[Congressional Record (Bound Edition), Volume 154 (2008), Part 5]
[Senate]
[Page 6861]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        EXPANDED DNA COLLECTION

  Mr. LEAHY. Mr. President, I was concerned to learn from the 
newspapers last week that the Federal Government is getting ready to 
publish a rule sanctioning the collection of DNA samples from all 
citizens arrested for Federal crimes and from many people detained as 
illegal immigrants. These samples may even be kept permanently as part 
of the Government's DNA database even if a person is ultimately 
exonerated.
  I have long supported the analysis of DNA evidence to catch the 
guilty and exonerate the innocent. In 2000, I introduced the Innocence 
Protection Act, which included the Kirk Bloodsworth Post-Conviction DNA 
Testing Grant Program for defendants. This program, where appropriate, 
gave defendants access to the postconviction DNA testing necessary to 
prove their innocence in those cases where the system got it grievously 
wrong. As a former prosecutor, I was acutely aware that DNA testing 
could help prevent both the conviction of innocent defendants, and the 
criminal justice nightmare of the real wrongdoer remaining undiscovered 
and possibly at large.
  In 2004, Congress passed the Innocence Protection Act as an important 
part of the Justice for All Act. Congress recognized the need for 
important changes in criminal justice forensics despite resistance from 
the current administration. The Justice for All Act authorized several 
other important programs to encourage the use of DNA evidence, which I 
strongly supported, notably including the Debbie Smith DNA Backlog 
Grant Program to eliminate the nationwide backlog of rape kits and 
other evidence awaiting DNA testing in crime labs around the country. 
That important program has helped law enforcement to find the 
perpetrators of terrible crimes throughout the country and to ease the 
ordeal that crime victims go through.
  But DNA testing, like any powerful tool--and particularly any 
powerful tool in the hands of the government must be used carefully. If 
abused, it can infringe on the privacy and civil liberties of Americans 
while doing little to prevent crime. I am concerned that the policy 
just announced may do exactly that.
  When Senator Kyl proposed the legislation that formed the basis for 
this policy, I said that it raised serious privacy concerns. Right now, 
a person's DNA can be collected immediately upon arrest, and it can be 
used immediately to search the DNA indexes for a possible ``hit.'' But 
it cannot be added to the Federal index unless and until the person has 
been formally charged with a crime. This new policy allows DNA to be 
entered for those who have been arrested but not charged.
  This change adds little or no value for law enforcement, while 
intruding on the privacy rights of people who are, in our system, 
presumed innocent. It creates an incentive for pretextual arrests and 
will likely have a disproportionate impact on minorities and the poor. 
This policy may also make it harder for innocent people to have their 
DNA expunged from government databases.
  Since I first spoke out against this provision in 2005, we have only 
seen more examples of abuses of power by this administration, including 
the Justice Department's improper firing of prosecutors for political 
reasons and the FBI's abuse of national security letter power given in 
the PATRIOT Act. In this light, the added power to collect and keep DNA 
information from potentially innocent people gives even more cause for 
concern.
  I will study the proposed rules and policy carefully, and the 
Judiciary Committee will perform careful oversight of its 
implementation. We must ensure that DNA evidence is used aggressively 
and efficiently to make us safer, but also that it is used in a careful 
and appropriate way that secures our rights and increases our 
confidence in our justice system.

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