Jan. 26, 2010 – The State Bar of Wisconsin’s Individual Rights and Responsibilities Section is opposing legislation that for the first time would permit the collection of DNA samples from persons when they are arrested for felonies in the state.
Current law requires the collection of DNA samples from persons convicted, not just arrested, for felonies.
Legislators introduced the bills, Assembly Bill 511 and Senate Bill 336, in October 2009. The Senate bill received a public hearing in December 2009 but the Assembly bill, which legislative leaders have referred to the Assembly Committee on Criminal Justice chaired by Representative Robert Turner, has not.
“The Individual Rights and Responsibilities Section opposes these bills because collection of a DNA specimen from any and all persons arrested on a felony charge, regardless whether they are ever actually convicted of a crime, is an overbroad and unreasonable search under the meaning of the Fourth Amendment and thus unconstitutional,” IRR section board member A. Steven Porter told legislators in a memo to both the Assembly Committee on Criminal Justice and the Senate Judiciary Committee.
“Current law allows for obtaining DNA samples from convicted felons to preserve said samples in a state data bank,” Porter added. “This information is shared and accessible by the national system. These bills make no provision for expunging and destroying DNA records for persons arrested on a felony charge, in situations where their case is either not processed or dismissed upon a ‘not guilty’ verdict or amended to a non-criminal charge.”
Under current law, the following persons are required to submit a DNA sample to the state DNA database maintained by the Department of Justice: convicted felons, persons found to be a “sexually violent person” under Chapter 980, juveniles and adults adjudicated delinquent or convicted of certain crimes specified in statute, and persons found not guilty by reason of mental disease or defect of certain felony sexual assaults. In addition, persons on probation, parole or extended supervision in Wisconsin for a crime committee in another state that would be a felony if committed in Wisconsin are also required to submit a DNA sample to the database under current law.
The legislation the IRR section is opposing requires law enforcement agencies to collect a biological specimen for DNA analysis from every adult who is arrested for a felony and every juvenile who is taken into custody for certain sexual assault offenses that would be felonies if committed by an adult.
In addition to the State Bar’s Individual Rights and Responsibilities Section, the ACLU of Wisconsin is also opposing the legislation. Media reports indicate that in December 2009, Wisconsin Attorney General J.B. Van Hollen voiced concerns about the cost of the legislation ($6.4 million in its first year and $4.1 million per year after that) as well as its potential negative effect on civil liberties.
Porter told legislators that the collection and cataloging of DNA specimens is far more intrusive into one’s privacy than the collection of fingerprints. According to Porter, unlike fingerprints, DNA samples contain genetic information that may reveal health conditions, predisposition toward disease, biological relationships between individuals and groups and information about ancestry.
Collecting DNA specimens absent a warrant or probable cause to believe that the specimen obtained would provide evidence of a crime actually committed by the person compelled to give the sample is a significant and overbroad invasion of privacy that would very likely be held to be unconstitutional, Porter also said.
“While collection of DNA specimens from a wider group of persons may appear to promise greater efficiency and certainty in solving crimes, it is not at all clear that it would actually yield such benefits,” Porter told the two legislative committees. “The recent spate of news coverage about DNA samples not being consistently obtained from convicted felons in Milwaukee County points to a need to improve and tighten the current process, not to enact a broad new law that unduly expands sample collection to include persons who have not yet been afforded due process in the court system and who ultimately may not even be convicted of crimes.”
“The privacy concerns, lack of effective expungement provisions, and increased costs of collection and processing of samples, along with increased opportunities for misuse of information collected, spurious ‘hits,’ falsified evidence and inevitably diminishing returns as more and more specimens are collected clearly outweigh and negate any supposed benefits to law enforcement investigations of widespread and indiscriminate DNA sample collection from all arrestees,” Porter told legislators.
“As Benjamin Franklin stated to the Pennsylvania Assembly in 1775, ‘They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety,’” Porter concluded.
The State Bar of Wisconsin establishes and maintains sections for carrying on the work of the association, each within its proper field of study defined in its bylaws. Each section consists of members who voluntarily enroll in the section because of a special interest in the particular field of law to which the section is dedicated. Section positions are taken on behalf of the section only.
The views expressed on this issue have not been approved by the Board of Governors of the State Bar of Wisconsin and are not the views of the State Bar as a whole. These views are those of the Section alone. If you have questions about this article, please contact Adam Korbitz, Government Relations Coordinator, at akorbitz@wisbar.orgor (608) 250-6140.
Related articles:
State Bar sections gear up for end-of-session rush - December 1, 2009
Individual Rights and Responsibilities Section fights felon disenfranchisement - October 14, 2009
State Bar anticipates busy fall legislative session – September 8, 2009
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