Will Oklahoma Authorities Collect DNA from the Accused?

For Maggie Zingman, the scenario is clear, although still just a hope.

A man is arrested on criminal charges in Oklahoma and booked into jail. Officers swab the inside of his cheek, and a DNA profile extracted from the swab is submitted to a DNA database.

Later, in Tulsa, authorities order a routine check to compare DNA evidence from a 2004 rape and murder to profiles in the DNA database. And this time they get a hit: The man booked into jail becomes the prime suspect in the unsolved rape and murder of 18-year-old Brittany Phillips, Zingman’s daughter.

“I won’t stop,” said Zingman, referring to her efforts to catch her daughter’s killer and to advocate for expanding DNA collection. “The sooner we can change these laws, the sooner parents won’t have to go through what I’ve gone through.”

Zingman, 58, a psychologist who now lives in Lawton, has been on a crusade for years to have Oklahoma require that DNA be collected from suspects at the time of arrest, not just conviction, for certain crimes. Now the possibility that the state Legislature will pass such a law may be greater than ever, thanks to a U.S. Supreme Court ruling that upheld collection of DNA from arrestees.

However, the proposal, which was introduced but not voted on in the last regular state legislative session, still faces two major hurdles.

One is opposition from civil-rights groups worried that expanded DNA collection will violate the privacy rights of people who haven’t been convicted of any crime. Legal challenges to DNA collection from arrestees continue, including a major case in California.

The second issue is cost. Oklahoma already faces a backlog in processing DNA from crime scenes and convicted offenders, with authorities relying heavily on federal funding to process samples. It’s unclear how collection of additional DNA samples from arrestees would be paid for.

DNA Collection Expands

More than two dozen states have approved the gathering of “arrestee DNA” under varying rules, including Louisiana, Texas, Kansas, Arkansas and New Mexico. Oklahoma collects a small number of DNA samples from arrestees who are in the country illegally.

The Oklahoma bill proposes to expand DNA collection to those arrested on suspicion of committing felonies or 18 misdemeanor crimes. DNA would be collected at the initial court appearance.

“The legislation passed committee, and when it was brought to the floor, I had several people who questioned whether or not it was constitutional,” said the bill’s author, Sen. Clark Jolley, R-Edmond.

In June, the U.S Supreme Court voted 5-4 to uphold the legality of a Maryland law that allows DNA to be collected upon arrest, rejecting the argument that swabbing constitutes an illegal search. The decision opens the door to more widespread collection of arrestees’ DNA.

Jolley said he plans to push for his legislation again in the 2014 session.

Oklahoma Proposal

Oklahoma first established a DNA database in the mid-1990s, entering the profiles of criminals convicted of the most violent offenses. In 2006, a law took effect that expanded collection to incarcerated and newly convicted felons. Since 2009, collection has been expanded to include those convicted of various misdemeanors, including domestic abuse, resisting arrest, lower-level drug possession and DUIs that result in personal injury.

DNA database matches have aided 1,431 Oklahoma investigations so far, according to FBI records updated in September.

Last year, Oklahoma authorities gathered about 7,600 new DNA samples from convicted offenders, submitting them for analysis to the Oklahoma State Bureau of Investigation. DNA profiles become part of the FBI’s national DNA system.

Jolley’s bill proposes expanding DNA collection to arrestees for the same types of crimes for which DNA is obtained from convicted offenders.

If the bill passes, the number of tests would likely increase, although exactly how many is unknown because many arrestees are ultimately convicted and have their DNA collected anyway.

Last year, about 24,400 arrests, including of repeat offenders, were made in Oklahoma for the FBI index crimes of murder, rape, robbery, aggravated assault, burglary, larceny, motor vehicle theft and arson, according to FBI data. For all crimes, there were 142,976 arrests.

Civil-Rights Issue

Advocates of obtaining DNA from arrestees say it will help solve serious crimes. They equate taking a simple cheek swab from a suspect to taking fingerprints. Supreme Court Justice Anthony Kennedy wrote in the court’s majority opinion that the practice “is a reasonable search that can be considered part of a routine booking procedure.”

