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Revised 'arrestee DNA' bill has merit if narrowly tailored

Aug 12, 2014 | by Lynn Powell

by The Oklahoman Editorial Board Published: August 10, 2014

STATE Rep. Lee Denney has led efforts to expand DNA testing in order to help Oklahoma law enforcement solve violent crimes. The Republican-controlled Legislature hasn’t gone along yet. Might that change in 2015?

Denney, R-Cushing, hopes so. She’ll use an interim study this fall to further investigate the idea and try to gauge support. She has a 2013 U.S. Supreme Court ruling on her side.

In that 5-4 ruling in a Maryland case, the court said it’s OK for police to take a DNA swab from persons arrested for felonies. The law in Maryland allows for DNA collection if a person is charged and a judge has found probable cause that he or she committed a crime.

Twenty-eight states have laws that allow for “arrestee DNA” to be collected under varying circumstances. Oklahoma law allows for testing of those convicted of violent crimes and some other offenses. Denney has tried to expand that to allow DNA swabs upon arrest.

She says her focus now is on obtaining DNA samples after a judge has determined there is probable cause and the defendant has been bound over for trial. The law also would apply only to those accused of felonies that require a person, upon conviction, to serve 85 percent of their sentence before becoming eligible for parole.

The legal director for the American Civil Liberties Union of Oklahoma argues Denney’s proposal may violate the Constitution’s protection against unreasonable searches and seizures. Some in the Legislature share those concerns. “Can you search a man’s house without a search warrant?” state Rep. Jerry McPeak, D-Warner, asked early this year. “Then why in the world would you search a man’s body without a search warrant? Does that make any sense at all?”

The U.S. Supreme Court says yes, it does. In writing for the majority, Justice Anthony Kennedy said DNA swabbing is “like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

This latest push for DNA testing seems worthy, but the following concerns must be addressed:

How much will additional testing cost, and can the state afford to pay it? Sen. Clark Jolley, R-Edmond, who has backed DNA testing of arrestees, has said paying should be the state’s responsibility, not local law enforcement’s. He’s right.

The director of the Oklahoma State Bureau of Investigation, Stan Florence, is among the witnesses scheduled to speak before Denney’s interim study group. Florence should be able to shed some light on the cost question, and on whether the OSBI can handle the additional workload.

How will expungement from the DNA database be handled for those who are acquitted or have charges dropped? Some states require the accused to begin that process, which strikes us as an unfair burden.

Can lawmakers leave well enough alone? Denney has certain crimes in mind for her DNA bill. But through the years, lawmakers have significantly expanded the original list of “85 percent” crimes. The roster of qualifying “arrestee DNA” crimes in any proposed legislation must be short and stay that way.

Denney is passionate about being able to use DNA because, as she said recently, “it implicates the guilty and exonerates the innocent.” Yet her law-and-order, tough-on-crime colleagues haven’t bought in thus far, perhaps wary of government overreach.

Any actual legislation that results from Denney’s efforts must be narrowly tailored to meet constitutional muster. A broader standard would be of concern.


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