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DNA: To Collect or Not to Collect?

by Ed Lyon

While media attention tends to focus on the use of DNA evidence to free wrongly convicted prisoners – the Innocence Project counts 365 such exonerations since the first in 1989 – far more DNA samples are collected from convicted offenders held in all 50 states and by the federal Bureau of Prisons. Additionally, 31 states allow DNA to be collected from arrestees, according to DNA Saves – a nonprofit that advocates for the practice in order to more quickly catch repeat offenders.

“I’m not concerned about violating their civil rights because by committing a crime, they’re violating someone else’s rights,” reasoned Shea Sumner, an Oklahoma resident whose former fiancé was rearrested in 2018 following an earlier felony conviction.

Louisiana was the first state to pass such a law in 1997. A similar statute went into effect at the federal level in 2009. Without fanfare, Oklahoma began collecting DNA from felony arrestees in 2018, implementing a bill passed by the state legislature two years earlier. As a result, the Oklahoma State Bureau of Investigation (OSBI) estimates that the 8,000 DNA samples it had been collecting every year from convicted prisoners would swell to about 20,000 due to the additional samples from arrestees.

“Wait. What?” said Allie Shinn with the ACLU of Oklahoma, who called the practice “an illegal search” that “flies in face of the notions of how our criminal justice system is supposed to work.”

However, a 2013 ruling by the U.S. Supreme Court found that the Constitution’s Fourth Amendment guarantee of protection from “unreasonable searches” was not violated by the practice.

That case involved a DNA sample taken from a Maryland man under a similar law in that state in 2009. When the sample was entered into the federal Combined DNA Index System (CODIS), he was matched to a six-year-old rape. Maryland’s Supreme Court vacated his subsequent rape conviction because the DNA sample was taken without a warrant and absent any underlying suspicion that would have justified a warrant. In a 5-4 decision, the Supreme Court overturned that ruling and reinstated the conviction because it found the DNA sampling was not unreasonable but was instead “a legitimate booking procedure.” See: Maryland v. King, 133 S.Ct. 1958 (2013) [PLN, Aug. 2013, p.32].

Yet with DNA testing and analysis costing up to $50 per sample, the process is not cheap. That’s why Oklahoma had a two-year delay between when its law was passed and the first DNA samples from arrestees were taken. The state began the sampling process only after receiving a $740,000 grant from the U.S. Department of Justice’s National Institute of Justice. Andrea Fielding, director of the OSBI’s Criminal Statistics division, estimated an annual budget of $500,000 will be needed to continue the process – but she believes positive results will pry the funds loose from the state legislature.

“What we know will happen, based on what other states have seen, is we’ll identify repeat offenders earlier in their [criminal] careers,” she said. “This will help catch those criminals before they can offend again. It’s going to save lives.”

By 2019, about 600 samples had been collected from Oklahoma felony arrestees and added to CODIS. Those arrested on misdemeanor charges are not subject to DNA sampling. Offenders who are later convicted of a crime based on a DNA sample are charged a $150 “laboratory analysis fee”; those whose charges are dismissed, or are acquitted, do not have to pay the fee. In the latter case, defendants can petition the OSBI to remove their DNA sample from CODIS, but removal is not automatic.

As of December 2018, a dozen law enforcement agencies in Oklahoma had begun collecting DNA samples from arrestees. Oklahoma County, which includes Oklahoma City, was one of them.

Oklahoma County Sheriff’s Office spokesman Mark Opgrande said implementing the new law meant additional work for already overworked medical staff. A deputy, Sgt. Ziakiya Byers, was assigned to help take the DNA samples, which are collected after the intake process.

“It’s just another thing to do,” Byers said. “I get a daily list that usually includes five to 20 names I have to swab.”

Ohio expanded its DNA sampling to include arrestees in 2011, but the state Department of Rehabilitation and Correction struggled to comply, not catching up until March 2013. The state Attorney General’s Office claims there have been 21,080 CODIS “hits” since 2011, a rate of 250 per month. Yet an unknown number of arrestees never had DNA samples taken.

In Delaware County, Ohio, an arrestee was convicted of possessing child pornography. His DNA was never collected – not at arrest or arraignment, not when leaving the jail after making bond or when he bonded out of court upon appealing his conviction.

Many Ohio officials have said they are still not clear when DNA is supposed to be collected and by whom. During an eight-year span from 2008 to 2016, DNA samples were not turned in for processing from 15,370 arrestees in Cuyahoga County alone.

Lucas County sheriff’s deputy Lt. Robert Chromik explained, “We’ve had some officers say they’re not going to do it [take arrestees’ DNA samples]. They’re very senior officers out on the streets and we’ve had that run-in where they’re saying they’re not going to do it.”

In 2015, the Ohio Bureau of Criminal Investigation developed a Negative Offender DNA Flag Report to “flag” arrestees whose DNA samples never arrived at the state lab. Not counting Cuyahoga County’s deficit, there were 2,900 “flags” in the seven-year period from 2011 to 2018 for the 26 law enforcement agencies that responded out of 70 queried.

Replies from those agencies ran the gamut from “We’re scratching our heads over this list,” and “It actually surprises and upsets me,” to “I’ve always thought that we do a good job of swabbing. It’s a good thing that you called me because I’ve never ran it [the DNA flag report].”

The other 44 agencies that were contacted claimed they had never heard of the DNA flag reporting system. There are approximately 800 other Ohio law enforcement agencies which were not queried about their collection of DNA samples from arrestees, meaning the failure-to-collect problem may be much more widespread. 

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Sources: npr.org, sfgate.com, postandcourier.com, lancastereaglegazette.com, oklahomawatch.org, nij.gov