By Theodore Roethke
In December 2008, the U.S. Department of Justice released regulations to implement a law, the DNA Fingerprint Act of 2005 passed by Congress in 2005. The next day, the Asian Law Caucus issued a press release condemning the new regulations. The regulations set up a program to forcibly collect DNA samples from all federal arrestees and all “non-U.S. persons” detained by the immigration authorities. Last week, I went on KPFA’s radio show, Apex Express, to talk about why the DNA collection program is ill-advised, unconstitutional, and damaging to immigrants and the broader United States for at least three reasons.
#1 The DNA Fingerprint Act of 2005 is unconstitutional.
For some time, the federal government has provided for the forcible collection of DNA samples from convicted criminals. This has been upheld as constitutional by the federal courts. In the case U.S. v. Kincade, the Ninth Circuit Court of Appeals recognized that the collection of DNA is a “search” or “seizure” and therefore implicates the Fourth Amendment. But the court said that “lawfully adjudicated criminals['] . . . proven conduct substantially heightens the government’s interest in monitoring them” because people convicted of crimes are “more likely than the ordinary citizen to violate the law.” Therefore, the court said, convicts have a diminished expectation of privacy which makes the forcible collection of DNA a “reasonable” search or seizure under the Fourth Amendment.
This rationale simply does not apply to arrestees or non-citizens detained in immigration detention. People arrested for a crime are innocent until proven guilty. They are not “lawfully adjudicated criminals.” There is no “proven conduct.” There is only suspicion.
And non-citizens in immigration detention, for the most part, do not even stand accused of a crime. Immigration is a “purely civil,” administrative matter, not a criminal matter. This is an important distinction. Non-citizens in deportation proceedings are not guaranteed a lawyer by the Constitution like a person in most criminal proceedings. The courts have upheld this because of that distinction between immigration and criminal matters. As a nation of law, we cannot choose to make a distinction when doing so means the Constitution provides immigrants less protection, but then blur that same distinction later when it would appear to provide immigrants with more protection.
#2 Because the program casts a cloud of suspicion over immigrants, the means do not justify the ends.
The primary proponent of the DNA Fingerprint Act was Senator Jon Kyl, Republican of Arizona. His stated goal was to build as big a DNA database as possible because “collecting DNA at arrest or deportation will prevent rapes and murders that would otherwise be committed.” This has been echoed by some anti-crime groups. For example, in 2007, Lynn Parish of the Rape, Abuse, and Incest National Network stated that “obviously, the bigger the database, the better.” And the Justice Department adopted this wholesale when it issued the regulations. The stated purpose of the program is to “facilitate the solution of crimes through database searches that match crime scene evidence to the biometric information that has been collected from individuals.”
The ends, however, do not justify the means. As a society, we have to ask ourselves whether we are comfortable with mandatory DNA collection of all persons. Do we want to live in a “total information society” where everything about us is stored in a database? If you are like me, I suspect your answer will be no. But if the answer is no, then why collect DNA samples from arrestees and immigrant detainees? I have already written about how the rationale for collecting DNA does not apply to these groups. If the rationale does not apply, why draw the line here?
The Justice Department says, “the implication of individuals in criminal activity to the extent of being arrested sufficiently supports the taking of certain identification information from such individuals.” In other words, because you’re suspected of a crime, we get to take your DNA. If that seems weak, just wait. The Justice Department’s justification for taking immigrants’ DNA is even weaker: because some immigrant detainees could be charged with some very minor crimes – the two crimes they cite are “improper entry” (entering the U.S. not at a border checkpoint) and “illegal reentry” (entering the U.S. after being deported) – therefore all immigrant detainees should have their DNA forcibly collected even if none are charged with crimes. Flimsy? Yes. I already wrote about how arrestees should not have their DNA collected anyway. If the government wants to charge these people with a minor crime, afford them all the protections of the criminal process, and then collect the DNA, they are already able to do so. But they should not be allowed to take short cuts.
So what is really going on here? It has to be one of two things. Either the proponents of this law really do want to live in a total information society, but could not muster political support for it and resorted to singling out unpopular groups like immigrants, or they think that immigrants are more likely than others to commit rapes and murders and that is why they should be singled out! In the end, however, it does not matter what actually motivated the authors of the law. The law speaks with its own voice, and it casts a cloud of suspicion over immigrants. This huge cost to our national civil discourse does not justify the modest gains in law enforcement that will emerge from the sampling program.
#3 The Justice Department’s program goes beyond the law which authorized it.
Under the new regulation, the government is authorized to collect DNA from “non-U.S. persons” detained by immigration authorities. U.S. citizens and permanent residents are supposed to be excluded from the DNA collection program. But the new regulation is flawed because it fails to include safeguards to prevent U.S. citizens and permanent residents from being subjected to forcible DNA collection.
Last spring, when the draft regulations were announced, I submitted comments, proposing that the government change the proposed rule to include safeguards, such as delaying DNA collection until a person’s status had been determined by an Immigration Judge. In their comments accompanying the new regulations, the Justice Department rejected those suggestions, stating that DNA would be collected as part of the “booking procedure” and that suspicion of non-U.S. person status would be a “sufficient basis for the collection” of DNA. The Justice Department said that immigration authorities would be able to consider whether someone is a U.S. citizen.
But the immigration authorities already fail to detect citizens mistakenly placed in immigration detention. There have been a numerous recent high profile cases of U.S. citizens being detained or deported, including a mentally impaired citizen from California who was deported to Mexico and went missing for several months, a citizen from California who was illegally deported twice and detained even after his mother presented his birth certificate to the immigration authorities, a citizen from Minnesota let go only after a U.S. Senator demanded his release, a citizen who was held in detention for 13 months, even after he produced documentation proving his citizenship, and two Bay Area citizens represented by the Asian Law Caucus who were locked up for months before the immigration authorities agreed they were citizens.
Because of the lack of safeguards, the DNA collection program goes even beyond the law which authorized it. It is almost certain that this failed program will result in the unauthorized collection of DNA from citizens or permanent residents. And unlike people whose DNA is collected after their arrest, who can get their DNA expunged from the database if the charges are dismissed, DNA collected by the immigration authorities cannot be expunged.
The government should halt this unconstitutional, illegal, and harmful program!
Theodore Roethke is a staff attorney and Equal Justice Works Fellow at the Asian Law Caucus. His work focuses on protecting the rights of non-citizens facing overreaching national security related immigration charges. He is a graduate of Macalester College and Columbia Law School.