“It is one thing to require a DNA sample from someone convicted of crime and quite another to require DNA from someone arrested for a crime. The latter, civil rights advocates argue, is a bridge too far and unconstitutional.”
Over the years, Maggie Zingman’s Toyota RAV4 has been hard to miss here and elsewhere. Emblazoned on the pink and purple vehicle are large photographs of her late daughter Brittany Phillips, 18, who was raped and murdered Sept. 30, 2004, at her east Tulsa apartment.
Zingman has traveled thousands of miles, to almost every state, pursuing leads and trying to raise awareness about what she says on her Website are “weak DNA/rape laws.”
Some 1,700 DNA samples of convicted felons so far have been compared with DNA found at Brittany’s murder scene with no matches. This has led a frustrated Zingman to warn that a dangerous sex offender is out there somewhere, free to strike again.
She is pushing for a new law that would require anyone arrested for certain felony offenses to submit a DNA sample. That sample, she has explained, would be kept – by number, not name – in the Oklahoma State Bureau of Investigation’s Combined DNA Index System (CODIS) database and used for comparison for unsolved crimes. In recent years, the federal government and 24 states have adopted some version of legislation requiring those arrested on certain felony offenses to submit DNA. Samples typically are stored at a crime lab where they can be linked to other state and federal DNA databanks.
This session, Sen. Clark Jolley, R-Edmond, is sponsoring Senate Bill 851, requiring those arrested for certain felony offenses to submit a DNA sample. Crimes include murder, sex offenses, burglary, domestic violence, stalking, possession of a controlled drug, several types of weapons violations, resisting arrest, causing a personal injury accident while driving under the influence, negligent homicide and breaking and entering. Anyone arrested on immigration violations also would be subject to the law.
The bill stalled last session after several lawmakers reasonably argued that including samples from suspects – not convicts – would tread on Fourth Amendment rights against unlawful search and seizure and trample on another fundamental constitutional right, the presumption of innocence.
If the lawmakers do take up Jolley’s bill this session – and time is running short to do so – they must weigh the public safety benefits of such legislation against the costs to individual rights.
Admittedly, it is a tough call.
On the one hand, similar laws elsewhere have helped authorities solve numerous cold cases – no question about it. Several reputable studies have shown that had such a collection requirement been on the books sooner, other crimes could have been prevented.
That said, it is one thing to require a DNA sample from someone convicted of crime and quite another to require DNA from someone arrested for a crime. The latter, civil rights advocates argue, is a bridge too far and unconstitutional. Several courts have not agreed.
Law enforcement, armed with evidence, argues that expanding collection to include DNA from arrestees – legally innocent people – would help solve more crimes and exonerate those wrongfully convicted.
A 2005 Chicago study found that 53 murders and rapes (over a certain period) could have been prevented had DNA samples been collected upon arrest. Yet that study failed to convince Illinois lawmakers, who later rejected expansion of the state’s DNA crime database to include arrestees.
Courts generally have upheld laws requiring compulsory collection of DNA from convicts on the theory that there is no expectation of privacy. DNA collection from arrestees, however, erodes that argument, according to a congressional study cited by the New York Times. “Courts have not fully considered legal implications of recent extension of DNA collection to whom the government has arrested but not tried or convicted,” the report said.
Proponents claim DNA samples are the “fingerprints of the 21st century.” But DNA evidence is different than fingerprints or a booking photo; it is far more sensitive information. Experts here and elsewhere warn that once a DNA sample gets into a databank it is difficult to remove. And, who bears the duty of requesting that it be expunged? In some states it is the person who’s been cleared of a crime.
This year both Massachusetts and Washington legislatures are debating the expanded DNA databank issue. There are those who vehemently believe, and I think with some justification, that if we keep moving the line about who gives DNA, there could come a time when everyone lines up and gives the government their DNA. That certainly would lead to the solving of innumerable crimes, but does anyone really want to go that far?
Collection of DNA samples would impact arrestees – those presumed to be innocent. Not collecting those DNA samples, however, impacts victims and their families who want to see crimes solved and others protected. In fact, some argue that the innocent most affected by whether there are expanded DNA databanks are the countless lives that would be saved.
I don’t envy lawmakers trying to sort this out.
Julie, Delcour, Tulsa World