ACLU Letter to Congress Urging Opposition to an Amendment to H.R. 5057 Pertaining to the Collection of DNA Samples from Arrestees (7/14/2008)
Vote No on H.R. 5057 the Debbie Smith Reauthorization Act of 2008 Unless the Schiff Amendment Forcing the Collection of DNA Samples from Arrestees – Not those Convicted – is Removed from H.R. 5057 Dear Member of Congress, On behalf of the American Civil Liberties Union (ACLU), a non-partisan organization with more than a half million members and 53 affiliates nationwide, we write to urge a no vote on H.R. 5057, the Debbie Smith Reauthorization Act of 2008, because of a fundamentally flawed amendment included in it. H.R. 5057 has been placed on the Suspension Calendar for a vote this week. We are not opposed to reauthorization of the Debbie Smith Act, but do oppose passage of this bill unless an amendment that was added by Rep. Adam Schiff (D-CA) to this legislation during consideration in the House Judiciary Committee on June 11, 2008 is removed. The amendment, which causes the ACLU to urge a no vote on H.R. 5057, was adopted on a vote of 19-12 in committee, and would provide incentives to states to collect DNA samples from individuals arrested for murder and any sexual offense (including misdemeanors). We view this amendment as undermining the very worthwhile and laudable goal of the underlying legislation – reducing the ever mounting backlog of unprocessed evidence from rape crime scenes. Further, this amendment violates one of the fundamental principles of American law, which is that one is to be presumed innocent until proven guilty. As a result, the Schiff Amendment’s inclusion as part of the Debbie Smith Reauthorization Act needlessly jeopardizes support for a very important and needed piece of legislation. There is no doubt that the backlog in processing rape kit evidence is hampering criminal investigations. For survivors of rape and sexual assault, justice is being delayed when evidence in these cases lies on shelves in state forensic laboratories. Reauthorizing the Debbie Smith Act would be a step in the direction of continuing the effort aimed at resolving these unconscionable backlogs. One of the primary causes of these backlogs, however, has been the heedless expansion of the databases to ever increasing categories of individuals. By incentivizing states to collect DNA samples from those merely arrested, not convicted of certain offenses, the Schiff Amendment may have the unintended effect of actually undermining the very purpose of this legislation. According to the FBI, there were 14,380,370 individuals arrested in 2006. Providing financial incentives to states to expand their DNA databases to arrestees could lead to the diversion of scarce resources from the existing work of our already underfunded and understaffed crime laboratories. Furthermore, providing states with incentives to collect DNA samples from arrestees will turn the presumption of innocence on its head, turning all arrestees who are put into the criminal database into permanent suspects for any and all future crimes. Law enforcement already has ample authority to collect DNA from an arrested individual in those cases where a court-issued warrant supported by probable cause is first obtained. DNA samples collected under these circumstances may be tested and compared with the biological evidence collected from the crime scene in question. This warrant authority strikes an appropriate balance between meeting public safety needs while ensuring that a person is not subjected to potentially lifelong genetic surveillance unless or until he or she is first convicted of a crime. While U.S. courts have generally ruled that DNA banking of convicted felons is permissible because a person who has been convicted of a crime has a “diminished expectation of privacy,” this cannot be said for those who have merely been arrested or charged with a crime. At least one state court has recognized the importance of this distinction and declared arrestee testing unconstitutional. While any arrest involves a degree of lost privacy, seizing DNA information without a showing of guilt goes well beyond the limitations the Constitution places on searches and seizures incident to an arrest. The expansion of DNA databases to arrestees would also perpetuate racial biases that are systemic to our criminal justice system. The persistent and well-documented practice of discriminatory profiling in law enforcement combined with expanded DNA collection would result in an increasingly skewed criminal database in which minorities are disproportionately overrepresented. We are not alone in opposing the taking of DNA samples from arrestees. On July 2, Governor Mark Sanford, Republican of South Carolina, vetoed a bill that would have required all individuals arrested for a felony and certain other crimes to submit DNA samples and have their DNA profiles stored on a national database. In his veto letter to State Senate President Andre Bauer, Governor Sanford wrote – “Lowering the threshold for obtaining DNA samples to felony arrest instead of conviction is particularly troubling when you consider that not even half of all felony arrests lead to felony convictions. For instance, in 2006, approximately 150,000 arrests were made, yet less than 40% of these arrests resulted in convictions. This means that this bill would require the State to take DNA samples of thousands of people who will never be convicted of the charges for which they are arrested. While the bill requires the destruction of the DNA sample in cases where someone is arrested and later exonerated, it does not address the uses of that evidence before guilt or innocence is determined. It is for this reason that the legislation appears to be about something much larger than simply criminal investigations.” DNA testing is an extraordinarily important tool that can and should be used for solving crime. But we must use this technology appropriately. The underlying Debbie Smith Reauthorization Act would move us closer to realizing the potential reduction in the rape kit backlogs that hinder us from bringing criminals to justice and closure to victims. However, the Schiff Amendment encourages states to divert their focus from resolving the rape kit backlogs, thereby undermining the goal of the original Debbie Smith Act and eroding the presumption of innocence. For these reasons, the ACLU strongly urges you to remove the Schiff Amendment from the Debbie Smith Reauthorization Act before it comes to the floor of the House of Representatives, so as not to jeopardize a much-needed piece of legislation. Thank you for taking our concerns into consideration. Sincerely, Caroline Fredrickson Director, Washington Legislative Office Timothy Sparapani Senior Legislative Counsel
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