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Category: Criminal Procedure

5

Should We All Be in the National DNA Database?

dna4.jpgThe Senate recently voted to reauthorize the Violence Against Women Act. But nestled in the Act was an amendment by Senator Jon Kyl (R-Arizona) to add arrestee information to the national DNA database. The national DNA database, which is run by the FBI, is called the Combined DNA Index System (“CODIS”), and it includes DNA from over two million convicted criminals. This DNA is used to identify matches with DNA found at crime scenes.

In a press release, Senator Leahy (D-Vermont) states:

Regrettably, this important bill was saddled in Committee with an extraneous and ill-considered amendment, offered by Senator Kyl, relating to the national DNA database. Current law permits States to collect DNA samples from arrested individuals and to include arrestee information in State DNA databases. In addition, States may use arrestee information to search the national DNA database for a possible “hit.” The only thing that States may not do is upload arrestee information into the national database before a person has been formally charged with a crime.

Under the Kyl amendment, arrestee information can go into the national database immediately upon arrest, before formal charges are filed, and even if no charges are ever brought. This adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent. It could also provide an incentive for pretextual and race-based stops and arrests for the purpose of DNA sampling. Congress rejected this very proposal less than a year ago, after extended negotiations and consultation with the Department of Justice.

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4

The USA-PATRIOT Act: A Fraction of the Problem

usa-patriot1.jpgOver at Legal Affairs Debate Club, Geoffrey Stone and Judge Richard Posner are debating the USA-PATRIOT Act. The focus of the debate thus far is on Section 215 of the USA PATRIOT Act, which states:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Further, this section requires that the person ordered to turn over the materials shall not “disclose to any other person . . . that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

Stone calls for curtailing Section 215 and Posner comes out in favor of a modified version of it.

The problem with this debate, as with many debates over the USA-PATRIOT Act, is that it is focused only on the USA-PATRIOT Act. Many of the issues that people are debating about already existed in federal electronic surveillance law before the USA-PATRIOT Act.

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