandoned safe houses and at crime scenes.
But to some, the privacy implications of the new law overwhelm the positives in crime fighting. Groups like the ACLU and even the Innocence Project -- an organization that has gotten dozens of innocent convicts released from prison based on DNA evidence -- notes that DNA provides a lot more information about a person than a fingerprint does. A fingerprint only identifies; DNA identifies, reveals a person's genetic mutations, propensity for certain diseases and conditions, mental defects and countless other pieces of very personal information. And while a convict is legally stripped of certain rights to privacy, the people subject to this new law are not convicts. Someone who is wrongly detained or arrested may end up with his or her DNA on file. Illegal immigrants most likely can't get their DNA removed from the database; others need a court order to do so. Many also see the law as drawing an automatic link between "illegal immigrant" and "potential sex offender," reading it as a step toward the widespread legalization of racial profiling.
Public safety, ethical and legal considerations aside, there are practical implications to the new law that may end up overshadowing the debate about its social consequences. It appears that the amendment did not include an increase in funding for the FBI crime lab. In 2006, the FBI's DNA lab received about 96,000 DNA samples, and the lab has a backlog of 150,000 unprocessed samples as of February 2007. The influx from the new law could be up to 1 million additional samples per year. That increase could bog down the FBI lab to the point that it's unable to provide critical information when it's needed.
For more information on DNA collection, the FBI processing lab and related topics, check out the following links:
- H.R.3402. The Library of Congress. http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.03402:
- Preston, Julia. "U.S. Set to Begin a Vast Expansion of DNA Sampling." The New York Times. Feb. 5, 2007.
- "U.S. plans expanded DNA collection." UPI. Feb. 4, 2007. http://www.dailyindia.com/show/110866.php/ US-plans-expanded-DNA-collection
- Willing, Richard. "Detainee DNA may be put in database." USA TODAY.com. Jan. 19, 2007. http://www.usatoday.com/news/washington/ 2007-01-19-detainee-dna_x.htm