FAIR PLAY / SUBSTANTIAL JUSTICE

DOJ DNA JIC, immigrants

Posted in Uncategorized by Ryan Locke on January 11, 2009

says Ryan.  That’s the Department of Justice wants your DNA just in case, immigrants.

From the L.A. Times:

Beginning today, the U.S. government will collect DNA samples from people arrested and detained for suspected immigration violations, despite concerns that the move violates their privacy rights.

The new Justice Department policy also will expand DNA collection to people arrested on suspicion of committing federal crimes. Previously, the government only obtained DNA from people convicted of certain crimes.

David Leopold, the national vice president of the American Immigration Lawyers Assn., said the DNA collection was part of a federal trend to treat immigrants as criminals, even though they were civil detainees. Many detained immigrants, for example, are housed in county jails alongside suspected and convicted criminals.

Leopold said he also worried that some of those detained and forced to give DNA would turn out to be U.S. citizens.

Two issues here: (1) collecting DNA from immigrants about to be removed and (2) collecting DNA from immigrants accused of crimes.

(1) Collecting DNA from immigrants about to be removed

Should we collect DNA of people convicted of crimes?  Probably.  I don’t think there’s much of a privacy concern there — you waived that right when you committed a crime.  Should we collect DNA of people who violate civil laws?  Eh.  That’s one problem here.  “Illegal” immigrants are actually “unlawful” immigrants — it’s not a crime to enter the US illegally, or overstay your visa, etc.

Should we collect DNA for other civil violations?  Like, should the IRS collect DNA from people who violate the tax code?  What about for someone caught with an open container of alcohol in public?  For speeding tickets?

Maybe immigrants who commit civil violations are more likely as a class to commit crimes where we could use DNA to solve them, so we should collect their DNA for civil penalties.  Tax evaders probably aren’t more likely to commit crimes, but what about the open container people?  33% of all sexual assaults occur when the perpetrator is intoxicated.  That seems risky enough to compel DNA collection.

Anyway, this issue seems okay — if we’re booting you from our country, we should probably be allowed to take biometric data about you.  Last century’s fingerprint is this century’s DNA.

(2) Collecting DNA from immigrants accused of crimes

This issue is thornier.  Note that you don’t need to be convicted of a crime, merely accused of one (which I’m assuming means arrested or indicted).

First problem: Is this DNA for identification purposes or prosecutorial purposes?  Like, if an immigrant is accused of killing someone in a fight and there’s skin underneath the victim’s fingernails, will we use the defendant’s DNA to try and make a comparison match?  Normally we’d need a warrant for the defendant’s DNA — Fourth Amendment search and seizure and all that.  But here we don’t.  Is that constitutional?

What if we haven’t arrested anyone yet, but we have one immigrant suspect and one US citizen suspect.  We could easily eliminate or confirm the immigrant suspect by arresting him and getting the DNA automatically.  Should we do that?  What if we can’t arrest him for the murder — say there’s enough evidence for suspicion, but not enough for an arrest.  Should we just follow him around until he jaywalks or something and then arrest him?

What if we arrest a citizen and take his DNA thinking he’s an immigrant.  Do we still get to analyze the DNA?  What if that DNA turns out to match the killing — do we get to use it then?  What if it doesn’t match anything, but he happens to be involved in some civil suit where the opposing party wants his DNA.  Can they subpoena it from the police?

What if we arrest an immigrant and take his DNA, but then he ends up being innocent.  Is the DNA destroyed?  Is it stored?  For how long?

For all the DNA generally, how can it be used?  Could a health insurance company subpoena it as part of a preexisting condition lawsuit?  What about if an immigrant becomes a citizen — is it destroyed then?

So, lots of problems with that second part, especially when we have an established process for obtaining DNA in criminal cases that comports with the Fourth Amendment.

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