Civil-rights advocates view the effort as invasive, pointing out that suspects are innocent until proven guilty and a database of many Americans’ DNA could lead to abuses. African-Americans also could be disproportionately affected because they are arrested more often, opponents warn.

“This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane,” Justice Antonin Scalia wrote in dissent.

In most states that collect DNA upon arrest, the DNA is supposed to be expunged if charges are dismissed or the suspect is acquitted. But in 18 states the accused must initiate the expungement, and few expungements occur in those states, according to study released in May by the Urban Institute, a Washington, D.C., group.

In Oklahoma, Jolley’s bill didn’t outline expungement requirements, stating that those rules would be set by the OSBI.

Brady Henderson, legal director for the American Civil Liberties Union of Oklahoma, said the group sees a big distinction between gathering DNA from suspects in rape and murder cases, where DNA can play a vital role in proving the case, and collecting it from the accused in a wide variety of crimes.

Henderson said he worries about government having an attitude to “collect all this stuff on the off chance that we need it.”

He added that he thinks the issue of collecting arrestees’ DNA will wind up again before the Supreme Court.

In California, a legal brief filed in a challenge to the arrestee DNA law points out that the Maryland law considered by the high court covers only “a small set of very serious felonies” while California’s applies to all felonies.

Questions of Cost

Cost could be a large barrier to expanding DNA collection.

Jolley’s bill did not set aside funding to pay for additional DNA tests, although “I think the state has to pay for the testing,” Jolley said. “I don’t think that’s something that the local law enforcement agencies should be expected to do.”

No state study has been conducted on the potentially higher costs.

“Clearly, when we talk about passing it, it will probably include language, ‘contingent on the availability of funding,’” Jolley said.

Ryan Porter, a forensic biology supervisor with the OSBI, said it costs $15.10 for the state’s crime lab to process a convicted-offender sample, and that is based only on the cost of materials.

Oklahoma now relies heavily on federal funding to handle DNA cases whose numbers have grown in part because law-enforcement agencies have increased their collection of crime-scene DNA evidence.

As of September, Oklahoma’s FBI-linked database had 116,977 profiles of individuals and 3,583 forensic profiles taken from crime scenes.

The OSBI is working with law enforcement groups to reduce the number of unnecessary crime-scene samples submitted by agencies.

J.D. Lindstrom, a DNA expert with OSBI, said in a research report last year to the National Institute of Justice that because of expanded DNA collection and no additional funding, the OSBI relies significantly on federal grants to pay for DNA analysis.

In the last three years, the OSBI was awarded federal grants totaling about $1.9 million. The most recent grant of $611,521 pays for three technicians’ salaries as well as supplies.

Without the federal funding, “the OSBI would have to drastically reduce the number of DNA cases and database samples being processed,” the bureau’s 2013 grant application states.

The bureau’s biology and DNA database operations have recently suffered a net $200,000 budget cut, said Porter, of the OSBI.

The federal grants aim to reduce backlogged cases. At the end of last year, the OSBI had a backlog of 22 convicted-offender samples more than 30 days old. Its backlog of forensic biology and crime-scene DNA totaled 450 cases, a 70 percent increase over the previous year.

Convicted offenders pay for some of the costs. People submitting samples under state law are required to pay $15 to cover collection costs, unless the sample is taken at the Department of Corrections’ intake facility.

In the end, a key question is whether expanding DNA collection to arrestees will improve public safety to an extent worth the cost in dollars and risks to privacy.

In a 2009 study on gathering arrestees’ DNA, the Denver District Attorney’s Office reported it identified five men who had been arrested without having DNA collected, then later committed violent crimes that weren’t initially solved. With crime-scene evidence from those crimes, the cases “could have been solved immediately through a DNA match” to a DNA profile collected at the earlier arrest, the report said.

The Urban Institute report, however, found that to date no systematic study has been conducted confirming the public-safety benefits of collecting arrestees’ DNA.

“The question is, what’s the tradeoff? Where’s the money not going?” said Julie Samuels, a senior fellow at the Urban Institute who helped author the study. “Are there better places in law enforcement to spend it?”

Jaime Adame is a freelance writer based in Tulsa.

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