DNA Collection Rules Criticized

Proposal Unclear on When to Take, Expunge Samples, Some Say

Leading black lawmakers and civil rights activists accused the administration of Maryland Gov. Martin O'Malley (D) yesterday of reneging on safeguards in a new law that expands police powers to collect DNA samples from crime suspects.

The critics said that regulations proposed by the Maryland State Police in how the law will be implemented fail to ensure that officers take DNA samples only when someone is formally charged with certain violent crimes, not when arrested. That was a key change that the Legislative Black Caucus had negotiated with O'Malley officials before the General Assembly passed the bill this year.

The caucus, the American Civil Liberties Union of Maryland, the Maryland NAACP and the state public defender's office also said the regulations do not clearly explain procedures for expunging DNA samples from the records of suspects who are found not guilty, nor do they prevent police from using partial matches to pursue relatives they think might have committed crimes.

"It's a blatant example of someone trying to dilute the law," said Sen. Verna L. Jones (D-Baltimore), who was chairman of the caucus when the bill was passed. "If they're not going to be fair and aboveboard with us, they should not have entered negotiations just to get legislation passed."

One of the governor's top advisers on criminal justice policy accused the civil liberties union of stirring up a storm over the regulations to bring attention to its opposition to DNA testing and said the regulations comply with every provision of the new law.

"The bottom line is, the ACLU just doesn't like this law and has never liked it from the get-go," said Kristen Mahoney, director of O'Malley's Office of Crime Control and Prevention. "It's a defense attorney strategy: Create a little doubt. What good would it do me to have put out regulations that contradict the law?"

Mahoney said the regulations, issued last month in time to begin training police officers and state prosecutors this week on how, when and from whom to take DNA samples, were vetted by the attorney general's office, several state's attorneys and area police chiefs.

"They went through the law line by line to make sure there was corresponding language in the regulations," she said. The law takes effect in January.

The DNA bill was a top priority for O'Malley during the General Assembly session. A crime-fighting tool used in dozens of states including Virginia, DNA collection quickly proved controversial. Opponents said that collecting samples from suspects when they are arrested was too intrusive and violated the civil liberties of those who are exonerated.

The state's previous policy was to take samples for its database after convictions.

The black caucus and ACLU officials said they think the regulations allow police to take a sample from an "arrestee," which they interpret as someone being booked but not charged. But Mahoney called an "arrestee" a person against whom a written accusation of a crime has been made. At that point, she said, the law allows police to take a DNA sample.

"If you take the word arrestee at face value and define it as you want, you could be very upset," she said.

As for expunging a sample if charges are dropped or a suspect is cleared, critics said the regulations don't give clear instructions on how to make sure the samples are removed from federal databases.

"We're very concerned the expungement provision does not ensure destruction," said Del. Aisha N. Braveboy (D-Prince George's). Mahoney said the expungement process is automatic.

The black caucus has called for legislative hearings on the regulations and vowed to press the administration to change them.

O'Malley spokesman Rick Abbruzzese said the administration worked with the caucus "all the way through the process."

"Throughout, we were very sensitive to the issues they raised," he said.